No Easy Answers
Tuesday, September 26, 2006
National Intelliegence Estimate Declassified Sept 26, 2006
September 26, 2006
Declassified Key Judgments of the National Intelligence Estimate
Declassified Key Judgments of the National Intelligence Estimate
Source: http://www.dni.gov/press_releases/Declassified_NIE_Key_Judgments.pdf
Declassified Key Judgments of the National
Intelligence Estimate "Trends in Global Terrorism:
Implications for the United States" dated April 2006
Key Judgments
United States-led counterterrorism efforts have seriously damaged the leadership of
al-Qa'ida and disrupted its operations; however, we judge that al-Qa'ida will continue to
pose the greatest threat to the Homeland and US interests abroad by a single terrorist
organization. We also assess that the global jihadist movement--which includes al-
Qa'ida, affiliated and independent terrorist groups, and emerging networks and cells--is
spreading and adapting to counterterrorism efforts.
· Although we cannot measure the extent of the spread with precision, a large body
of all-source reporting indicates that activists identifying themselves as jihadists,
although a small percentage of Muslims, are increasing in both number and
geographic dispersion.
· If this trend continues, threats to US interests at home and abroad will become
more diverse, leading to increasing attacks worldwide.
· Greater pluralism and more responsive political systems in Muslim majority
nations would alleviate some of the grievances jihadists exploit. Over time, such
progress, together with sustained, multifaceted programs targeting the
vulnerabilities of the jihadist movement and continued pressure on al-Qa'ida,
could erode support for the jihadists.
We assess that the global jihadist movement is decentralized, lacks a coherent global
strategy, and is becoming more diffuse. New jihadist networks and cells, with anti-
American agendas, are increasingly likely to emerge. The confluence of shared purpose
and dispersed actors will make it harder to find and undermine jihadist groups.
· We assess that the operational threat from self-radicalized cells will grow in
importance to US counterterrorism efforts, particularly abroad but also in the
Homeland.
· The jihadists regard Europe as an important venue for attacking Western interests.
Extremist networks inside the extensive Muslim diasporas in Europe facilitate
recruitment and staging for urban attacks, as illustrated by the 2004 Madrid and
2005 London bombings.
We assess that the Iraq jihad is shaping a new generation of terrorist leaders and
operatives; perceived jihadist success there would inspire more fighters to continue the
struggle elsewhere.
· The Iraq conflict has become the "cause celebre" for jihadists, breeding a deep
resentment of US involvement in the Muslim world and cultivating supporters for
the global jihadist movement. Should jihadists leaving Iraq perceive themselves,
and be perceived, to have failed, we judge fewer fighters will be inspired to carry
on the fight.
We assess that the underlying factors fueling the spread of the movement outweigh its
vulnerabilities and are likely to do so for the duration of the timeframe of this Estimate.
· Four underlying factors are fueling the spread of the jihadist movement: (1)
Entrenched grievances, such as corruption, injustice, and fear of Western
domination, leading to anger, humiliation, and a sense of powerlessness; (2) the
Iraq "jihad;" (3) the slow pace of real and sustained economic, social, and
political reforms in many Muslim majority nations; and (4) pervasive anti-US
sentiment among most Muslims--all of which jihadists exploit.
Concomitant vulnerabilities in the jihadist movement have emerged that, if fully exposed
and exploited, could begin to slow the spread of the movement. They include
dependence on the continuation of Muslim-related conflicts, the limited appeal of the
jihadists' radical ideology, the emergence of respected voices of moderation, and
criticism of the violent tactics employed against mostly Muslim citizens.
· The jihadists' greatest vulnerability is that their ultimate political solution--an
ultra-conservative interpretation of shari'a-based governance spanning the
Muslim world--is unpopular with the vast majority of Muslims. Exposing the
religious and political straitjacket that is implied by the jihadists' propaganda
would help to divide them from the audiences they seek to persuade.
· Recent condemnations of violence and extremist religious interpretations by a few
notable Muslim clerics signal a trend that could facilitate the growth of a
constructive alternative to jihadist ideology: peaceful political activism. This also
could lead to the consistent and dynamic participation of broader Muslim
communities in rejecting violence, reducing the ability of radicals to capitalize on
passive community support. In this way, the Muslim mainstream emerges as the
most powerful weapon in the war on terror.
· Countering the spread of the jihadist movement will require coordinated
multilateral efforts that go well beyond operations to capture or kill terrorist
leaders.
If democratic reform efforts in Muslim majority nations progress over the next five years,
political participation probably would drive a wedge between intransigent extremists and
groups willing to use the political process to achieve their local objectives. Nonetheless,
attendant reforms and potentially destabilizing transitions will create new opportunities
for jihadists to exploit.
Al-Qa'ida, now merged with Abu Mus'ab al-Zarqawi's network, is exploiting the
situation in Iraq to attract new recruits and donors and to maintain its leadership role.
· The loss of key leaders, particularly Usama Bin Ladin, Ayman al-Zawahiri, and
al-Zarqawi, in rapid succession, probably would cause the group to fracture into
smaller groups. Although like-minded individuals would endeavor to carry on the
mission, the loss of these key leaders would exacerbate strains and disagreements.
We assess that the resulting splinter groups would, at least for a time, pose a less
serious threat to US interests than does al-Qa'ida.
· Should al-Zarqawi continue to evade capture and scale back attacks against
Muslims, we assess he could broaden his popular appeal and present a global
threat.
· The increased role of Iraqis in managing the operations of al-Qa'ida in Iraq might
lead veteran foreign jihadists to focus their efforts on external operations.
Other affiliated Sunni extremist organizations, such as Jemaah Islamiya, Ansar al-
Sunnah, and several North African groups, unless countered, are likely to expand their
reach and become more capable of multiple and/or mass-casualty attacks outside their
traditional areas of operation.
· We assess that such groups pose less of a danger to the Homeland than does al-
Qa'ida but will pose varying degrees of threat to our allies and to US interests
abroad. The focus of their attacks is likely to ebb and flow between local regime
targets and regional or global ones.
We judge that most jihadist groups--both well-known and newly formed--will use
improvised explosive devices and suicide attacks focused primarily on soft targets to
implement their asymmetric warfare strategy, and that they will attempt to conduct
sustained terrorist attacks in urban environments. Fighters with experience in Iraq are a
potential source of leadership for jihadists pursuing these tactics.
· CBRN capabilities will continue to be sought by jihadist groups.
While Iran, and to a lesser extent Syria, remain the most active state sponsors of
terrorism, many other states will be unable to prevent territory or resources from being
exploited by terrorists.
Anti-US and anti-globalization sentiment is on the rise and fueling other radical
ideologies. This could prompt some leftist, nationalist, or separatist groups to adopt
terrorist methods to attack US interests. The radicalization process is occurring more
quickly, more widely, and more anonymously in the Internet age, raising the likelihood of
surprise attacks by unknown groups whose members and supporters may be difficult to
pinpoint.
· We judge that groups of all stripes will increasingly use the Internet to
communicate, propagandize, recruit, train, and obtain logistical and financial
support.
Monday, September 25, 2006
Fitzgerald Pretrial Response to CIPA 5 Admissibility [Doc 147]
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 1 of 12
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
) CR. NO. 05-394 (RBW)
v. )
)
I. LEWIS LIBBY, )
also known as Scooter Libby )
GOVERNMENT'S RESPONSE TO DEFENDANT'S
MEMORANDUM CONCERNING ADMISSIBILITY OF DOCUMENTS
ON DEFENDANT'S CONSOLIDATED § 5 NOTICE
The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special
Counsel, respectfully submits the following Response to Defendant's Memorandum Concerning
Admissibility of Documents on Defendant's Consolidated CIPA § 5 Notice.
BACKGROUND
In advance of the CIPA § 6(a) hearing scheduled for September 27, 2006, this Court inquired
whether, and to what extent, defendant expected to disclose classified information through the
introduction of documents, rather than trial testimony, and if defendant seeks to introduce
documents, how hearsay objections would be overcome. Defendant filed a written memorandum
in response to the Court's inquiries on September 22, 2006.
In his memorandum, defendant stated that most of the classified documents he would seek
to introduce would be offered as evidence of the defendant's state of mind, rather than for the truth
of the matters asserted therein. Def.'s Mem. at 5-6, 7, 8. Defendant asserted that any documents (or
portions of documents) that he offered for their truth would be admissible as business records,
agency records, present sense impressions, and past recollection recorded, under Rules 803(6),
803(8)(A), 803(1), and 803(5) of the Federal Rules of Evidence.
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 2 of 12
Of course, if the designated documents are offered solely for a non-hearsay purpose, Fed. R.
Evid. 801©, then the government will have no hearsay objection; however, it may still object to the
admission of the documents on relevancy, Rule 403, executive privilege, or any other applicable
grounds. With respect to documents offered for the truth of the matters asserted therein, the
government agrees in principle with some of the legal principles set forth in defendant's
memorandum, but disagrees with others. As demonstrated below, the contents of the Presidential
Daily Briefs (PDBs) and Terrorist Threat Matrices (TTMs) do not fall within any of the hearsay
exceptions proposed by defendant, and thus would not be admissible for their truth, even if any of
them were deemed relevant and not unfairly prejudicial. In contrast, information contained in
defendant's notes likely will qualify as present sense impressions or past recollection recorded
(assuming the proper foundation is established) and thus hearsay objections to their admission will
usually be overcome, even though the notes do not, as defendant contends, qualify as business
records or a records of a public agency. Finally, documents related to the Wilson controversy may,
on a document-by-document basis, be admitted if they satisfy the requirements of one or more
hearsay exceptions or are admissible for a limited purpose.
Because all of the designated documents whether offered for the limited purpose of
establishing defendant's state of mind, or for the truth of statements contained herein must meet
the requirements of Fed. R. Evid. 401 and 403, the first and most important issues to be determined
by this Court with respect to all of the designated documents are whether the documents are relevant
and whether their admission is likely to confuse, mislead or prejudice the jury, or to waste time.
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Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 3 of 12
ARGUMENT
I. The PDBs/TTMs Are Neither Business Records Nor Public Reports.
Defendant disclaims a general intent to offer the PDBs and TTMs to prove the truth of the
matters asserted therein, Def.'s Mem. at 6, but argues in the alternative that, "if we were to offer the
. . . materials for their truth," the PDBs and TTMs are admissible as business records under 803(6)
and public records under 803(8), Def.'s Mem. at 7. Setting aside seriously questions of relevance,
unfair prejudice, and other potential objections, and presidential privilege concerns, the PDBs and
TTMs qualify for neither the business record nor the public agency record exception to the hearsay
rule. Fed. R. Evid. 803(6) provides a hearsay exception for the following:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly conducted business activity, and
if it was the regular practice of that business activity to make the memorandum, report,
record or data compilation, all as shown by the testimony of the custodian or other qualified
witness . . . unless the source of information or the method or circumstances of preparation
indicate lack of trustworthiness. The term "business" as used in this paragraph includes
business, institution, association, profession, occupation, and calling of every kind, whether
or not conducted for profit.
Fed. R. Evid. 803(6) (emphasis added). Under this rule, a fundamental requirement is that the maker
have knowledge of the information contained in the record, and that the record is made in the regular
course of the business's activities. Thus, defendant must account for all sources of information
contained in the purported business record, including information that does not come from the
business. United States v. Patrick, 959 F.2d 991, 1000-02 (D.C. Cir. 1996). In Patrick, the court
looked to the requirement of Rule 803(6) that the information come from "a person with knowledge"
and found error in the admission of a receipt from a business (offered to prove that the defendant
lived at a particular address) because the government failed to establish that the business took some
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Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 4 of 12
steps to verify the address information provided to it by a customer (presumably the defendant). See
also United States v. Baker, 693 F.2d 183, 188 (D.C. Cir. 1982); United States v. Warren, 42 F3d
647, 656-57 (D.C. Cir 1995 ("each participant in the chain producing the record from the initial
observer-reporter to the final entrant must be acting in the course of the regularly conducted
business") (citation omitted); United States v. David, 96 F.3d 1477, 1481-82 (D.C. Cir. 1996)
(government satisfied verification requirement by showing that the business employee compared
signature on the paperwork with the customer's drivers license). In the case of the PDBs and TTMs,
there is no doubt that they are compilations of information received from multiple sources, some of
whom are outside the United States government, and may even be trying to deceive the government.
Thus, defendant cannot account for the knowledge or practices of the sources of the underlying
information contained in the PDBs and TTMs, and these documents do not satisfy the requirements
of 803(6).
Nor do the PDBs or TTMs constitute public records under Rule 803(8)(A), as defendant
contends. Rule 803(8)(A) provides:
Records, reports, statements, or data compilations, in any form, of public offices or agencies,
setting forth (A) the activities of the office or agency . . . .
Fed. R. Evid. 803(8)(A). The PDBs and TTMs do not set forth the "activities" of the agency that
compiles them, but rather reflect multiple sources of information, including, ultimately, sources
outside the government. The "activities" contemplated by Rule 803(8)(A) include such matters as
"Treasury records of miscellaneous receipts and disbursements," Fed. R. Evid. 803(8), 1972
Advisory Committee Notes, not the reporting of daily intelligence information from multiple
sources. In other words, the PDBs and TTMs do not set forth the agency's own activities, but rather
4
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 5 of 12
set forth the past and predicted activities of others outside, and at times hostile to, the government.
For this reason also, Rule 803(8)(A) does not apply to those intelligence briefing materials, and they
may not be admitted for the truth of the matter asserted therein.
II. Hearsay Objections to the Admission of Information Contained in Defendant's Notes
May Be Overcome Under Certain Theories Proposed by Defendant, But Not Others.
Defendant argues that his notes may be offered for the truth of the matters asserted therein
as present sense impressions, past recollection recorded, business records and reports of a public
agency. As demonstrated below, while the government agrees that hearsay objections will not likely
serve as a substantial impediment to information contained in defendant's notes, contrary to
defendant's contention, defendant's notes are neither business records nor records of public agency
and are not entitled to admission for their truth based on those exceptions to the hearsay rule.
The government agrees that, as a general rule, entries in defendant's notes may often qualify
as present sense impressions and thus will not be excludable as hearsay. See Fed. R. Evid. 803(1),
which provides: "A statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter." In order to fall within
this exception to the hearsay rule, three requirements must be met: (1) "[t]he declarant must have
personally perceived the event described"; (2) "[t]he declaration must be a simple explanation or
description of the event"; and (3) "[t]he declaration and the event described must be
contemporaneous." Weinstein's Federal Evidence § 803.03[1]; see also United States v. Morrow,
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2005 WL 3163803, at *2 (D.D.C. June 9, 2005). ^1 It appears that much of the information contained
in defendant's notes may meet these requirements.
As defendant acknowledges, in the case of notes that document "statements made by others"
in defendant's presence, a "multiple hearsay" issue arises. In such cases, the notes may be admitted
to prove that a certain statement was made by a certain person (see Schuster v. Symmetricon, 2000
WL 33115909, at *2 (N.D. Cal. Aug. 1, 2000) (handwritten minutes of conversations were hearsay
because offered to prove that speakers "actually made the statements contained therein")). However,
the notes may not be admitted to prove the truth of the statement itself in the absence of an
independent basis for admission. See Fed. R. Evid . 805 (hearsay within hearsay is admissible if it
meets an exception to the hearsay rule). Defendant asserts that he intends to offer his notes only as
proof that certain statements were made by certain people in his presence, but not for the truth of the
statements themselves. Def.'s Mem. at 5-6 ("statements of others reflected in Mr. Libby's notes will
not be offered for the truth of the matters asserted."). Based on this limitation, any "secondary"
hearsay problem is eliminated.
As defendant suggests, certain designated documents, including notes of the defendant, may
be admissible for their truth as past recollection recorded under Rule 803(5), which provides:
1
Present sense impressions are limited to factual description of what was observed through
the senses, and may not include subjective "interpretations and analyses of conversations." In re:
Cirrus Logic Securities Litigation, 946 F. Supp. at 1469; Schuster, 2000 WL 33115909, at *2; see
also Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004) (exception applies "only to reports of what the
declarant has actually observed through the senses, not to what the declarant merely conjectures" or
to "subject input" and interpretations); Schuster, 2000 WL 33115909, at *2 (exception does not
apply where notes reflect the declarant's reactions to the conversations). See also Weinstein's
Federal Evidence (2d ed. 2006) § 803.03[3] ("[A] statement evoked by an event that does not
describe or explain the event is not admissible as a present sense impression.")
6
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 7 of 12
A memorandum or record concerning a matter about which a witness once had knowledge
but now has insufficient recollection to enable the witness to testify fully and accurately,
shown to have been made or adopted by the witness when the matter was fresh in the
witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or
record may be read into evidence but may not itself be received as an exhibit unless offered
by an adverse party.
Fed. R. Evid. 803(5). Thus, if defendant establishes the proper foundation during his trial testimony,
he may be able to admit information contained in his notes for its truth. As discussed above, each
level of hearsay must qualify for a hearsay exception, so if the matter asserted (but now forgotten)
would itself be hearsay, defendant must establish an independent exception for that statement (for
example, the present sense impression exception defendant proposes for notes reporting what others
said). Additionally, Rule 803(5) authorizes the reading of the document, but not its admission as an
exhibit, unless offered by the government. Fed. R. Evid. 803(5) ("If admitted, the memorandum or
record may be read into evidence but may not itself be received as an exhibit unless offered by an
adverse party.").
Contrary to defendant's contention, defendant's notes do not qualify as business records
under Fed. R. Evid. 803(6). Even assuming that the notes are offered by defendant only as a
memorialization of what defendant said or did, or what he heard someone else say or do, and not for
the truth of the statements, defendant's notes do not qualify for a business records exception because
there is no reason to believe that defendant's notes or note-taking was the regular practice of the
Office of the Vice President. In United States v. Ferber, 966 F.2d 90, 98-99 (D. Mass. 1997), which
defendant cited in support of his present sense impression exception argument, the trial court refused
to admit an e-mail sent by a Merrill Lynch employee to his boss reporting statements made to the
employee by the defendant. Although the government showed that it was the regular practice of the
7
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 8 of 12
employee to send such e-mails, the court rejected the e-mail evidence because "there was no
sufficient evidence that Merrill Lynch required such records to be maintained. This was fatal to the
government's proffer on this ground because, in order for a document to be admitted a business
record, there must be some evidence of a business duty to make and regularly maintain records of
this type." Id. (emphasis added). The court went on to note that if the employee had such a practice
in his personal life, the outcome might be different, but, "Here, however, [employee] was under no
business duty to make and maintain the E-mail messages, and the evidence failed to show that
Merrill Lynch itself followed a such a routine." Id.
Similarly, in New York v. Microsoft, the district court excluded an e-mail which purported
to describe a conversation and was authored by an employee of a Microsoft competitor,
RealNetworks. The proponent of the evidence failed to establish that it was the "`regular practice'
of RealNetworks employees to write and maintain such emails." 2002 WL 649951, at *2. In the
instant case, the evidence will show, the government believes, that defendant took the notes for his
own work purposes and not because the OVP generally required note-taking or that the regular
practice of OVP employees was to take notes for the OVP to rely upon. Indeed, much of defendant's
notes are in a short-hand format that he alone used and that only those familiar with his particular
short-hand could decipher. Given that defendant's notes were created solely for his own use, they
do not carry the indicia of trustworthiness carried by records used by businesses as a whole. New
York v. Microsoft, 2002 WL 649951, at *2 (D.D.C. April 12, 2002)("The justification for this
exception is that business records have a high degree of accuracy because the nation's business
demands it, because the records are customarily checked for correctness, and because recordkeepers
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Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 9 of 12
are trained in habits of precision.")(quoting United States v. Baker, 693 F.2d 183, 188 (D.C. Cir.
1982)).
Defendant's notes also do not constitute a public record under Rule 803(8)(A). Defendant
does not offer facts that support a foundation that his personal notes constitute a record of "the
activities of the" OVP. He proffers no facts to establish that his personal notes taken on his own
initiative, at his own discretion, in his own hand, in his own style, and for his own use in planning
and executing his duties were records that set forth the activities of the OVP as an office or agency.
Defendant cites no case law that supports characterizing handwritten and personal notes of
an employee even a high ranking employee as a "public record" under Rule 803(8)(A). To the
contrary, courts have been reluctant to regard handwritten notes such as the ones authored by
defendant as public records. For example, in United States v. Patrick, 248 F.3d 11, 22 (1st Cir.
2001), the district court excluded from evidence certain handwritten notes found in police files that
recorded tips the police had received about who committed the charged murder. The defense theory
was that the police had not adequately investigated the murder, as evidenced by these notes, and that
the notes were not hearsay because they were not offered for their truth but rather for the inadequacy
of the police investigation of other possible suspects. The defense also argued that the police notes
were admissible as business records under 803(6) and 803(8). The court rejected these arguments,
noting first that where the notes contained information from informants who are not themselves part
of the business of police, such information is not admissible as an exception to the hearsay rule. Id.
As to the defendant's public records argument, the court ruled, "Nor do police notes contain findings
of a public agency charged with making those findings, which would render the notes admissible
under Fed.R.Evid. 803(8)." Id.; see also United States v. Bishop, 264 F.3d 535, 548 (5th Cir. 2001)
9
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(IRS agents' notes regarding meetings they had with the defendant were not public records:
"Personal notes made by an investigator such as an IRS agent are not ordinarily admissible because
they are hearsay. See Fed.R.Evid. 801©, 803(8)(B)."). Likewise, defendant's notes are not public
records that set forth the OVP's activities.
III. Admissibility of Wilson/Niger Case-Related Documents.
Lastly, defendant explains that, aside from documents pertaining solely to his memory or
preoccupation defense, there are two broad categories of documents that relate to the Wilsons and
the Niger controversy: (1) documents that defendant created or that defendant reviewed; and (2)
documents that were created or reviewed by other potential witnesses (but, presumably, not reviewed
by defendant). Def.'s Mem. at 7. Again, defendant states that he will generally not offer the
documents for the truth of the matters asserted therein. Def.'s Mem. at 7, 8. Of course, in those
instances, the documents are not hearsay and no hearsay exception is necessary, although the
government reserves its right to object to the documents (or portions thereof) on grounds other than
hearsay, for example, on the grounds that the matter is irrelevant, should be excluded under Rule
403, or implicates executive privilege. Furthermore, to the extent that defendant offers some of the
documents in an attempt to impeach other witnesses, see Def.'s Mem. at 8, the government may also
object on grounds that the documents are not a proper basis for impeachment (for example, if a
witness did not create, review, or adopt statements in a particular document), or are not admissible
as substantive evidence if used only for impeachment.
10
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 11 of 12
CONCLUSION
The government respectfully requests that this Court apply the foregoing legal principles to
the evidentiary proffer to be made by the defendant at the upcoming § 5 hearing.
Respectfully submitted,
/s/
PATRICK J. FITZGERALD
Special Counsel
Office of the United States Attorney
Northern District of Illinois
219 South Dearborn Street
Chicago, Illinois 60604
(312) 353-5300
Dated: September 25, 2006
11
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 12 of 12
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on this 25th day of September, 2006, I caused true and
correct copies of the foregoing to be served on the following parties by electronic mail:
William Jeffress, Esq.
Baker Botts
The Warner
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004-2400
Facsimile: 202-585-1087
Theodore V. Wells, Esq.
Paul Weiss
1285 Avenue of the Americas
New York, NY 10019-6064
Facsimile: 212-373-2217
Joseph A. Tate, Esq.
Dechert LLP
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Facsimile: 215-994-2222
John D. Cline, Esq.
Jones Day
555 California Street
San Francisco, CA 94104
Facsimile: 415-875-5700
Patrick J. Fitzgerald
Special Counsel
U.S. Department of Justice
1400 New York Ave., N.W.
Washington, D.C. 20530
202-514-1187
By: /s/
Debra Riggs Bonamici
Deputy Special Counsel
Friday, September 22, 2006
Interrogation, Geneva Convention, and the Negotiated Statute
Source =
http://natseclaw.typepad.com/natseclaw/files/Admin.SASC.Agreement.pdf
The September 21 negotiated Agreement betwen the White House and some Republican Senators. At a glance, the "bottom line" language is the White House's.
AGREEMENT UPON COMMON ARTICLE 3
SEC. 7. 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. 8. IMPLEMENTATION OF TREATY OBLIGATIONS.
(a)(1) IN GENERAL.--The acts enumerated in subsection 2441(d) of title 18,
United States Code, as amended by subsection (b) of this section, and in subsection (c) of
this section, constitute violations of Common Article 3 of the Geneva Conventions
prohibited by United States law.
(2) PROHIBITION ON GRAVE BREACHES.--The provisions in 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
sources 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 2441(d).
(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 such interpretations by Executive Order published in
the Federal Register, and such orders shall be authoritative (as to non-grave breach
provisions) as a matter of United States law, in the same manner as other administrative
regulations.
(C) Nothing in this section shall affect the constitutional functions and
responsibilities of Congress and the judicial branch of the United States.
(b) REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE.--(1)
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";
(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 does 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
section, 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 section, 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' means bodily
injury that involves--
(1) a substantial risk of death;
(2) extreme physical pain;
(3) a burn or physical disfigurement of a serious nature, not
to include cuts, abrasions, or bruises; or
(4) significant loss or impairment of the function of a
bodily member, organ, or mental faculty.
"(E) the term `serious mental pain or suffering' shall have the
same meaning as `severe mental pain or suffering' as such term is defined
in 18 U.S.C. § 2340(2), except that the term `serious' shall replace the
term `severe' where it appears in such definition, and except that, as to
conduct occurring following the date of 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' in such definition."
"(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 section, except
as specified in paragraph 2441(d)(2)(E) of title 10, 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 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.--
The term `cruel, inhuman, or degrading treatment or punishment' in this subsection shall
mean the 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) The President shall take action to ensure compliance with this subsection,
including through the establishment of administrative rules and procedures.
Thursday, September 21, 2006
Court Pre-hearing Opinion re: CIPA 6(a) [Doc 145]
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 1 of 14
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________
)
UNITED STATES OF AMERICA, )
)
)
v. ) Criminal No. 05-394 (RBW)
)
)
I. LEWIS LIBBY, )
)
Defendant. )
_____________________________________)
MEMORANDUM OPINION AND ORDER
On September 27, 2006, this Court will commence hearings pursuant to Section 6(a) of
the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. III, § 6(a) (2000), to
address the "use, relevance, and admissibility" at trial of certain classified documents,
information, and testimony. ^1 After reviewing the papers submitted by the parties, it is apparent
that they not only disagree on the evidentiary value of the information at issue, but also have
divergent views on the standard the Court should employ in determining whether use of the
information should be precluded during the trial. ^2 Thus, before these hearings commence, the
Court must address the standard it will employ during those hearings in addressing the
1
In connection with these hearings, the following papers have been submitted to the Court:
(1) the Defendant's Consolidated CIPA § 5 Notice ("Def.'s Notice") [Doc 127 (classified)]; (2)
the defendant's Memorandum Concerning Use, Relevance, and Admissibility of Classified Documents
and Information Listed in Defendant's Consolidated CIPA § 5 Notice ("Def.'s Mem.") [Doc 128 (classified)];
(3) the Government's CIPA § 6(b) Notice ("Gov't's Notice") [Doc 133 (sealed)]; (4) the Government's
Memorandum in Opposition to Defendant's Arguments Regarding the Use, Relevance, and Admissibility of
Classified Documents ("Gov't's Opp'n") [Doc 141 (sealed)]; and (5) the defendant's Reply Memorandum
Concerning Use, Relevance, and Admissibility of Classified Documents and Information Listed in Defendant's
Consolidated CIPA § 5 Notice ("Def.'s Reply") [Doc 143 (classified)].
2
The Court uses the term "information" throughout this opinion to encompass all categories
of classified evidence, including documents and testimony, that the defendant seeks to introduce as
evidence during the trial and which is identified in his Section 5 notice.
1
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 2 of 14
admissibility question. As discussed in greater detail below, it is the Court's conclusion that the
Federal Rules of Evidence and the restrictions they impose control whether information subject
to CIPA proceedings is admissible during a trial.
I. The CIPA
The CIPA establishes the procedures for pretrial determinations of the disclosure and the
admissibility at trial of classified information in federal criminal proceedings. ^3 See United States
v. Fernandez, 913 F.2d 148, 151 (4th Cir. 1999). The statute was designed to reconcile, on the
one hand, a criminal defendant's right to obtain prior to trial classified information and introduce
such material at trial, with, on the other hand, the government's duty to protect from disclosure
sensitive information that could compromise national security. United States v. Rezaq, 134 F.3d
1121, 1142 (D.C. Cir. 1998). As such, the CIPA creates pretrial, trial, and appellate procedures
for federal criminal cases where there is a possibility that classified information will be disclosed
through a defendant's defense. These pretrial procedures cover the manner in which pretrial
conferences are to be conducted, the issuance of protective orders, and the regulation of the
discovery of classified information sought by criminal defendants. 18 U.S.C. App. III, §§ 2-4. In
addition, the CIPA sets forth a structure for determining the admissibility of classified
information at trial, which involves a four step process. 18 U.S.C App. III, §§ 5-6.
First, Section 5(a) of the CIPA requires a defendant to file a notice describing the
classified information he "reasonably expects to disclose or cause the disclosures of" at trial. 18
U.S.C. App. III, § 5(a) ("Section 5 notice"). If the defendant fails to comply with this
3
It is clear to the Court, and the defendant does not contend otherwise, that the government's
assertion that the documents identified in the defendant's Section 5 notice are classified is justified.
Accordingly, it is proper to employ the CIPA procedures.
2
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 3 of 14
requirement, the Court, in its discretion, may preclude the use of any classified information not
part of the defendant's Section 5 notice. Id. at § 5(b). Second, at the government's request, the
Court must hold a pretrial hearing to address the "use, relevance, or admissibility" of the
classified information identified in the defendant's Section 5 notice. Id. at § 6(a). ^4 Following
this hearing, the Court is required to "set forth in writing the basis for its determination" as to
each piece of classified information that was at issue during the hearing. Id. Third, if the Court
determines that certain classified information can be used during trial, the government may move
(1) to replace the classified portions of the information at issue with a statement admitting the
relevant facts that the information would tend to prove, or (2) to substitute a summary of the
information. Id. at § 6(c)(1)(A) - (B). "The court shall grant such a motion . . . if it finds that the
statement or summary will provide the defendant with substantially the same ability to make his
defense as would disclosure of the specific classified information." Id. at § 6(c)(1). And finally,
if the Court denies the government's proposed admission or substitution, the government has two
options. The government can file an "affidavit of the Attorney General objecting to [the]
disclosure of the classified information at issue," which will then require the dismissal of the
indictment except in cases where "the [C]ourt determines that the interests of justice would not
be served by dismissal of the indictment." Id. at § 6(e). Alternatively, the government can file
an immediate interlocutory appeal. Id. at § 7.
Here, the defendant has filed his final Section 5 notice. In response, the government has
moved for a hearing pursuant to Section 6(a) and it has filed its Section 6(b) notice identifying
4
This hearing is preceded by the government's notice to both the Court and the defense of
which documents in the defendant's Section 5 notice are classified and at issue. 18 U.S.C. App. III,
§ 6(b) ("Section 6(b) notice").
3
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 4 of 14
those items of classified information that are at issue. Accordingly, the Court, in the upcoming
hearings, must now make pretrial "determinations concerning the use, relevance, or admissibility
of [the] classified information" identified by the government. 18 U.S.C. App. III, § 6(a). Only
after these determinations are made does the Court need to address the question of redactions and
substitutions.
II. Section 6(a) of the CIPA
As noted above, the parties disagree sharply on the standard the Court should employ in
the Section 6(a) proceeding. The defendant argues that the Court must simply apply the Federal
Rules of Evidence, Def.'s Mem. at 5-6, while the government contends that the Court should
engage in a three-step inquiry, Gov't's Opp'n at 5-15. Specifically, the government opines that
when it asserts a classified information privilege, ^5 a classified document (or testimony based on a
classified document) should be precluded from use at trial unless the Court determines (1) that
the document is relevant; (2) that the document is "helpful to the defense," and (3) that the
defendant's interest in disclosure of the document outweighs the government's need to protect
the classified information. Id. The Court cannot accept the government's position for the
following reasons.
"The CIPA's fundamental purpose is to protect and restrict the discovery of classified
information in a way that does not impair the defendant's right to a fair trial. It is essentially a
procedural tool that requires a court to rule on the relevance of classified information before it
may be introduced." United States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005) (emphasis
5
The papers submitted by government refer to this privilege as both the classified information
privilege and the national security privilege. See, e.g., Gov't's Opp'n at 12-14.
4
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 5 of 14
added) (internal quotation marks, brackets, and citations omitted); see also Fernandez, 913 F.2d
at 154; United States v. Smith, 780 F.2d 1102, 1106 (4th Cir. 1985) (en banc). When the CIPA
was enacted, Congress made clear that the statute did not alter the rules governing the
admissibility of evidence during a trial. Senate Rep. No. 96-823, 96th Cong., 2d Sess. (1980), p.
8; House Conf. R. No. 96-1436, 96th Cong. 2d. Sess., (1980), p. 12 ("As noted in the reports to
accompany[,] . . . [n]othing in the conference substitute is intended to change the existing
standards for determining relevance and admissibility."); see Smith, 780 F.2d at 1106; United
States v. Johnson, 139 F.3d 1359, 1365 (11th Cir. 1998) ("CIPA has no substantive impact on the
admissibility or relevance of probative evidence."); United States v. Wilson, 732 F.2d 404, 412
(5th Cir. 1984) ("CIPA does not undertake to create new law governing admissibility.") (internal
quotation marks and citation omitted). However, "[w]hile [the] CIPA creates no new rule of
evidence regarding admissibility, the procedures it mandates protect a government privilege in
classified information." Yunis v. United States, 867 F.2d 617, 623 (D.C. Cir. 1989).
Under Section 6(a), the Court is charged with making a pretrial "determination
concerning the use, relevance, or admissibility" of the classified information identified in the
defendant's Section 5 notice. 18 U.S.C. App. III, § 6(a). It is an unremarkable proposition of
statutory interpretation that it is a court's "duty to give effect, if possible, to every clause and
word of a statute." Duncan v. Walker, 533 U.S. 167, 174 (2001) (internal quotation marks and
citation omitted). Thus, during a Section 6(a) proceeding, the Court must make determinations
not only as to the relevance of classified information, but also as to its use and admissibility at
trial. 18 U.S.C. App. III, § 6(a). The fact that these are separate inquiries cannot be surprising
since, for example, it is well settled that not all relevant evidence is admissible during a trial. See
5
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 6 of 14
Fed. R. Evid. 403 ("[A]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice."); Fed. R. Evid. 802 ("Hearsay is not
admissible except as provided by these rules or by other rules prescribed by the Supreme
Court.").
Applying the framework enunciated in Section 6(a), the Court must first determine
whether the information identified by the defendant is relevant. Specifically, the Court must
assess whether the information "[has] any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence." Fed. R. Evid. 401 (defining "relevant evidence"). Following the
relevance determination, the Court must then examine whether the information is admissible at
trial, and if so, whether its use should be limited. ^6 This inquiry is also governed by the Federal
Rules of Evidence, which imposes restrictions on the use of relevant evidence. See, e.g., Fed. R.
Evid. 403, 404(b), 501.
Here, the government not only challenges the relevance of the information proffered by
the defendant, but also asserts that its introduction should be excluded at trial because the
government has a classified information privilege. Gov't's Opp'n at 7. The government
contends that when such a privilege is raised, the Court's inquiry must go beyond examining the
relevance of the information. Specifically, the government argues that after a national security
privilege has been invoked, the Court must look further than relevance and determine whether
introduction of the information would be at least "helpful to the defense." Id. at 8 (citing Yunis,
6
For example, courts often admit evidence of other crimes, but limit their use to show,
inter alia, motive, identity, or a common scheme or plan. See, e.g., Fed. R. Evid. 404(b); Instructions
2.51(A), 2.51(B), Criminal Jury Instructions, Young Lawyers Section, The Bar Association of the District
of Columbia (2005).
6
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 7 of 14
867 F.2d at 622). If this hurdle is satisfied, the government posits that the Court must then
balance the need to protect the government's information against the defendant's interests in
disclosure. Id. (citing Smith, 780 F.2d at 1110). According to the government, this further
inquiry is used to determine the "use" and "admissibility" at trial of the information in question.
Id. at 14. While recognizing that the District of Columbia Circuit has not mandated such a
balancing test, the government notes that other courts have. Id. at 9 n. 5.
Before addressing the legal arguments raised by the government in support of its three-
step inquiry, which in practice sets a standard higher than mere relevance and admissibility
assessments, it is important to discuss briefly the history of the CIPA. During the congressional
hearings which preceded the enactment of the CIPA, the Department of Justice ("DOJ")
requested that the CIPA include a heightened standard for the admissibility of classified
information. Specifically, the DOJ sought language that would make evidence admissible only if
it was "relevant and material." Graymail S. 182, Hearing Before Subcommittee on Criminal
Justice of Senate Judiciary Committee, 96th Cong., 2d Sess. (1980), pp. 3, 18. Under this
standard, the Court would be required to balance the probative worth of the evidence against the
potential harms to national security. Id. at pp. 9, 22. This standard was rejected by Congress,
which stated unambiguously that "nothing in the [CIPA] is intended to change the existing
standards for determining relevance and admissibility." Smith, 780 F.2d at 1106 (citing House
Conference Report No. 96-1436, 96th Cong., (1980), p. 12.).
Here, the government is advocating a standard similar to the one rejected by Congress.
Not only does the government's argument lack support in the legislative history, but with one
exception, see Smith, 780 F.2d at1106-1110, its position is not supported by the existing case
7
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 8 of 14
law. While there can be no question that the government has a legitimate privilege in protecting
documents and information concerning national security, see, e.g., C. & S. Air Lines v.
Waterman S.S. Corp., 333 U.S. 103, 111 (1948); Totten v. United States, 92 U.S. 105, 106-07
(1875), the extent of that protection in the context of a criminal prosecution is embodied in the
procedures set forth in the CIPA, Yunis, 867 F.2d at 623 ("the procedures [the CIPA] mandates
protect [the] government['s] privilege in classified information."); see United States v. Mejia,
448 F.3d 436, 455 (D.C. Cir. 2006) (quoting Yunis, 867 F.2d at 623). And the cases in this
Circuit that have applied the CIPA have recognized only that it allows for the Court to balance
the assertion of a classified information privilege against a criminal defendant's interests during
the discovery process. See Mejia, 448 F.3d at 455; Yunis, 867 F.2d at 623.
In Yunis, and later in Mejia which reaffirmed Yunis, the District of Columbia Circuit
addressed the question of what standard to employ in a CIPA proceeding when the Court is asked
to determine whether classified information should be produced in discovery. Recognizing that
the government has a substantial interest in protecting classified information, the Yunis Court
reasoned that something more than simple "materiality" must be shown. Yunis, 867 F.2d at 622.
Thus, the Court required a further inquiry, one consistent with what the Supreme Court found
necessary in Roviario v. United States, 353 U.S. 53 (1957). Id. In Rovario, the Supreme Court
was presented with the question of whether an informant's identity had to be disclosed during
discovery. Roviaro, 353 U.S. at 59. The Supreme Court held that while a common law
"informant's privilege" exists, the privilege must give way when disclosure of the information
"is relevant and helpful to the defense of an accused." Yunis, 867 F.2d at 622 (citing Roviaro,
353 U.S. at 60-61) (internal quotation marks omitted). Finding the disclosure of classified
8
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 9 of 14
information analogous to the disclosure of an informant's identity, the Circuit Court in Yunis
required an identical inquiry for determining whether classified information should be produced
during discovery. Id. at 622-23. Thus, the Circuit Court concluded that something more than "a
mere showing of theoretical relevance" was required for the Court to order the production of
classified documents. Id. at 623; Mejia, 448 F.3d at 455. And this Court employed this test
when presented with motions to compel the production of classified documents at an earlier stage
of this litigation. See United States v. Libby, 429 F. Supp. 2d 1, 7 (D.D.C. 2006); see
also United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988) (applying a balancing test to a
CIPA § 4 proceeding); United States v. Pringle, 751 F.2d 419, 427 (1st Cir. 1984) (same).
The government now asks this Court to import this test, used at the discovery stage, into
the CIPA "use, relevance, and admissibility" decision. Gov't's Opp'n at 5-15. As support for
this applicability leap, the government relies on cases from the Fourth Circuit, including one
from a splintered en banc court. Id. (citing Smith, 780 F.2d at 1107-11). These cases, however,
ignore the clear language of the statute and the unambiguous mandate from Congress that the
standard evidentiary rules applicable in federal courts apply with equal force in Section 6(a)
hearings.
In Smith, the Fourth Circuit, sitting en banc, recognized that "the legislative history is
clear that Congress did not intend to alter the existing law governing the admissibility of
evidence" in Section 6 proceedings. Smith, 780 F.2d at 1106 (noting further that "[t]he circuits
that have considered the matter agree with the legislative history cited that ordinary rules of
evidence determine the admissibility under [the] CIPA"). Despite acknowledging this clear
mandate from Congress, a seven to five majority of the Fourth Circuit concluded that there
9
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 10 of 14
existed, under Federal Rule of Evidence 501, a common law privilege for classified information,
and that a court must "balance the public interest in nondisclosure against the defendant's right to
prepare a defense" before the evidence may be admitted at trial. Id. at 1107. The Fourth
Circuit's reasoning was based entirely on the Supreme Court's decision in Roviaro and its
progeny. Id. (citations omitted). While noting that "[t]he privilege must give way to the
`fundamental requirements of fairness,'" the Fourth Circuit reasoned that "[t]he defendant must
come forward with something more than speculation as to the usefulness of such disclosures."
Id. at 1107-08 (citations omitted). Thus, the Fourth Circuit held that "[a] district court may order
disclosure only when the information is at least essential to [the] defense, necessary to the
defense, and neither merely cumulative nor corroborative," and the defendant's interest in
disclosure outweighs the government's classified information privilege. Id. at 1109-10 (internal
citations and quotation marks omitted); see also United States v. Zettl, 835 F.2d 1059 (4th Cir.
1987) (applying Smith). It is Smith's balancing mandate which this Court cannot accept.
As recognized by the dissenting judges in Smith, the majority adopted an admissibility
standard that was explicitly rejected by Congress when considering the enactment of the CIPA.
Smith, 780 F.2d at 1111 (Butzner, J. dissenting) (noting that Congress explicitly refused to
incorporate language into the CIPA adopting the Roviaro balancing test for the admissibility of
classified information). Moreover, the majority's reliance on Roviaro and its progeny was
misplaced, as those cases stand solely for the proposition that a balancing must be employed
before the discovery of classified information may be required. Id. at 1112. In addition, Roviaro,
was not intended to "exclude the introduction of relevant evidence known to the defendant." Id.
(citing Rovario, 353 U.S. at 60 n.8; United States v. Godkins, 527 F.2d 1321, 1325-27 (5th Cir.
10
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 11 of 14
1976)). Thus, by employing "Roviaro to exclude relevant evidence known to the defendant,
instead of confining its principles to discovery requests, [the Fourth Circuit] significantly
alter[ed] the existing standard for determining the admissibility of evidence in contravention of
express congressional intent." Id. Similarly, the reasoning of the Smith majority is flawed
because it fails to recognize that there is an important difference between the discovery of
information and its ultimate use during trial. While,"[t]here is no general constitutional right to
discovery in a criminal case," Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (citation
omitted), the Constitution mandates that a defendant be accorded the opportunity to present a
defense, see, e.g., Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("[f]ew rights are more
fundamental than that of an accused to present witnesses in his own defense." ). Indeed, the
Fourth Circuit failed to recognize that the CIPA itself has separate provisions that govern
discovery and admissibility. Compare 18 U.S.C. App. III, §§ 3, 4, with id. at § 6. ^7
Based on the foregoing, there is simply no basis for importing the Roviaro standard into
the CIPA's use, relevance and admissibility determination, especially against the backdrop of
Congress' clear declaration that the standard rules of evidence should apply. In fact, the Fourth
Circuit appears to be moving away from the en banc court's ruling in Smith. Most recently, the
Fourth Circuit in United States v. Moussaoui, observed, albeit in the discovery context, that even
7
W hile this Court's opinion appears to be the first published opinion that takes exception
with the Fourth Circuit's admissibility standard adopted in Smith, commentators have suggested that the
Fourth Circuit's opinion is contrary to the Congress' intent and the applicable evidentiary standards.
See Richard Salgado, Comment, Government Secrets, Fair Trials, and the Classified Information Procedures
Act, 98 YALE L.J. 427 (1988) ("[a]ssuming Congress understood the current state of evidence law, the
Smith and Zettl court probably violated the intent of Congress when they allowed trial courts to balance
the defendant's need for disclosure against the interests of national security in section 6(a) relevancy
hearings"); see also Charles W right & Kenneth Graham, Federal Practice and Procedure § 5672 (3d ed. 1998)
(observing that the Fourth Circuit in Smith adopted "a more strict rule of admissibility" for Section 6(a)
proceedings, despite Congress' rejection of such a standard).
11
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 12 of 14
when the balancing test is applied to assess whether documents should be produced to the
defendant, "the `balancing' [it] must conduct is primarily, if not solely, an examination of
whether the district court correctly determined that the information the Government seeks to
withhold is material to the defense." Moussaoui, 382 F.3d 453, 476 (4th Cir. 2004) (discussing
the required balancing at the discovery phase). Thus, while the Fourth Circuit in Moussaoui was
presented with a discovery dispute as opposed to a question of admissibility under the CIPA,
since the Fourth Circuit in Smith required courts in that Circuit to conduct the identical balancing
test when determining whether classified information would be admissible under the CIPA, the
Fourth Circuit's apparent minimization of that test in the discovery context likely applies with
equal force to admissibility determinations.
And just as this Court believes it was improper for the Fourth Circuit to employ the
Roviaro standard at the admissibility phase, it would be improper for this Court to employ the
District of Columbia Circuit's discovery stage pronouncements from Yunis and Mejia during the
Section 6(a) proceedings the Court will conduct. While there is no doubt a governmental interest
in protecting national security and classified information under the CIPA, the Court's balancing
of the government's interests against the defendant's interest was properly employed during the
discovery process, not now, when examining whether the disclosed information must be
excluded at trial. This is not to say, however, that the government's interests in protecting
classified information are diminished at the admissibility stage. Indeed, the CIPA continues to
provide the government substantial safeguards to protect classified information at this stage in
the proceeding. Thus, if this Court concludes that identified documents are relevant and
otherwise admissible at trial, the government can seek to substitute or redact those documents to
12
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 13 of 14
protect the classified information from disclosure. 18 U.S.C. App. § 6(c). If the government is
still not satisfied that the classified information is adequately protected at the conclusion of these
hearings, the government has the power to preclude entirely the introduction at trial of the
classified information. 18 U.S.C. App., § 6(c)(2). While invocation of this option may require
dismissal of this case, now, just as during the discovery process, "[t]he burden is the
Government's, not to be shifted to the trial judge, to decide whether the public prejudice of
allowing the crime to go unpublished is greater than that attendant upon the possible disclosure
of state secrets and other confidential information in the Government's possession." Moussaoui,
382 F.3d at 475 (quoting Jencks v. United States, 353 U.S. 657, 672 (1957)) (internal quotation
marks and emphasis omitted). Thus, the government is not without recourse to protect national
security interests if the Court concludes that the defendant must be permitted to reveal classified
information as part of his defense.
It is the hallmark of the criminal justice system in this country that every defendant has "a
right to his day in court," to "examine the witnesses against him, to offer testimony [and other
admissible evidence], and to be represented by counsel." In re Oliver, 333 U.S. 257, 273 (1948)
(footnote omitted). In fact, the Supreme Court has observed that "[f]ew rights are more
fundamental than that of an accused to present . . . [a] defense." Chambers, 410 U.S. at 302.
And it is the duty of this Court to ensure that the defendant receives his constitutionally protected
right to a fair trial. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 362 (1966) (noting that a
district court has a duty to ensure that a criminal defendant has a fair trial). Adopting the
balancing test advanced by the government is not only contrary to Congress' clear mandate and
the proper application of the relevant case law in this Circuit, but could infringe on the
13
Case 1:05-cr-00394-RBW Document 145 Filed 09/21/2006 Page 14 of 14
defendant's constitutional right to put on a defense by preventing him from introducing relevant
and otherwise admissible evidence at his trial because the government's interest in non-
disclosure was considered of greater significance. This is a balance that is simply not appropriate
under either the CIPA or the Constitution. As the Supreme Court recognized almost fifty years
ago,
the Government can invoke its evidentiary privileges only at the price of letting the
defendant go free . . . .[S]ince the Government which prosecutes an accused also has the
duty to see that justice is done, it is unconscionable to allow it to undertake prosecution
and then invoke its governmental privileges to deprive the accused of anything which
might be material to his defense.
Jencks, 353 U.S. at 670-71 (internal quotation marks and citation omitted). Accordingly, this
Court is compelled to employ the standard rules of evidence in assessing admissibility of the
classified information throughout the Section 6(a) proceedings it will conduct. To conclude
otherwise would be contrary to Congress' clear mandate and potentially compromise the
defendant's right to a fair trial. ^8
SO ORDERED this 21st day of September, 2006.
_____________________________
REGGIE B. WALTON
United States District Judge
8
It is also important to briefly discuss Federal Rule of Evidence 403, as the parties have
diverging views on its application. There is no question that Rule 403, as a standard rule of evidence,
impacts the admissibility of the classified information referenced in the defendant's CIPA § 5 notice.
Rule 403 provides that relevant evidence can be excluded at trial "if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R.
Evid. 403. According to the notes accompanying Rule 403, "`[u]nfair prejudice' within its context means an
undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one."
Id., notes. Thus, the import of Rule 403 is that evidence will be excluded if its viewing by the fact finder
will improperly impact its decision. Accordingly, the fact that evidence may be classified and thus impact
important national security interests is not, by itself, sufficient to exclude the evidence. Rather, there
must be some indication that the evidence will improperly impact the jury's decision making process. Thus,
for example, if the evidence is of a nature as to divert the jury's attention to unimportant peripheral
issues, it might be proper to exclude it. United States v. Miller, 874 F.2d 1255, 1277 (9th Cir. 1989). And
this may not necessarily be the case merely because the evidence is classified.
14
Saturday, September 16, 2006
S.3901 : Military Tribunals [Warner]
II
Calendar No. 611
109TH CONGRESS
S. 3901
2D SESSION
To authorize trial by military commission for violations of the law of war,
and for other purposes.
IN THE SENATE OF THE UNITED STATES
SEPTEMBER 14, 2006
Mr. WARNER, from the Committee on Armed Services, reported the following
original bill; which was read twice and placed on the calendar
A BILL
To authorize trial by military commission for violations of
the law of war, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the ``Military Commissions
5 Act of 2006''.
6 SEC. 2. FINDINGS.
7 Congress makes the following findings:
8 (1) The Constitution of the United States
9 grants to Congress the power ``To define and punish
2
1 . . . Offenses against the Law of Nations'', as well
2 as the power ``To declare War . . . To raise and sup-
3 port Armies . . . [and] To provide and maintain a
4 Navy''.
5 (2) The military commission is the traditional
6 tribunal for the trial of persons engaged in hostilities
7 for violations of the law of war.
8 (3) Congress has, in the past, both authorized
9 the use of military commission by statute and recog-
10 nized the existence and authority of military com-
11 missions.
12 (4) Military commissions have been convened
13 both by the President and by military commanders
14 in the field to try offenses against the law of war.
15 (5) It is in the national interest for Congress to
16 exercise its authority under the Constitution to enact
17 legislation authorizing and regulating the use of
18 military commissions to try and punish violations of
19 the law of war.
20 (6) Military commissions established and oper-
21 ating under chapter 47A of title 10, United States
22 Code (as enacted by this Act), are regularly con-
23 stituted courts affording, in the words of Common
24 Article 3 of the Geneva Conventions, ``all the judicial
3
1 guarantees which are recognized as indispensable by
2 civilized peoples''.
3 SEC. 3. AUTHORIZATION FOR MILITARY COMMISSIONS.
4 (a) IN GENERAL.--The President is authorized to es-
5 tablish military commissions for the trial of alien unlawful
6 enemy combatants engaged in hostilities against the
7 United States for violations of the law of war and other
8 offenses specifically made triable by military commission
9 as provided in chapter 47 of title 10, United States Code,
10 and chapter 47A of title 10, United States Code (as en-
11 acted by this Act).
12 (b) CONSTRUCTION.--The authority in subsection (a)
13 may not be construed to alter or limit the authority of
14 the President under the Constitution and laws of the
15 United States to establish military commissions for areas
16 declared to be under martial law or in occupied territories
17 should circumstances so require.
18 (c) SCOPE OF PUNISHMENT AUTHORITY.--A military
19 commission established pursuant to subsection (a) shall
20 have authority to impose upon any person found guilty
21 under a proceeding under chapter 47A of title 10, United
22 States Code (as so enacted), a sentence that is appropriate
23 for the offense or offenses for which there is a finding
24 of guilt, including a sentence of death if authorized under
25 such chapter, imprisonment for life or a term of years,
4
1 payment of a fine or restitution, or such other lawful pun-
2 ishment or condition of punishment as the military com-
3 mission shall direct.
4 (d) EXECUTION OF PUNISHMENT.--The Secretary of
5 Defense is authorized to carry out a sentence of punish-
6 ment imposed by a military commission established pursu-
7 ant to subsection (a) in accordance with such procedures
8 as the Secretary may prescribe.
9 (e) ANNUAL REPORT ON TRIALS BY MILITARY COM-
10 MISSIONS.--
11 (1) ANNUAL REPORT REQUIRED.--Not later
12 than December 31 each year, the Secretary of De-
13 fense shall submit to the Committees on Armed
14 Services of the Senate and the House of Representa-
15 tives a report on any trials conducted by military
16 commissions established pursuant to subsection (a)
17 during such year.
18 (2) FORM.--Each report under this subsection
19 shall be submitted in unclassified form, but may in-
20 clude a classified annex.
21 SEC. 4. MILITARY COMMISSIONS.
22 (a) MILITARY COMMISSIONS.--
23 (1) IN GENERAL.--Subtitle A of title 10,
24 United States Code, is amended by inserting after
25 chapter 47 the following new chapter:
5
``CHAPTER 47A--MILITARY COMMISSIONS
1
``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.
2 ``SUBCHAPTER I--GENERAL PROVISIONS
``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
3 ``§ 948a. Definitions
4 ``In this chapter:
5 ``(1) ALIEN.--The term `alien' means an indi-
6 vidual who is not a citizen of the United States.
7 ``(2) CLASSIFIED INFORMATION.--The term
8 `classified information' means the following:
9 ``(A) Any information or material that has
10 been determined by the United States Govern-
11 ment pursuant to statute, Executive order, or
12 regulation to require protection against unau-
13 thorized disclosure for reasons of national secu-
14 rity.
15 ``(B) Any restricted data, as that term is
16 defined in section 11 y. of the Atomic Energy
17 Act of 1954 (42 U.S.C. 2014(y)).
6
1 ``(3) LAWFUL ENEMY COMBATANT.--The term
2 `lawful enemy combatant' means an individual who
3 is--
4 ``(A) a member of the regular forces of a
5 State party engaged in hostilities against the
6 United States;
7 ``(B) a member of a militia, volunteer
8 corps, or organized resistance movement belong-
9 ing to a State party engaged in such hostilities,
10 which are under responsible command, wear a
11 fixed distinctive sign recognizable at a distance,
12 carry their arms openly, and abide by the law
13 of war; or
14 ``(C) a member of a regular armed force
15 who professes allegiance to a government en-
16 gaged in such hostilities, but not recognized by
17 the United States.
18 ``(4) UNLAWFUL ENEMY COMBATANT.--The
19 term `unlawful enemy combatant' means an indi-
20 vidual engaged in hostilities against the United
21 States who is not a lawful enemy combatant.
22 ``§ 948b. Military commissions generally
23 ``(a) PURPOSE.--This chapter establishes procedures
24 governing the use of military commissions to try alien un-
25 lawful enemy combatants engaged in hostilities against the
7
1 United States for violations of the law of war and other
2 offenses triable by military commission.
3 ``(b) CONSTRUCTION OF PROVISIONS.--The proce-
4 dures for military commissions set forth in this chapter
5 are based upon the procedures for trial by general courts-
6 martial under chapter 47 of this title (the Uniform Code
7 of Military Justice). Chapter 47 of this title does not, by
8 its terms, apply to trial by military commission except as
9 specifically provided therein or in this chapter, and many
10 of the provisions of chapter 47 of this title are by their
11 terms inapplicable to military commissions. The judicial
12 construction and application of chapter 47 of this title,
13 while instructive, is therefore not of its own force binding
14 on military commissions established under this chapter.
15 ``(c) INAPPLICABILITY OF CERTAIN PROVISIONS.--
16 (1) The following provisions of this title shall not apply
17 to trial by military commission under this chapter:
18 ``(A) Section 810 (article 10 of the Uniform
19 Code of Military Justice), relating to speedy trial,
20 including any rule of courts-martial relating to
21 speedy trial.
22 ``(B) Sections 831(a), (b), and (d) (articles
23 31(a), (b), and (d) of the Uniform Code of Military
24 Justice), relating to compulsory self-incrimination.
8
1 ``(C) Section 832 (article 32 of the Uniform
2 Code of Military Justice), relating to pretrial inves-
3 tigation.
4 ``(2) Other provisions of chapter 47 of this title shall
5 apply to trial by military commission under this chapter
6 only to the extent provided by the terms of such provisions
7 or by this chapter.
8 ``(d) TREATMENT OF RULINGS AND PRECEDENTS.--
9 The findings, holdings, interpretations, and other prece-
10 dents of military commissions under this chapter may not
11 be introduced or considered in any hearing, trial, or other
12 proceeding of a court-martial convened under chapter 47
13 of this title. The findings, holdings, interpretations, and
14 other precedents of military commissions under this chap-
15 ter may not form the basis of any holding, decision, or
16 other determination of a court-martial convened under
17 that chapter.
18 ``§ 948c. Persons subject to military commissions
19 ``Any alien unlawful enemy combatant engaged in
20 hostilities or having supported hostilities against the
21 United States is subject to trial by military commission
22 as set forth in this chapter.
23 ``§ 948d. Jurisdiction of military commissions
24 ``A military commission under this chapter shall have
25 jurisdiction to try persons subject to this chapter for any
9
1 offense made punishable by this chapter, sections 904 and
2 906 of this title (articles 104 and 106 of the Uniform Code
3 of Military Justice), or the law of war, and may, under
4 such limitations as the President may prescribe, adjudge
5 any punishment not forbidden by this chapter, including
6 the penalty of death when authorized under this chapter,
7 chapter 47 of this title, or the law of war.
8 ``SUBCHAPTER II--COMPOSITION OF MILITARY
9 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 mem-
bers.
10 ``§ 948h. Who may convene military commissions
11 ``Military commissions under this chapter may be
12 convened by the Secretary of Defense or by any officer
13 or official of the United States designated by the Secretary
14 for that purpose.
15 ``§ 948i. Who may serve on military commissions
16 ``(a) IN GENERAL.--Any commissioned officer of the
17 armed forces on active duty is eligible to serve on a mili-
18 tary commission under this chapter, including commis-
19 sioned officers of the reserve components of the armed
20 forces on active duty, commissioned officers of the Na-
10
1 tional Guard on active duty in Federal service, or retired
2 commissioned officers recalled to active duty.
3 ``(b) DETAIL OF MEMBERS.--When convening a mili-
4 tary commission under this chapter, the convening author-
5 ity shall detail as members thereof such members of the
6 armed forces eligible under subsection (a) who, as in the
7 opinion of the convening authority, are best qualified for
8 the duty by reason of age, education, training, experience,
9 length of service, and judicial temperament. No member
10 of an armed force is eligible to serve as a member of a
11 military commission when such member is the accuser or
12 a witness for the prosecution or has acted as an investi-
13 gator or counsel in the same case.
14 ``(c) EXCUSE OF MEMBERS.--Before a military com-
15 mission under this chapter is assembled for the trial of
16 a case, the convening authority may excuse a member
17 from participating in the case.
18 ``§ 948j. Military judge of a military commission
19 ``(a) DETAIL OF MILITARY JUDGE.--A military judge
20 shall be detailed to each military commission under this
21 chapter. The Secretary of Defense shall prescribe regula-
22 tions providing for the manner in which military judges
23 are so detailed to military commissions. The military judge
24 shall preside over each military commission to which he
25 has been detailed.
11
1 ``(b) ELIGIBILITY.--A military judge shall be a com-
2 missioned officer of the armed forces who is a member
3 of the bar of a Federal court, or a member of the bar
4 of the highest court of a State, and who is certified to
5 be qualified for duty under section 826 of this title (article
6 26 of the Uniform Code of Military Justice) as a military
7 judge in general courts-martial by the Judge Advocate
8 General of the armed force of which such military judge
9 is a member.
10 ``(c) INELIGIBILITY OF CERTAIN INDIVIDUALS.--No
11 person is eligible to act as military judge in a case of a
12 military commission under this chapter if he is the accuser
13 or a witness or has acted as investigator or a counsel in
14 the same case.
15 ``(d) CONSULTATION WITH MEMBERS; INELIGI-
16 BILITY TO VOTE.--A military judge detailed to a military
17 commission under this chapter may not consult with the
18 members except in the presence of the accused (except as
19 otherwise provided in section 949d of this title), trial coun-
20 sel, and defense counsel, nor may he vote with the mem-
21 bers.
22 ``(e) OTHER DUTIES.--A commissioned officer who
23 is certified to be qualified for duty as a military judge of
24 a military commission under this chapter may perform
25 such other duties as are assigned to him by or with the
12
1 approval of the Judge Advocate General of the armed
2 force of which such officer is a member or the designee
3 of such Judge Advocate General.
4 ``(f) PROHIBITION ON EVALUATION OF FITNESS BY
5 CONVENING AUTHORITY.--The convening authority of a
6 military commission under this chapter shall not prepare
7 or review any report concerning the effectiveness, fitness,
8 or efficiency of a military judge detailed to the military
9 commission which relates to his performance of duty as
10 a military judge on the military commission.
11 ``§ 948k. Detail of trial counsel and defense counsel
12 ``(a) DETAIL OF COUNSEL GENERALLY.--(1) Trial
13 counsel and military defense counsel shall be detailed for
14 each military commission under this chapter.
15 ``(2) Assistant trial counsel and assistant and asso-
16 ciate defense counsel may be detailed for a military com-
17 mission under this chapter.
18 ``(3) Military defense counsel for a military commis-
19 sion under this chapter shall be detailed as soon as prac-
20 ticable.
21 ``(4) The Secretary of Defense shall prescribe regula-
22 tions providing for the manner in which trial counsel and
23 military defense counsel are detailed for military commis-
24 sions under this chapter and for the persons who are au-
13
1 thorized to detail such counsel for such military commis-
2 sions.
3 ``(b) TRIAL COUNSEL.--Subject to subsection (e),
4 trial counsel detailed for a military commission under this
5 chapter must be--
6 ``(1) a judge advocate (as that term is defined
7 in section 801 of this title (article 1 of the Uniform
8 Code of Military Justice)) who is--
9 ``(A) a graduate of an accredited law
10 school or is a member of the bar of a Federal
11 court or of the highest court of a State; and
12 ``(B) certified as competent to perform du-
13 ties as trial counsel before general courts-mar-
14 tial by the Judge Advocate General of the
15 armed force of which he is a member; or
16 ``(2) a civilian who is--
17 ``(A) a member of the bar of a Federal
18 court or of the highest court of a State; and
19 ``(B) otherwise qualified to practice before
20 the military commission pursuant to regulations
21 prescribed by the Secretary of Defense.
22 ``(c) MILITARY DEFENSE COUNSEL.--Subject to sub-
23 section (e), military defense counsel detailed for a military
24 commission under this chapter must be a judge advocate
25 (as so defined) who is--
14
1 ``(1) a graduate of an accredited law school or
2 is a member of the bar of a Federal court or of the
3 highest court of a State; and
4 ``(2) certified as competent to perform duties as
5 defense counsel before general courts-martial by the
6 Judge Advocate General of the armed force of which
7 he is a member.
8 ``(d) CHIEF PROSECUTOR; CHIEF DEFENSE COUNSEL.--(1)
9 The Chief Prosecutor in a military commission
10 under this chapter shall meet the requirements set forth
11 in subsection (b)(1).
12 ``(2) The Chief Defense Counsel in a military com-
13 mission under this chapter shall meet the requirements set
14 forth in subsection (c)(1).
15 ``(e) INELIGIBILITY OF CERTAIN INDIVIDUALS.--No
16 person who has acted as an investigator, military judge,
17 or member of a military commission under this chapter
18 in any case may act later as trial counsel or military de-
19 fense counsel in the same case. No person who has acted
20 for the prosecution before a military commission under
21 this chapter may act later in the same case for the de-
22 fense, nor may any person who has acted for the defense
23 before a military commission under this chapter act later
24 in the same case for the prosecution.
15
1 ``§ 948l. Detail or employment of reporters and inter-
2 preters
3 ``(a) COURT REPORTERS.--Under such regulations
4 as the Secretary of Defense may prescribe, the convening
5 authority of a military commission under this chapter
6 shall detail to or employ for the military commission quali-
7 fied court reporters, who shall prepare a verbatim record
8 of the proceedings of and testimony taken before the mili-
9 tary commission.
10 ``(b) INTERPRETERS.--Under such regulations as the
11 Secretary of Defense may prescribe, the convening author-
12 ity of a military commission under this chapter may detail
13 to or employ for the military commission interpreters who
14 shall interpret for the military commission, and, as nec-
15 essary, for trial counsel and defense counsel for the mili-
16 tary commission, and for the accused.
17 ``(c) TRANSCRIPT; RECORD.--The transcript of a
18 military commission under this chapter shall be under the
19 control of the convening authority of the military commis-
20 sion, who shall also be responsible for preparing the record
21 of the proceedings of the military commission.
22 ``§ 948m. Number of members; excuse of members; ab-
23 sent and additional members
24 ``(a) NUMBER OF MEMBERS.--(1) A military com-
25 mission under this chapter shall, except as provided in
26 paragraph (2), have at least five members.
16
1 ``(2) In a case in which the accused before a military
2 commission under this chapter may be sentenced to a pen-
3 alty of death, the military commission shall have the num-
4 ber of members prescribed by section 949m(c) of this title.
5 ``(b) EXCUSE OF MEMBERS.--No member of a mili-
6 tary commission under this chapter may be absent or ex-
7 cused after the military commission has been assembled
8 for the trial of a case unless excused--
9 ``(1) as a result of challenge;
10 ``(2) by the military judge for physical disability
11 or other good cause; or
12 ``(3) by order of the convening authority for
13 good cause.
14 ``(c) ABSENT AND ADDITIONAL MEMBERS.--When-
15 ever a military commission under this chapter is reduced
16 below the number of members required by subsection (a),
17 the trial may not proceed unless the convening authority
18 details new members sufficient to provide not less than
19 such number. The trial may proceed with the new mem-
20 bers present after the recorded evidence previously intro-
21 duced before the members has been read to the military
22 commission in the presence of the military judge, the ac-
23 cused (except as provided in section 949d of this title),
24 and counsel for both sides.
17
1 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE
``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; statements obtained by torture
or cruel, inhuman, or degrading treatment.
``948s. Service of charges.
2 ``§ 948q. Charges and specifications
3 ``(a) CHARGES AND SPECIFICATIONS.--Charges and
4 specifications against an accused in a military commission
5 under this chapter shall be signed by a person subject to
6 chapter 47 of this title under oath before a commissioned
7 officer of the armed forces authorized to administer oaths
8 and shall state--
9 ``(1) that the signer has personal knowledge of,
10 or reason to believe, the matters set forth therein;
11 and
12 ``(2) that they are true in fact to the best of his
13 knowledge and belief.
14 ``(b) NOTICE TO ACCUSED.--Upon the swearing of
15 the charges and specifications in accordance with sub-
16 section (a), the accused shall be informed of the charges
17 and specifications against him as soon as practicable.
18 ``§ 948r. Compulsory self-incrimination prohibited;
19 statements obtained by torture or cruel,
20 inhuman, or degrading treatment
21 ``(a) IN GENERAL.--No person shall be required to
22 testify against himself at a proceeding of a military com-
23 mission under this chapter.
18
1 ``(b) STATEMENTS OBTAINED BY TORTURE OR
2 CRUEL, INHUMAN, OR DEGRADING TREATMENT.--A
3 statement obtained by use of torture or by cruel, inhuman,
4 or degrading treatment prohibited by section 1003 of the
5 Detainee Treatment Act of 2005 (42 U.S.C. 2000dd),
6 whether or not under color of law, shall not be admissible
7 in a military commission under this chapter, except
8 against a person accused of torture or such treatment as
9 evidence the statement was made.
10 ``(c) STATEMENTS OBTAINED BY ALLEGED COERCION
11 NOT AMOUNTING TO TORTURE OR CRUEL, INHUMAN, OR
12 DEGRADING TREATMENT.--An otherwise admis-
13 sible statement obtained through the use of alleged coer-
14 cion not amounting to torture or cruel, inhuman, or de-
15 grading treatment prohibited by section 1003 of the De-
16 tainee Treatment Act of 2005 may be admitted in evidence
17 in a military commission under this chapter only if the
18 military judge finds that--
19 ``(1) the totality of the circumstances under
20 which the statement was made render it reliable and
21 possessing sufficient probative value; and
22 ``(2) the interests of justice would best be
23 served by admission of the statement into evidence.
19
1 ``§ 948s. Service of charges
2 ``The trial counsel assigned to a case before a military
3 commission under this chapter shall cause to be served
4 upon the accused and military defense counsel a copy of
5 the charges upon which trial is to be had in English and,
6 if appropriate, in another language that the accused un-
7 derstands, sufficiently in advance of trial to prepare a de-
8 fense.
9 ``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.
10 ``§ 949a. Rules
11 ``(a) PROCEDURES AND RULES OF EVIDENCE.--Pre-
12 trial, trial, and post-trial procedures, including elements
13 and modes of proof, for cases triable by military commis-
14 sion under this chapter may be prescribed by the Secretary
15 of Defense. Such procedures may not be contrary to or
16 inconsistent with this chapter. Except as otherwise pro-
17 vided in this chapter or chapter 47 of this title, the proce-
18 dures and rules of evidence applicable in trials by general
20
1 courts-martial of the United States shall apply in trials
2 by military commission under this chapter.
3 ``(b) EXCEPTIONS.--(1) The Secretary of Defense, in
4 consultation with the Attorney General, may make such
5 exceptions in the applicability in trials by military commis-
6 sion under this chapter from the procedures and rules of
7 evidence otherwise applicable in general courts-martial as
8 may be required by the unique circumstances of the con-
9 duct of military and intelligence operations during hos-
10 tilities or by other practical need.
11 ``(2) Notwithstanding any exceptions authorized by
12 paragraph (1), the procedures and rules of evidence in
13 trials by military commission under this chapter shall in-
14 clude, at a minimum, the following rights:
15 ``(A) To examine and respond to all evidence
16 considered by the military commission on the issue
17 of guilt or innocence and for sentencing.
18 ``(B) To be present at all sessions of the mili-
19 tary commission (other than those for deliberations
20 or voting), except when excluded under section 949d
21 of this title.
22 ``(C) To the assistance of counsel.
23 ``(D) To self-representation, if the accused
24 knowingly and competently waives the assistance of
25 counsel, subject to the provisions of paragraph (4).
21
1 ``(E) To the suppression of evidence that is not
2 reliable or probative.
3 ``(F) To the suppression of evidence the pro-
4 bative value of which is substantially outweighed
5 by--
6 ``(i) the danger of unfair prejudice, confu-
7 sion of the issues, or misleading the members;
8 or
9 ``(ii) considerations of undue delay, waste
10 of time, or needless presentation of cumulative
11 evidence.
12 ``(3) In making exceptions in the applicability in
13 trials by military commission under this chapter from the
14 procedures and rules otherwise applicable in general
15 courts-martial, the Secretary of Defense may provide the
16 following:
17 ``(A) Evidence seized outside the United States
18 shall not be excluded from trial by military commis-
19 sion on the grounds that the evidence was not seized
20 pursuant to a search warrant or authorization.
21 ``(B) A statement of the accused that is other-
22 wise admissible shall not be excluded from trial by
23 military commission on grounds of alleged coercion
24 or compulsory self-incrimination so long as the evi-
22
1 dence complies with the provisions of section 948r of
2 this title.
3 ``(C) Evidence shall be admitted as authentic so
4 long as--
5 ``(i) the military judge of the military com-
6 mission determines that there is sufficient evi-
7 dence that the evidence is what it is claimed to
8 be; and
9 ``(ii) the military judge instructs the mem-
10 bers that they may consider any issue as to au-
11 thentication or identification of evidence in de-
12 termining the weight, if any, to be given to the
13 evidence.
14 ``(D) Hearsay evidence not otherwise admissible
15 under the rules of evidence applicable in trial by
16 general courts-martial may be admitted in a trial by
17 military commission only if--
18 ``(i) the proponent of the evidence makes
19 known to the adverse party, sufficiently in ad-
20 vance of trial or hearing to provide the adverse
21 party with a fair opportunity to meet the evi-
22 dence, the proponent's intention to offer the
23 evidence, and the particulars of the evidence
24 (including information on the circumstances
25 under which the evidence was obtained); and
23
1 ``(ii) the military judge finds that the total-
2 ity of the circumstances render the evidence
3 more probative on the point for which it is of-
4 fered than other evidence which the proponent
5 can procure through reasonable efforts, taking
6 into consideration the unique circumstances of
7 the conduct of military and intelligence oper-
8 ations during hostilities.
9 ``(4)(A) The accused in a military commission under
10 this chapter who exercises the right to self-representation
11 under paragraph (2)(D) shall conform his deportment and
12 the conduct of the defense to the rules of evidence, proce-
13 dure, and decorum applicable to trials by military commis-
14 sion.
15 ``(B) Failure of the accused to conform to the rules
16 described in subparagraph (A) may result in a partial or
17 total revocation by the military judge of the right of self-
18 representation under paragraph (2)(D). In such case, the
19 detailed defense counsel of the accused or an appropriately
20 authorized civilian counsel shall perform the functions nec-
21 essary for the defense.
22 ``(c) DELEGATION OF AUTHORITY TO PRESCRIBE
23 REGULATIONS.--The Secretary of Defense may delegate
24 the authority of the Secretary to prescribe regulations
25 under this chapter.
24
1 ``§ 949b. Unlawfully influencing action of military
2 commission
3 ``(a) IN GENERAL.--(1) No authority convening a
4 military commission under this chapter may censure, rep-
5 rimand, or admonish the military commission, or any
6 member, military judge, or counsel thereof, with respect
7 to the findings or sentence adjudged by the military com-
8 mission, or with respect to any other exercises of its or
9 their functions in the conduct of the proceedings.
10 ``(2) No person may attempt to coerce or, by any un-
11 authorized means, influence--
12 ``(A) the action of a military commission under
13 this chapter, or any member thereof, in reaching the
14 findings or sentence in any case;
15 ``(B) the action of any convening, approving, or
16 reviewing authority with respect to their judicial
17 acts; or
18 ``(C) the exercise of professional judgment by
19 trial counsel or defense counsel.
20 ``(3) The provisions of this subsection shall not apply
21 with respect to--
22 ``(A) general instructional or informational
23 courses in military justice if such courses are de-
24 signed solely for the purpose of instructing members
25 of a command in the substantive and procedural as-
26 pects of military commissions; or
25
1 ``(B) statements and instructions given in open
2 proceedings by a military judge or counsel.
3 ``(b) PROHIBITION ON CONSIDERATION OF ACTIONS
4 ON COMMISSION IN EVALUATION OF FITNESS.--In the
5 preparation of an effectiveness, fitness, or efficiency report
6 or any other report or document used in whole or in part
7 for the purpose of determining whether a commissioned
8 officer of the armed forces is qualified to be advanced in
9 grade, or in determining the assignment or transfer of any
10 such officer or whether any such officer should be retained
11 on active duty, no person may--
12 ``(1) consider or evaluate the performance of
13 duty of any member of a military commission under
14 this chapter; or
15 ``(2) give a less favorable rating or evaluation
16 to any commissioned officer because of the zeal with
17 which such officer, in acting as counsel, represented
18 any accused before a military commission under this
19 chapter.
20 ``§ 949c. Duties of trial counsel and defense counsel
21 ``(a) TRIAL COUNSEL.--The trial counsel of a mili-
22 tary commission under this chapter shall prosecute in the
23 name of the United States.
26
1 ``(b) DEFENSE COUNSEL.--(1) The accused shall be
2 represented in his defense before a military commission
3 under this chapter as provided in this subsection.
4 ``(2) The accused shall be represented by military
5 counsel detailed under section 948k of this title.
6 ``(3) The accused may be represented by civilian
7 counsel if retained by the accused, provided that such civil-
8 ian counsel--
9 ``(A) is a United States citizen;
10 ``(B) is admitted to the practice of law in a
11 State, district, or possession of the United States, or
12 before a Federal court;
13 ``(C) has not been the subject of any sanction
14 of disciplinary action by any court, bar, or other
15 competent governmental authority for relevant mis-
16 conduct;
17 ``(D) has been determined to be eligible for ac-
18 cess to information classified at the level Secret or
19 higher; and
20 ``(E) has signed a written agreement to comply
21 with all applicable regulations or instructions for
22 counsel, including any rules of court for conduct
23 during the proceedings.
24 ``(4) If the accused is represented by civilian counsel,
25 military counsel detailed shall act as associate counsel.
27
1 ``(5) The accused is not entitled to be represented by
2 more than one military counsel. However, the person au-
3 thorized under regulations prescribed under section 948k
4 of this title to detail counsel, in such person's sole discre-
5 tion, may detail additional military counsel to represent
6 the accused.
7 ``(6) Defense counsel may cross-examine each witness
8 for the prosecution who testifies before a military commis-
9 sion under this chapter.
10 ``§ 949d. Sessions
11 ``(a) SESSIONS WITHOUT PRESENCE OF MEMBERS.--(1)
12 At any time after the service of charges which
13 have been referred for trial by military commission under
14 this chapter, the military judge may call the military com-
15 mission into session without the presence of the members
16 for the purpose of--
17 ``(A) hearing and determining motions raising
18 defenses or objections which are capable of deter-
19 mination without trial of the issues raised by a plea
20 of not guilty;
21 ``(B) hearing and ruling upon any matter which
22 may be ruled upon by the military judge under this
23 chapter, whether or not the matter is appropriate for
24 later consideration or decision by the members;
28
1 ``(C) if permitted by regulations prescribed by
2 the Secretary of Defense, receiving the pleas of the
3 accused; and
4 ``(D) performing any other procedural function
5 which may be performed by the military judge under
6 this chapter or under rules prescribed pursuant to
7 section 949a of this title and which does not require
8 the presence of the members.
9 ``(2) Except as provided in subsections (b), (c), and
10 (d), any proceedings under paragraph (1) shall be con-
11 ducted in the presence of the accused, defense counsel, and
12 trial counsel, and shall be made part of the record.
13 ``(b) DELIBERATION OR VOTE OF MEMBERS.--When
14 the members of a military commission under this chapter
15 deliberate or vote, only the members may be present.
16 ``(c) CLOSURE OF PROCEEDINGS.--(1) The military
17 judge may close to the public all or part of the proceedings
18 of a military commission under this chapter.
19 ``(2) The military judge may close to the public all
20 or a portion of the proceedings under paragraph (1) only
21 upon making a specific finding that such closure is nec-
22 essary to--
23 ``(A) protect information the disclosure of which
24 could reasonably be expected to cause damage to the
29
1 national security, including intelligence or law en-
2 forcement sources, methods, or activities; or
3 ``(B) ensure the physical safety of individuals.
4 ``(3) A finding under paragraph (2) may be based
5 upon a presentation, including a presentation ex parte or
6 in camera, by either trial counsel or defense counsel.
7 ``(4)(A) Subject to the provisions of this paragraph,
8 classified information shall be handled in accordance with
9 rules applicable in trials by general courts-martial of the
10 United States.
11 ``(B) Classified information shall be protected and is
12 privileged from disclosure if disclosure would be detri-
13 mental to the national security. This subparagraph applies
14 to all stages of proceedings of military commissions under
15 this chapter.
16 ``(C) After the original classification authority or
17 head of the agency concerned has certified in writing that
18 evidence and the sources thereof have been declassified to
19 the maximum extent possible, consistent with the require-
20 ments of national security, the military judge may, to the
21 extent practicable in accordance with the rules applicable
22 in trials by court-martial, authorize--
23 ``(i) the deletion of specified items of classified
24 information from documents made available to the
25 accused;
30
1 ``(ii) the substitution of a portion or summary
2 of the information for such classified documents; or
3 ``(iii) the substitution of a statement admitting
4 relevant facts that the classified information would
5 tend to prove.
6 ``(D) A claim of privilege under this paragraph, and
7 any materials in support thereof, shall, upon the request
8 of the Government, be considered by the military judge
9 in camera and shall not be disclosed to the accused.
10 ``(d) EXCLUSION OF ACCUSED FROM CERTAIN PRO-
11 CEEDINGS.--The military judge may exclude the accused
12 from any portion of a proceeding upon a determination
13 that, after being warned by the military judge, the accused
14 persists in conduct that justifies exclusion from the court-
15 room--
16 ``(1) to ensure the physical safety of individuals;
17 or
18 ``(2) to prevent disruption of the proceedings by
19 the accused.
20 ``§ 949e. Continuances
21 ``The military judge in a military commission under
22 this chapter may, for reasonable cause, grant a continu-
23 ance to any party for such time, and as often, as may
24 appear to be just.
31
1 ``§ 949f. Challenges
2 ``(a) CHALLENGES AUTHORIZED.--The military
3 judge and members of a military commission under this
4 chapter may be challenged by the accused or trial counsel
5 for cause stated to the military commission. The military
6 judge shall determine the relevance and validity of chal-
7 lenges for cause, and may not receive a challenge to more
8 than one person at a time. Challenges by trial counsel
9 shall ordinarily be presented and decided before those by
10 the accused are offered.
11 ``(b) PEREMPTORY CHALLENGES.--The accused and
12 trial counsel are each entitled to one peremptory challenge,
13 but the military judge may not be challenged except for
14 cause.
15 ``(c) CHALLENGES AGAINST ADDITIONAL MEM-
16 BERS.--Whenever additional members are detailed to a
17 military commission under this chapter, and after any
18 challenges for cause against such additional members are
19 presented and decided, the accused and trial counsel are
20 each entitled to one peremptory challenge against mem-
21 bers not previously subject to peremptory challenge.
22 ``§ 949g. Oaths
23 ``(a) IN GENERAL.--(1) Before performing their re-
24 spective duties in a military commission under this chap-
25 ter, military judges, members, trial counsel, defense coun-
32
1 sel, reporters, and interpreters shall take an oath to per-
2 form their duties faithfully.
3 ``(2) The form of the oath required by paragraph (1),
4 the time and place of the taking thereof, the manner of
5 recording thereof, and whether the oath shall be taken for
6 all cases in which duties are to be performed or for a par-
7 ticular case, shall be as provided in regulations prescribed
8 by the Secretary of Defense. The regulations may provide
9 that--
10 ``(A) an oath to perform faithfully duties as a
11 military judge, trial counsel, or defense counsel may
12 be taken at any time by any judge advocate or other
13 person certified to be qualified or competent for the
14 duty; and
15 ``(B) if such an oath is taken, such oath need
16 not again be taken at the time the judge advocate
17 or other person is detailed to that duty.
18 ``(b) WITNESSES.--Each witness before a military
19 commission under this chapter shall be examined on oath.
20 ``(c) OATH DEFINED.--In this section, the term
21 `oath' includes an affirmation.
22 ``§ 949h. Former jeopardy
23 ``(a) IN GENERAL.--No person may, without his con-
24 sent, be tried by a military commission under this chapter
25 a second time for the same offense.
33
1 ``(b) SCOPE OF TRIAL.--No proceeding in which the
2 accused has been found guilty by military commission
3 under this chapter upon any charge or specification is a
4 trial in the sense of this section until the finding of guilty
5 has become final after review of the case has been fully
6 completed.
7 ``§ 949i. Pleas of the accused
8 ``(a) PLEA OF NOT GUILTY.--If an accused in a mili-
9 tary commission under this chapter after a plea of guilty
10 sets up matter inconsistent with the plea, or if it appears
11 that the accused has entered the plea of guilty through
12 lack of understanding of its meaning and effect, or if the
13 accused fails or refuses to plead, a plea of not guilty shall
14 be entered in the record, and the military commission shall
15 proceed as though the accused had pleaded not guilty.
16 ``(b) FINDING OF GUILT AFTER GUILTY PLEA.--
17 With respect to any charge or specification to which a plea
18 of guilty has been made by the accused in a military com-
19 mission under this chapter and accepted by the military
20 judge, a finding of guilty of the charge or specification
21 may be entered immediately without a vote. The finding
22 shall constitute the finding of the military commission un-
23 less the plea of guilty is withdrawn prior to announcement
24 of the sentence, in which event the proceedings shall con-
25 tinue as though the accused had pleaded not guilty.
34
1 ``§ 949j. Opportunity to obtain witnesses and other
2 evidence
3 ``(a) IN GENERAL.--(1) Defense counsel in a military
4 commission under this chapter shall have a reasonable op-
5 portunity to obtain witnesses and other evidence as pro-
6 vided in regulations prescribed by the Secretary of De-
7 fense.
8 ``(2) Process issued in military commissions under
9 this chapter to compel witnesses to appear and testify and
10 to compel the production of other evidence--
11 ``(A) shall be similar to that which courts of the
12 United States having criminal jurisdiction may law-
13 fully issue; and
14 ``(B) shall run to any place where the United
15 States shall have jurisdiction thereof.
16 ``(b) DISCLOSURE OF EXCULPATORY EVIDENCE.--As
17 soon as practicable, trial counsel in a military commission
18 under this chapter shall disclose to the defense the exist-
19 ence of any known evidence that reasonably tends to excul-
20 pate or reduce the degree of guilt of the accused.
21 ``(c) TREATMENT OF CERTAIN ITEMS.--In accord-
22 ance with the rules applicable in trials by general courts-
23 martial in the United States, and to the extent provided
24 in such rules, the military judge in a military commission
25 under this chapter may authorize trial counsel, in making
35
1 documents available to the accused pursuant to sub-
2 sections (a) and (b)--
3 ``(1) to delete specified items of classified infor-
4 mation from such documents;
5 ``(2) to substitute an unclassified summary of
6 the classified information in such documents; or
7 ``(3) to substitute an unclassified statement ad-
8 mitting relevant facts that classified information in
9 such documents would tend to prove.
10 ``§ 949k. Defense of lack of mental responsibility
11 ``(a) AFFIRMATIVE DEFENSE.--It is an affirmative
12 defense in a trial by military commission under this chap-
13 ter that, at the time of the commission of the acts consti-
14 tuting the offense, the accused, as a result of a severe
15 mental disease or defect, was unable to appreciate the na-
16 ture and quality or the wrongfulness of the acts. Mental
17 disease or defect does not otherwise constitute a defense.
18 ``(b) BURDEN OF PROOF.--The accused in a military
19 commission under this chapter has the burden of proving
20 the defense of lack of mental responsibility by clear and
21 convincing evidence.
22 ``(c) FINDINGS FOLLOWING ASSERTION OF DE-
23 FENSE.--Whenever lack of mental responsibility of the ac-
24 cused with respect to an offense is properly at issue in
25 a military commission under this chapter, the military
36
1 judge shall instruct the members as to the defense of lack
2 of mental responsibility under this section and shall
3 charge the members to find the accused--
4 ``(1) guilty;
5 ``(2) not guilty; or
6 ``(3) subject to subsection (d), not guilty by rea-
7 son of lack of mental responsibility.
8 ``(d) MAJORITY VOTE REQUIRED FOR FINDING.--
9 The accused shall be found not guilty by reason of lack
10 of mental responsibility under subsection (c)(3) only if a
11 majority of the members present at the time the vote is
12 taken determines that the defense of lack of mental re-
13 sponsibility has been established.
14 ``§ 949l. Voting and rulings
15 ``(a) VOTE BY SECRET WRITTEN BALLOT.--Voting
16 by members of a military commission under this chapter
17 on the findings and on the sentence shall be by secret writ-
18 ten ballot.
19 ``(b) RULINGS.--(1) The military judge in a military
20 commission under this chapter shall rule upon all ques-
21 tions of law, including the admissibility of evidence and
22 all interlocutory questions arising during the proceedings.
23 ``(2) Any ruling made by the military judge upon a
24 question of law or an interlocutory question (other than
25 the factual issue of mental responsibility of the accused)
37
1 is conclusive and constitutes the ruling of the military
2 commission. However, a military judge may change his
3 ruling at any time during the trial.
4 ``(c) INSTRUCTIONS PRIOR TO VOTE.--Before a vote
5 is taken of the findings of a military commission under
6 this chapter, the military judge shall, in the presence of
7 the accused and counsel, instruct the members as to the
8 elements of the offense and charge the members--
9 ``(1) that the accused must be presumed to be
10 innocent until his guilt is established by legal and
11 competent evidence beyond a reasonable doubt;
12 ``(2) that in the case being considered, if there
13 is a reasonable doubt as to the guilt of the accused,
14 the doubt must be resolved in favor of the accused
15 and he must be acquitted;
16 ``(3) that, if there is reasonable doubt as to the
17 degree of guilt, the finding must be in a lower de-
18 gree as to which there is no reasonable doubt; and
19 ``(4) that the burden of proof to establish the
20 guilt of the accused beyond a reasonable doubt is
21 upon the United States.
22 ``§ 949m. Number of votes required
23 ``(a) CONVICTION.--No person may be convicted by
24 a military commission under this chapter of any offense,
25 except as provided in section 949i(b) of this title or by
38
1 concurrence of two-thirds of the members present at the
2 time the vote is taken.
3 ``(b) SENTENCES.--(1) Except as provided in para-
4 graphs (2) and (3), sentences shall be determined by a
5 military commission by the concurrence of two-thirds of
6 the members present at the time the vote is taken.
7 ``(2) No person may be sentenced to death by a mili-
8 tary commission, except insofar as--
9 ``(A) the penalty of death has been expressly
10 authorized under this chapter, chapter 47 of this
11 title, or the law of war for an offense of which the
12 accused has been found guilty;
13 ``(B) trial counsel expressly sought the penalty
14 of death by filing an appropriate notice in advance
15 of trial;
16 ``(C) the accused was convicted of the offense
17 by the concurrence of all the members present at the
18 time the vote is taken; and
19 ``(D) all members present at the time the vote
20 was taken concurred in the sentence of death.
21 ``(3) No person may be sentenced to life imprison-
22 ment, or to confinement for more than 10 years, by a mili-
23 tary commission under this chapter except by the concur-
24 rence of three-fourths of the members present at the time
25 the vote is taken.
39
1 ``(c) NUMBER OF MEMBERS REQUIRED FOR PEN-
2 ALTY OF DEATH.--(1) Except as provided in paragraph
3 (2), in a case in which the penalty of death is sought, the
4 number of members of the military commission under this
5 chapter shall be not less than 12 members.
6 ``(2) In any case described in paragraph (1) in which
7 12 members are not reasonably available for a military
8 commission because of physical conditions or military ex-
9 igencies, the convening authority shall specify a lesser
10 number of members for the military commission (but not
11 fewer than 5 members), and the military commission may
12 be assembled, and the trial held, with not less than the
13 number of members so specified. In any such case, the
14 convening authority shall make a detailed written state-
15 ment, to be appended to the record, stating why a greater
16 number of members were not reasonably available.
17 ``§ 949n. Military commission to announce action
18 ``A military commission under this chapter shall an-
19 nounce its findings and sentence to the parties as soon
20 as determined.
21 ``§ 949o. Record of trial
22 ``(a) RECORD; AUTHENTICATION.--Each military
23 commission under this chapter shall keep a separate, ver-
24 batim, record of the proceedings in each case brought be-
25 fore it, and the record shall be authenticated by the signa-
40
1 ture of the military judge. If the record cannot be authen-
2 ticated by the military judge by reason of his death, dis-
3 ability, or absence, it shall be authenticated by the signa-
4 ture of the trial counsel or by a member if the trial counsel
5 is unable to authenticate it by reason of his death, dis-
6 ability, or absence. Where appropriate, and as provided
7 in regulations prescribed by the Secretary of Defense, the
8 record of a military commission under this chapter may
9 contain a classified annex.
10 ``(b) COMPLETE RECORD REQUIRED.--A complete
11 record of the proceedings and testimony shall be prepared
12 in every military commission under this chapter.
13 ``(c) PROVISION OF COPY TO ACCUSED.--A copy of
14 the record of the proceedings of the military commission
15 under this chapter shall be given the accused as soon as
16 it is authenticated. If the record contains classified infor-
17 mation, or a classified annex, the accused shall receive a
18 redacted version of the record consistent with the require-
19 ments of section 949d(c)(4) of this title. Defense counsel
20 shall have access to the unredacted record, as provided
21 in regulations prescribed by the Secretary of Defense.
22 ``SUBCHAPTER V--SENTENCES
``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.
41
1 ``§ 949s. Cruel or unusual punishments prohibited
2 ``Punishment by flogging, or by branding, marking,
3 or tattooing on the body, or any other cruel or unusual
4 punishment, may not be adjudged by a military commis-
5 sion under this chapter or inflicted under this chapter
6 upon any person subject to this chapter. The use of irons,
7 single or double, except for the purpose of safe custody,
8 is prohibited under this chapter.
9 ``§ 949t. Maximum limits
10 ``The punishment which a military commission under
11 this chapter may direct for an offense may not exceed such
12 limits as the President or Secretary of Defense may pre-
13 scribe for that offense.
14 ``§ 949u. Execution of confinement
15 ``(a) IN GENERAL.--Under such regulations as the
16 Secretary of Defense may prescribe, a sentence of confine-
17 ment adjudged by a military commission under this chap-
18 ter may be carried into execution by confinement--
19 ``(1) in any place of confinement under the con-
20 trol of any of the armed forces; or
21 ``(2) in any penal or correctional institution
22 under the control of the United States or its allies,
23 or which the United States may be allowed to use.
24 ``(b) TREATMENT DURING CONFINEMENT BY OTHER
25 THAN THE ARMED FORCES.--Persons confined under
26 subsection (a)(2) in a penal or correctional institution not
42
1 under the control of an armed force are subject to the
2 same discipline and treatment as persons confined or com-
3 mitted by the courts of the United States or of the State,
4 District of Columbia, or place in which the institution is
5 situated.
6 ``SUBCHAPTER VI--POST-TRIAL PROCEDURE
7 AND REVIEW OF MILITARY COMMISSIONS
``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by United States Court of Appeals for the Armed Forces and Su-
preme Court.
``950g. Appellate counsel
``950h. Execution of sentence; suspension of sentence.
``950i. Finality of proceedings, findings, and sentences.
8 ``§ 950a. Error of law; lesser included offense
9 ``(a) ERROR OF LAW.--A finding or sentence of a
10 military commission under this chapter may not be held
11 incorrect on the ground of an error of law unless the error
12 materially prejudices the substantial rights of the accused.
13 ``(b) LESSER INCLUDED OFFENSE.--Any reviewing
14 authority with the power to approve or affirm a finding
15 of guilty by a military commission under this chapter may
16 approve or affirm, instead, so much of the finding as in-
17 cludes a lesser included offense.
18 ``§ 950b. Review by the convening authority
19 ``(a) NOTICE TO CONVENING AUTHORITY OF FIND-
20 INGS AND SENTENCE.--The findings and sentence of a
43
1 military commission under this chapter shall be reported
2 in writing promptly to the convening authority after the
3 announcement of the sentence.
4 ``(b) SUBMITTAL OF MATTERS BY ACCUSED TO CON-
5 VENING AUTHORITY.--(1) The accused may submit to the
6 convening authority matters for consideration by the con-
7 vening authority with respect to the findings and the sen-
8 tence of the military commission under this chapter.
9 ``(2)(A) Except as provided in subparagraph (B), a
10 submittal under paragraph (1) shall be made in writing
11 within 20 days after accused has been give an authenti-
12 cated record of trial under section 949o(c) of this title.
13 ``(B) If the accused shows that additional time is re-
14 quired for the accused to make a submittal under para-
15 graph (1), the convening authority may, for good cause,
16 extend the applicable period under subparagraph (A) for
17 not more than an additional 20 days.
18 ``(3) The accused may waive his right to make a sub-
19 mittal to the convening authority under paragraph (1).
20 Such a waiver shall be made in writing, and may not be
21 revoked. For the purposes of subsection (c)(2), the time
22 within which the accused may make a submittal under this
23 subsection shall be deemed to have expired upon the sub-
24 mittal of a waiver under this paragraph to the convening
25 authority.
44
1 ``(c) ACTION BY CONVENING AUTHORITY.--(1) The
2 authority under this subsection to modify the findings and
3 sentence of a military commission under this chapter is
4 a matter of the sole discretion and prerogative of the con-
5 vening authority.
6 ``(2) The convening authority is not required to take
7 action on the findings of a military commission under this
8 chapter. If the convening authority takes action on the
9 findings, the convening authority may, in his sole discre-
10 tion, only--
11 ``(A) dismiss any charge or specification by set-
12 ting aside a finding of guilty thereto; or
13 ``(B) change a finding of guilty to a charge to
14 a finding of guilty to an offense that is a lesser in-
15 cluded offense of the offense stated in the charge.
16 ``(3)(A) The convening authority shall take action on
17 the sentence of a military commission under this chapter.
18 ``(B) Subject to regulations prescribed by the Sec-
19 retary of Defense, action under this paragraph may be
20 taken only after consideration of any matters submitted
21 by the accused under subsection (b) or after the time for
22 submitting such matters expires, whichever is earlier.
23 ``(C) In taking action under this paragraph, the con-
24 vening authority may, in his sole discretion, approve, dis-
25 approve, commute, or suspend the sentence in whole or
45
1 in part. The convening authority may not increase a sen-
2 tence beyond that which is found by the military commis-
3 sion.
4 ``(4) The convening authority shall serve on the ac-
5 cused or on defense counsel notice of any action taken by
6 the convening authority under this subsection.
7 ``(d) ORDER OF REVISION OR REHEARING.--(1) Sub-
8 ject to paragraphs (2) and (3), the convening authority
9 of a military commission under this chapter may, in his
10 sole discretion, order a proceeding in revision or a rehear-
11 ing.
12 ``(2)(A) Except as provided in subparagraph (B), a
13 proceeding in revision may be ordered by the convening
14 authority if--
15 ``(i) there is an apparent error or omission in
16 the record; or
17 ``(ii) the record shows improper or inconsistent
18 action by the military commission with respect to
19 the findings or sentence that can be rectified without
20 material prejudice to the substantial rights of the
21 accused.
22 ``(B) In no case may a proceeding in revision--
23 ``(i) reconsider a finding of not guilty of a spec-
24 ification or a ruling which amounts to a finding of
25 not guilty;
46
1 ``(ii) reconsider a finding of not guilty of any
2 charge, unless there has been a finding of guilty
3 under a specification laid under that charge, which
4 sufficiently alleges a violation; or
5 ``(iii) increase the severity of the sentence un-
6 less the sentence prescribed for the offense is man-
7 datory.
8 ``(3) A rehearing may be ordered by the convening
9 authority if the convening authority disapproves the find-
10 ings and sentence and states the reasons for disapproval
11 of the findings. If the convening authority disapproves the
12 finding and sentence and does not order a rehearing, the
13 convening authority shall dismiss the charges. A rehearing
14 as to the findings may not be ordered by the convening
15 authority when there is a lack of sufficient evidence in the
16 record to support the findings. A rehearing as to the sen-
17 tence may be ordered by the convening authority if the
18 convening authority disapproves the sentence.
19 ``§ 950c. Waiver or withdrawal of appeal
20 ``(a) WAIVER OF RIGHT OF REVIEW.--(1) An ac-
21 cused may file with the convening authority a statement
22 expressly waiving the right of the accused to appellate re-
23 view by the United States Court of Appeals for the Armed
24 Forces under section 950f(a) of this title of the final deci-
25 sion of the military commission under this chapter.
47
1 ``(2) A waiver under paragraph (1) shall be signed
2 by both the accused and a defense counsel.
3 ``(3) A waiver under paragraph (1) must be filed, if
4 at all, within 10 days after notice of the action is served
5 on the accused or on defense counsel under section
6 950b(c)(4) of this title. The convening authority, for good
7 cause, may extend the period for such filing by not more
8 than 30 days.
9 ``(b) WITHDRAWAL OF APPEAL.--Except in a case in
10 which the sentence as approved under section 950b of this
11 title extends to death, the accused may withdraw an ap-
12 peal at any time.
13 ``(c) EFFECT OF WAIVER OF WITHDRAWAL.--A
14 waiver of the right to appellate review or the withdrawal
15 of an appeal under this section bars review under section
16 950f of this title.
17 ``§ 950d. Appeal by the United States
18 ``(a) INTERLOCUTORY APPEAL.--(1) Except as pro-
19 vided in paragraph (2), in a trial by military commission
20 under this chapter, the United States may take an inter-
21 locutory appeal to the United States Court of Appeals for
22 the Armed Forces under section 950f of this title of any
23 order or ruling of the military judge that--
24 ``(A) terminates proceedings of the military
25 commission with respect to a charge or specification;
48
1 ``(B) excludes evidence that is substantial proof
2 of a fact material in the proceeding; or
3 ``(C) relates to a matter under subsection (c) or
4 (d) of section 949d of this title.
5 ``(2) The United States may not appeal under para-
6 graph (1) an order or ruling that is, or amounts to, a find-
7 ing of not guilty by the military commission with respect
8 to a charge or specification.
9 ``(b) NOTICE OF APPEAL.--The United States shall
10 take an appeal of an order or ruling under subsection (a)
11 by filing a notice of appeal with the military judge within
12 five days after the date of the order or ruling.
13 ``(c) APPEAL.--An appeal under this section shall be
14 forwarded, by means specified in regulations prescribed
15 the Secretary of Defense, directly to the United States
16 Court of Appeals for the Armed Forces. In ruling on an
17 appeal under this section, the Court may act only with
18 respect to matters of law.
19 ``§ 950e. Rehearings
20 ``(a) COMPOSITION OF MILITARY COMMISSION FOR
21 REHEARING.--Each rehearing under this chapter shall
22 take place before a military commission under this chapter
23 composed of members who were not members of the mili-
24 tary commission which first heard the case.
49
1 ``(b) SCOPE OF REHEARING.--(1) Upon a rehear-
2 ing--
3 ``(A) the accused may not be tried for any of-
4 fense of which he was found not guilty by the first
5 military commission; and
6 ``(B) no sentence in excess of or more than the
7 original sentence may be imposed unless--
8 ``(i) the sentence is based upon a finding
9 of guilty of an offense not considered upon the
10 merits in the original proceedings; or
11 ``(ii) the sentence prescribed for the of-
12 fense is mandatory.
13 ``(2) Upon a rehearing, if the sentence approved after
14 the first military commission was in accordance with a
15 pretrial agreement and the accused at the rehearing
16 changes his plea with respect to the charges or specifica-
17 tions upon which the pretrial agreement was based, or oth-
18 erwise does not comply with pretrial agreement, the sen-
19 tence as to those charges or specifications may include any
20 punishment not in excess of that lawfully adjudged at the
21 first military commission.
22 ``§ 950f. Review by United States Court of Appeals for
23 the Armed Forces and Supreme Court
24 ``(a) REVIEW BY UNITED STATES COURT OF AP-
25 PEALS FOR THE ARMED FORCES.--(1) Subject to the pro-
50
1 visions of this subsection, the United States Court of Ap-
2 peals for the Armed Forces shall have exclusive jurisdic-
3 tion to determine the final validity of any judgment ren-
4 dered by a military commission under this chapter.
5 ``(2) The United States Court of Appeals for the
6 Armed Forces may not determine the final validity of a
7 judgment of a military commission under this subsection
8 until all other appeals from the judgment under this chap-
9 ter have been waived or exhausted.
10 ``(3)(A) An accused may seek a determination by the
11 United States Court of Appeals for the Armed Forces of
12 the final validity of the judgment of the military commis-
13 sion under this subsection only upon petition to the Court
14 for such determination.
15 ``(B) A petition on a judgment under subparagraph
16 (A) shall be filed by the accused in the Court not later
17 than 20 days after the date on which written notice of
18 the final decision of the military commission is served on
19 the accused or defense counsel.
20 ``(C) The accused may not file a petition under sub-
21 paragraph (A) if the accused has waived the right to ap-
22 pellate review under section 950c(a) of this title.
23 ``(4) The determination by the United States Court
24 of Appeals for the Armed Forces of the final validity of
25 a judgment of a military commission under this subsection
51
1 shall be governed by the provisions of section 1005(e)(3)
2 of the Detainee Treatment Act of 2005 (42 U.S.C. 801
3 note).
4 ``(b) REVIEW BY SUPREME COURT.--The Supreme
5 Court of the United States may review by writ of certiorari
6 pursuant to section 1257 of title 28 the final judgment
7 of the United States Court of Appeals for the Armed
8 Forces in a determination under subsection (a).
9 ``§ 950g. Appellate counsel
10 ``(a) APPOINTMENT.--The Secretary of Defense
11 shall, by regulation, establish procedures for the appoint-
12 ment of appellate counsel for the United States and for
13 the accused in military commissions under this chapter.
14 Appellate counsel shall meet the qualifications of counsel
15 for appearing before military commissions under this
16 chapter.
17 ``(b) REPRESENTATION OF UNITED STATES.--Appel-
18 late counsel may represent the United States in any ap-
19 peal or review proceeding under this chapter. Appellate
20 Government counsel may represent the United States be-
21 fore the Supreme Court in case arising under this chapter
22 when requested to do so by the Attorney General.
23 ``(c) REPRESENTATION OF ACCUSED.--The accused
24 shall be represented before the United States Court of Ap-
25 peals for the Armed Forces or the Supreme Court by mili-
52
1 tary appellate counsel, or by civilian counsel if retained
2 by him.
3 ``§ 950h. Execution of sentence; suspension of sen-
4 tence
5 ``(a) EXECUTION OF SENTENCE OF DEATH ONLY
6 UPON APPROVAL BY THE PRESIDENT.--If the sentence
7 of a military commission under this chapter extends to
8 death, that part of the sentence providing for death may
9 not be executed until approved by the President. In such
10 a case, the President may commute, remit, or suspend the
11 sentence, or any part thereof, as he sees fit.
12 ``(b) EXECUTION OF SENTENCE OF DEATH ONLY
13 UPON FINAL JUDGMENT OF LEGALITY OF PRO-
14 CEEDINGD.--(1) If the sentence of a military commission
15 under this chapter extends to death, the sentence may not
16 be executed until there is a final judgement as to the legal-
17 ity of the proceedings (and with respect to death, approval
18 under subsection (a)).
19 ``(2) A judgement as to legality of proceedings is final
20 for purposes of paragraph (1) when--
21 ``(A) the time for the accused to file a petition
22 for review by the United States Court of Appeals for
23 the Armed Forces has expired and the accused has
24 not filed a timely petition for such review and the
25 case is not otherwise under review by the Court; or
53
1 ``(B) review is completed in accordance with the
2 judgment of the United States Court of Appeals for
3 the Armed Forces and (A) a petition for a writ of
4 certiorari is not timely filed, (B) such a petition is
5 denied by the Supreme Court, or (C) review is other-
6 wise completed in accordance with the judgment of
7 the Supreme Court.
8 ``(c) SUSPENSION OF SENTENCE.--The Secretary of
9 the Defense, or the convening authority acting on the case
10 (if other than the Secretary), may suspend the execution
11 of any sentence or part thereof in the case, except a sen-
12 tence of death.
13 ``§ 950i. Finality of proceedings, findings, and sen-
14 tences
15 ``(a) FINALITY.--The appellate review of records of
16 trial provided by this chapter, and the proceedings, find-
17 ings, and sentences of military commissions as approved,
18 reviewed, or affirmed as required by this chapter, are final
19 and conclusive. Orders publishing the proceedings of mili-
20 tary commissions under this chapter are binding upon all
21 departments, courts, agencies, and officers of the United
22 States, except as otherwise provided by the President.
23 ``(b) PROVISIONS OF CHAPTER SOLE BASIS FOR RE-
24 VIEW OF MILITARY COMMISSION PROCEDURES AND AC-
25 TIONS.--Except as otherwise provided in this chapter and
54
1 notwithstanding any other provision of law (including sec-
2 tion 2241 of title 28 or any other habeas corpus provi-
3 sion), no court, justice, or judge shall have jurisdiction to
4 hear or consider any claim or cause of action whatsoever,
5 including any action pending on or filed after the date of
6 enactment of this chapter, relating to the prosecution,
7 trial, or judgment of a military commission under this
8 chapter, including challenges to the lawfulness of proce-
9 dures of military commissions under this chapter.
10 ``SUBCHAPTER VII--PUNITIVE MATTERS
``Sec.
``950aa. Definitions; construction of certain offenses; common circumstances.
``950bb. Principals.
``950cc. Accessory after the fact.
``950dd. Conviction of lesser offenses.
``950ee. Attempts.
``950ff. Conspiracy.
``950gg. Solicitation.
``950hh. Murder of protected persons.
``950ii. Attacking civilians.
``950jj. Attacking civilian objects.
``950kk. Attacking protected property.
``950ll. Pillaging.
``950mm. Denying quarter.
``950nn. Taking hostages.
``950oo. Employing poison or similar weapons.
``950pp. Using protected persons as a shield.
``950qq. Using protected property as a shield.
``950rr. Torture.
``950ss. Cruel, unusual, or inhumane treatment or punishment.
``950tt. Intentionally causing serious bodily injury.
``950uu. Mutilating or maiming.
``950vv. Murder in violation of the law of war.
``950ww. Destruction of property in violation of the law of war.
``950xx. Using treachery or perfidy.
``950yy. Improperly using a flag of truce.
``950zz. Improperly using a distinctive emblem.
``950aaa. Intentionally mistreating a dead body.
``950bbb. Rape.
``950ccc. Hijacking or hazarding a vessel or aircraft.
``950ddd. Terrorism.
``950eee. Providing material support for terrorism.
``950fff. Wrongfully aiding the enemy.
55
``950ggg. Spying.
``950hhh. Contempt.
``950iii. Perjury and obstruction of justice.
1 ``§ 950aa. Definitions; construction of certain offenses;
2 common circumstances
3 ``(a) DEFINITIONS.--In this subchapter:
4 ``(1) The term `military objective' means com-
5 batants and those objects during an armed conflict
6 which, by their nature, location, purpose, or use, ef-
7 fectively contribute to the war-fighting or war-sus-
8 taining capability of an opposing force and whose
9 total or partial destruction, capture, or neutraliza-
10 tion would constitute a definite military advantage
11 to the attacker under the circumstances at the time
12 of an attack.
13 ``(2) The term `protected person' means any
14 person entitled to protection under one or more of
15 the Geneva Conventions, including civilians not tak-
16 ing an active part in hostilities, military personnel
17 placed out of combat by sickness, wounds, or deten-
18 tion, and military medical or religious personnel.
19 ``(3) The term `protected property' means any
20 property specifically protected by the law of war, in-
21 cluding buildings dedicated to religion, education,
22 art, science, or charitable purposes, historic monu-
23 ments, hospitals, and places where the sick and
24 wounded are collected, but only if and to the extent
56
1 such property is not being used for military purposes
2 or is not otherwise a military objective. The term in-
3 cludes objects properly identified by one of the dis-
4 tinctive emblems of the Geneva Conventions, but
5 does not include civilian property that is a military
6 objective.
7 ``(b) CONSTRUCTION OF CERTAIN OFFENSES.--The
8 intent required for offenses under sections 950hh, 950ii,
9 950jj, 950kk, and 950ss of this title precludes their appli-
10 cability with regard to collateral damage or to death, dam-
11 age, or injury incident to a lawful attack.
12 ``(c) COMMON CIRCUMSTANCES.--An offense speci-
13 fied in this subchapter is triable by military commission
14 under this chapter only if the offense is committed in the
15 context of and associated with armed conflict.
16 ``§ 950bb. Principals
17 ``Any person punishable under this chapter who--
18 ``(1) commits an offense punishable by this
19 chapter, or aids, abets, counsels, commands, or pro-
20 cures its commission; or
21 ``(2) causes an act to be done which if directly
22 performed by him would be punishable by this chap-
23 ter,
24 is a principal.
57
1 ``§ 950cc. Accessory after the fact
2 ``Any person subject to this chapter who, knowing
3 that an offense punishable by this chapter has been com-
4 mitted, receives, comforts, or assists the offender in order
5 to hinder or prevent his apprehension, trial, or punishment
6 shall be punished as a military commission under this
7 chapter may direct.
8 ``§ 950dd. Conviction of lesser offenses
9 ``An accused may be found guilty of an offense nec-
10 essarily included in the offense charged or of an attempt
11 to commit either the offense charged or an attempt to
12 commit either the offense charged or an offense nec-
13 essarily included therein.
14 ``§ 950ee. Attempts
15 ``(a) IN GENERAL.--Any person subject to this chap-
16 ter who attempts to commit any offense punishable by this
17 chapter shall be punished as a military commission under
18 this chapter may direct.
19 ``(b) SCOPE OF OFFENSE.--An act, done with spe-
20 cific intent to commit an offense under this chapter,
21 amounting to more than mere preparation and tending,
22 even though failing, to effect its commission, is an attempt
23 to commit that offense.
24 ``(c) EFFECT OF CONSUMMATION.--Any person sub-
25 ject to this chapter may be convicted of an attempt to com-
58
1 mit an offense although it appears on the trial that the
2 offense was consummated.
3 ``§ 950ff. Conspiracy
4 ``Any person subject to this chapter who conspires to
5 commit one or more substantive offenses triable by mili-
6 tary commission under this subchapter, and who know-
7 ingly does any overt act to effect the object of the con-
8 spiracy, shall be punished, if death results to one or more
9 of the victims, by death or such other punishment as a
10 military commission under this chapter may direct, and,
11 if death does not result to any of the victims, by such pun-
12 ishment, other than death, as a military commission under
13 this chapter may direct.
14 ``§ 950gg. Solicitation
15 ``Any person subject to this chapter who solicits or
16 advises another or others to commit one or more sub-
17 stantive offenses triable by military commission under this
18 chapter shall, if the offense solicited or advised is at-
19 tempted or committed, be punished with the punishment
20 provided for the commission of the offense, but, if the of-
21 fense solicited or advised is not committed or attempted,
22 he shall be punished as a military commission under this
23 chapter may direct.
59
1 ``§ 950hh. Murder of protected persons
2 ``Any person subject to this chapter who intentionally
3 kills one or more protected persons shall be punished by
4 death or such other punishment as a military commission
5 under this chapter may direct.
6 ``§ 950ii. Attacking civilians
7 ``Any person subject to this chapter who intentionally
8 engages in an attack upon a civilian population as such,
9 or individual civilians not taking active part in hostilities,
10 shall be punished, if death results to one or more of the
11 victims, by death or such other punishment as a military
12 commission under this chapter may direct, and, if death
13 does not result to any of the victims, by such punishment,
14 other than death, as a military commission under this
15 chapter may direct.
16 ``§ 950jj. Attacking civilian objects
17 ``Any person subject to this chapter who intentionally
18 engages in an attack upon a civilian object that is not a
19 military objective shall be punished as a military commis-
20 sion under this chapter may direct.
21 ``§ 950kk. Attacking protected property
22 ``Any person subject to this chapter who intentionally
23 engages in an attack upon protected property shall be pun-
24 ished as a military commission under this chapter may
25 direct.
60
1 ``§ 950ll. Pillaging
2 ``Any person subject to this chapter who intentionally
3 and in the absence of military necessity appropriates or
4 seizes property for private or personal use, without the
5 consent of a person with authority to permit such appro-
6 priation or seizure, shall be punished as a military com-
7 mission under this chapter may direct.
8 ``§ 950mm. Denying quarter
9 ``Any person subject to this chapter who, with effec-
10 tive command or control over subordinate groups, de-
11 clares, orders, or otherwise indicates to those groups that
12 there shall be no survivors or surrender accepted, with the
13 intent to threaten an adversary or to conduct hostilities
14 such that there would be no survivors or surrender accept-
15 ed, shall be punished as a military commission under this
16 chapter may direct.
17 ``§ 950nn. Taking hostages
18 ``Any person subject to this chapter who, having
19 knowingly seized or detained one or more persons, threat-
20 ens to kill, injure, or continue to detain such person or
21 persons with the intent of compelling any nation, person
22 other than the hostage, or group of persons to act or re-
23 frain from acting as an explicit or implicit condition for
24 the safety or release of such person or persons, shall be
25 punished, if death results to one or more of the victims,
26 by death or such other punishment as a military commis-
61
1 sion under this chapter may direct, and, if death does not
2 result to any of the victims, by such punishment, other
3 than death, as a military commission under this chapter
4 may direct.
5 ``§ 950oo. Employing poison or similar weapons
6 ``Any person subject to this chapter who inten-
7 tionally, as a method of warfare, employs a substance or
8 weapon that releases a substance that causes death or se-
9 rious and lasting damage to health in the ordinary course
10 of events, through its asphyxiating, bacteriological, or
11 toxic properties, shall be punished, if death results to one
12 or more of the victims, by death or such other punishment
13 as a military commission under this chapter may direct,
14 and, if death does not result to any of the victims, by such
15 punishment, other than death, as a military commission
16 under this chapter may direct.
17 ``§ 950pp. Using protected persons as a shield
18 ``Any person subject to this chapter who positions,
19 or otherwise takes advantage of, a protected person with
20 the intent to shield a military objective from attack. or
21 to shield, favor, or impede military operations, shall be
22 punished, if death results to one or more of the victims,
23 by death or such other punishment as a military commis-
24 sion under this chapter may direct, and, if death does not
25 result to any of the victims, by such punishment, other
62
1 than death, as a military commission under this chapter
2 may direct.
3 ``§ 950qq. Using protected property as a shield
4 ``Any person subject to this chapter who positions,
5 or otherwise takes advantage of the location of, protected
6 property with the intent to shield a military objective from
7 attack, or to shield, favor, or impede military operations,
8 shall be punished as a military commission under this
9 chapter may direct.
10 ``§ 950rr. Torture
11 ``(a) OFFENSE.--Any person subject to this chapter
12 who commits an act specifically intended to inflict severe
13 physical or mental pain or suffering (other than pain or
14 suffering incidental to lawful sanctions) upon another per-
15 son within his custody or physical control for the purpose
16 of obtaining information or a confession, punishment, in-
17 timidation, coercion, or any reason based on discrimina-
18 tion of any kind, shall be punished, if death results to one
19 or more of the victims, by death or such other punishment
20 as a military commission under this chapter may direct,
21 and, if death does not result to any of the victims, by such
22 punishment, other than death, as a military commission
23 under this chapter may direct.
24 ``(b) SEVERE MENTAL PAIN OR SUFFERING DE-
25 FINED.--In this section, the term `severe mental pain or
63
1 suffering' has the meaning given that term in section
2 2340(2) of title 18.
3 ``§ 950ss. Cruel, unusual, or inhumane treatment or
4 punishment
5 ``Any person subject to this chapter who subjects an-
6 other person in their custody or under their physical con-
7 trol, regardless of nationality or physical location, to cruel,
8 unusual, or inhumane treatment or punishment prohibited
9 by the Fifth, Eighth, and 14th Amendments to the Con-
10 stitution of the United States shall be punished, if death
11 results to the victim, by death or such other punishment
12 as a military commission under this chapter may direct,
13 and, if death does not result to the victim, by such punish-
14 ment, other than death, as a military commission under
15 this chapter may direct.
16 ``§ 950tt. Intentionally causing serious bodily injury
17 ``(a) OFFENSE.--Any person subject to this chapter
18 who intentionally causes serious bodily injury to one or
19 more persons, including lawful combatants, in violation of
20 the law of war shall be punished, if death results to one
21 or more of the victims, by death or such other punishment
22 as a military commission under this chapter may direct,
23 and, if death does not result to any of the victims, by such
24 punishment, other than death, as a military commission
25 under this chapter may direct.
64
1 ``(b) SERIOUS BODILY INJURY DEFINED.--In this
2 section, the term `serious bodily injury' means bodily in-
3 jury which involves--
4 ``(1) a substantial risk of death;
5 ``(2) extreme physical pain;
6 ``(3) protracted and obvious disfigurement; or
7 ``(4) protracted loss or impairment of the func-
8 tion of a bodily member, organ, or mental faculty.
9 ``§ 950uu. Mutilating or maiming
10 ``Any person subject to this chapter who intentionally
11 injures one or more protected persons by disfiguring the
12 person or persons by any mutilation of the person or per-
13 sons, or by permanently disabling any member, limb, or
14 organ of the body of the person or persons, without any
15 legitimate medical or dental purpose, shall be punished,
16 if death results to one or more of the victims, by death
17 or such other punishment as a military commission under
18 this chapter may direct, and, if death does not result to
19 any of the victims, by such punishment, other than death,
20 as a military commission under this chapter may direct.
21 ``§ 950vv. Murder in violation of the law of war
22 ``Any person subject to this chapter who intentionally
23 kills one or more persons, including lawful combatants, in
24 violation of the law of war shall be punished by death or
65
1 such other punishment as a military commission under
2 this chapter may direct.
3 ``§ 950ww. Destruction of property in violation of the
4 law of war
5 ``Any person subject to this chapter who intentionally
6 destroys property belonging to another person in violation
7 of the law of war shall punished as a military commission
8 under this chapter may direct.
9 ``§ 950xx. Using treachery or perfidy
10 ``Any person subject to this chapter who, after invit-
11 ing the confidence or belief of one or more persons that
12 they were entitled to, or obliged to accord, protection
13 under the law of war, intentionally makes use of that con-
14 fidence or belief in killing, injuring, or capturing such per-
15 son or persons shall be punished, if death results to one
16 or more of the victims, by death or such other punishment
17 as a military commission under this chapter may direct,
18 and, if death does not result to any of the victims, by such
19 punishment, other than death, as a military commission
20 under this chapter may direct.
21 ``§ 950yy. Improperly using a flag of truce
22 ``Any person subject to this chapter who uses a flag
23 of truce to feign an intention to negotiate, surrender, or
24 otherwise suspend hostilities when there is no such inten-
66
1 tion shall be punished as a military commission under this
2 chapter may direct.
3 ``§ 950zz. Improperly using a distinctive emblem
4 ``Any person subject to this chapter who intentionally
5 uses a distinctive emblem recognized by the law of war
6 for combatant purposes in a manner prohibited by the law
7 of war shall be punished as a military commission under
8 this chapter may direct.
9 ``§ 950aaa. Intentionally mistreating a dead body
10 ``Any person subject to this chapter who intentionally
11 mistreats the body of a dead person, without justification
12 by legitimate military necessary, shall be punished as a
13 military commission under this chapter may direct.
14 ``§ 950bbb. Rape
15 ``Any person subject to this chapter who forcibly or
16 with coercion or threat of force wrongfully invades the
17 body of a person by penetrating, however slightly, the anal
18 or genital opening of the victim with any part of the body
19 of the accused, or with any foreign object, shall be pun-
20 ished as a military commission under this chapter may
21 direct.
22 ``§ 950ccc. Hijacking or hazarding a vessel or aircraft
23 ``Any person subject to this chapter who intentionally
24 seizes, exercises unauthorized control over, or endangers
25 the safe navigation of a vessel or aircraft that is not a
67
1 legitimate military objective shall be punished, if death re-
2 sults to one or more of the victims, by death or such other
3 punishment as a military commission under this chapter
4 may direct, and, if death does not result to any of the
5 victims, by such punishment, other than death, as a mili-
6 tary commission under this chapter may direct.
7 ``§ 950ddd. Terrorism
8 ``Any person subject to this chapter who intentionally
9 kills or inflicts great bodily harm on one or more protected
10 persons, or intentionally engages in an act that evinces
11 a wanton disregard for human life, in a manner calculated
12 to influence or affect the conduct of government or civilian
13 population by intimidation or coercion, or to retaliate
14 against government conduct, shall be punished, if death
15 results to one or more of the victims, by death or such
16 other punishment as a military commission under this
17 chapter may direct, and, if death does not result to any
18 of the victims, by such punishment, other than death, as
19 a military commission under this chapter may direct.
20 ``§ 950eee. Providing material support for terrorism
21 ``(a) OFFENSE.--Any person subject to this chapter
22 who provides material support or resources, knowing or
23 intending that they are to be used in preparation for, or
24 in carrying out, an act of terrorism (as set forth in section
25 950ddd of this title), or who intentionally provides mate-
68
1 rial support or resources to an international terrorist orga-
2 nization engaged in hostilities against the United States,
3 knowing that such organization has engaged or engages
4 in terrorism (as so set forth), shall be punished as a mili-
5 tary commission under this chapter may direct.
6 ``(b) MATERIAL SUPPORT OR RESOURCES DE-
7 FINED.--In this section, the term `material support or re-
8 sources' has the meaning given that term in section
9 2339A(b) of title 18.
10 ``§ 950fff. Wrongfully aiding the enemy
11 ``Any person subject to this chapter who, in breach
12 of an allegiance or duty to the United States, knowingly
13 and intentionally aids an enemy of the United States, or
14 one of the co-belligerents of the enemy, shall be punished
15 as a military commission under this chapter may direct.
16 ``§ 950ggg. Spying
17 ``Any person subject to this chapter who, in violation
18 of the law of war and with intent or reason to believe that
19 it is to be used to the injury of the United States or to
20 the advantage of a foreign power, collects or attempts to
21 collect information by clandestine means or while acting
22 under false pretenses, for the purpose of conveying such
23 information to an enemy of the United States, or one of
24 the co-belligerents of the enemy, shall be punished by
69
1 death or such other punishment as a military commission
2 under this chapter may direct.
3 ``§ 950hhh. Contempt
4 ``A military commission under this chapter may pun-
5 ish for contempt any person who uses any menacing word,
6 sign, or gesture in its presence, or who disturbs its pro-
7 ceedings by any riot or disorder.
8 ``§ 950iii. Perjury and obstruction of justice
9 ``A military commission under this chapter may try
10 offenses and impose such punishment as the military com-
11 mission may direct for perjury, false testimony, or ob-
12 struction of justice related to the military commission.''.
13 (2) TABLES OF CHAPTERS AMENDMENTS.--The
14 tables of chapters at the beginning of subtitle A and
15 part II of subtitle A of title 10, United States Code,
16 are each amended by inserting after the item relat-
17 ing to chapter 47 the following new item:
``Chapter 47A. Military Commissions .................... 948a''.
18 (b) SUBMITTAL OF PROCEDURES TO CONGRESS.--
19 (1) SUBMITTAL OF PROCEDURES.--Not later
20 than 90 days after the date of the enactment of this
21 Act, the Secretary of Defense shall submit to the
22 Committees on Armed Services of the Senate and
23 the House of Representatives a report setting forth
24 the procedures for military commissions prescribed
70
1 under chapter 47A of title 10, United States Code
2 (as added by subsection (a)).
3 (2) SUBMITTAL OF MODIFICATIONS.--Not later
4 than 60 days before the date on which any proposed
5 modification of the procedures described in para-
6 graph (1) shall go into effect, the Secretary shall
7 submit to the committees of Congress referred to in
8 that paragraph a report describing such modifica-
9 tion.
10 SEC. 5. AMENDMENTS TO OTHER LAWS.
11 (a) DETAINEE TREATMENT ACT OF 2005.--Section
12 1004(b) of the Detainee Treatment Act of 2005 (title X
13 of Public Law 109148; 119 Stat. 2740; 42 U.S.C.
14 200dd1(b)) is amended--
15 (1) by striking ``may provide'' and inserting
16 ``shall provide'';
17 (2) by inserting ``or investigation'' after ``crimi-
18 nal prosecution''; and
19 (3) by inserting ``whether before United States
20 courts or agencies, foreign courts or agencies, or
21 international courts or agencies,'' after ``described in
22 that subsection,''.
23 (b) UNIFORM CODE OF MILITARY JUSTICE.--Chap-
24 ter 47 of title, 10, United States Code (the Uniform Code
25 of Military Justice), is amended as follows:
71
1 (1) Section 802 (article 2 of the Uniform Code
2 of Military Justice) is amended by adding at the end
3 the following new paragraph:
4 ``(13) Lawful enemy combatants (as that term
5 is defined in section 948a(3) of this title) who vio-
6 late the law of war.''.
7 (2) Section 821 (article 21 of the Uniform Code
8 of Military Justice) is amended by striking ``by stat-
9 ute or law of war''.
10 (3) Section 836(a) (article 36(a) of the Uniform
11 Code of Military Justice) is amended by inserting
12 ``(other than military commissions under chapter
13 47A of this title)'' after ``other military tribunals''.
14 (c) PUNITIVE ARTICLE OF CONSPIRACY.--Section
15 881 of title 10, United States Code (article 81 of the Uni-
16 form Code of Military Justice)), is amended--
17 (1) by inserting ``(a)'' before ``Any person''; and
18 (2) by adding at the end the following new sub-
19 section:
20 ``(b) Any person subject to this chapter or chapter
21 47A of this title who conspires with any other person to
22 commit an offense under the law of war, and who know-
23 ingly does an overt act to effect the object of the con-
24 spiracy, shall be punished, if death results to one or more
25 of the victims, by death or such other punishment as a
72
1 court-martial or military commission may direct, and, if
2 death does not result to any of the victims, by such pun-
3 ishment, other than death, as a court-martial or military
4 commission may direct.''.
5 (d) REVIEW OF JUDGMENTS OF MILITARY COMMIS-
6 SIONS.--
7 (1) REVIEW BY SUPREME COURT.--Section
8 1259 of title 28, United States Code, is amended by
9 adding at the end the following new paragraph:
10 ``(5) Cases tried by military commission and re-
11 viewed by the United States Court of Appeals for
12 the Armed Forces under section 950f of title 10.''.
13 (2) DETAINEE TREATMENT ACT OF 2005.--Sec-
14 tion 1005(e) of the Detainee Treatment Act of 2005
15 (title X of Public Law 109148; 119 Stat. 2740; 10
16 U.S.C. 801 note) is amended--
17 (A) in paragraphs (3) and (4), by striking
18 ``United States Court of Appeals for the Dis-
19 trict of Columbia Circuit'' each place it appears
20 and inserting ``United States Court of Appeals
21 for the Armed Forces''; and
22 (B) in paragraph (3)--
23 (i) in subparagraph (A), by striking
24 ``pursuant to Military Commission Order
25 No. 1. dated August 31, 2005 (or any suc-
73
1 cessor military order)'' and inserting ``by a
2 military commission under chapter 47A of
3 title 10, United States Code'';
4 (ii) by striking subparagraph (B) and
5 inserting the following new subparagraph
6 (B):
7 ``(ii) GRANT OF REVIEW.--Review
8 under this paragraph shall be as of right.'';
9 (iii) in subparagraph (C)--
10 (I) in clause (i)--
11 (aa) by striking ``pursuant
12 to the military order'' and insert-
13 ing ``by a military commission'';
14 and
15 (bb) by striking ``at Guanta-
16 namo Bay, Cuba''; and
17 (II) in clause (ii), by striking
18 ``pursuant to such military order'' and
19 inserting ``by the military commis-
20 sion''; and
21 (iv) in subparagraph (D)(i), by strik-
22 ing ``specified in the military order'' and
23 inserting ``specified for a military commis-
24 sion''.
74
1 SEC. 6. HABEAS CORPUS MATTERS.
2 (a) IN GENERAL.--Section 2241 of title 28, United
3 States Code, is amended--
4 (1) by striking subsection (e) (as added by sec-
5 tion 1005(e)(1) of Public Law 109148 (119 Stat.
6 2742)) and by striking subsection (e) (as added by
7 added by section 1405(e)(1) of Public Law 109163
8 (119 Stat. 3477)); and
9 (2) by adding at the end the following new sub-
10 section:
11 ``(e)(1) No court, justice, or judge shall have jurisdic-
12 tion to hear or consider an application for a writ of habeas
13 corpus filed by or on behalf of an alien detained outside
14 of the United States who--
15 ``(A) is currently in United States custody; or
16 ``(B) has been determined by the United States
17 to have been properly detained as an enemy combat-
18 ant.
19 ``(2) Except as provided in paragraphs (2) and (3)
20 of section 1005(e) of the Detainee Treatment Act of 2005
21 (10 U.S.C. 801 note), no court, justice, or judge shall have
22 jurisdiction to hear or consider any other action against
23 the United States or its agents relating to any aspect of
24 the detention, treatment, or trial of an alien detained out-
25 side of the United States who--
26 ``(A) is currently in United States custody; or
75
1 ``(B) has been determined by the United States
2 to have been properly detained as an enemy combat-
3 ant.
4 ``(3) In this subsection, the term `United States',
5 when used in a geographic sense, has the meaning given
6 that term in section 1005(g) of the Detainee Treatment
7 Act of 2005.''.
8 (b) EFFECTIVE DATE.--The amendments made by
9 subsection (a) shall take effect on the date of the enact-
10 ment of this Act, and shall apply to all cases, without ex-
11 ception, pending on or after the date of the enactment of
12 this Act which relate to any aspect of the detention, treat-
13 ment, or trial of an alien detained outside the United
14 States (as that term is defined in section 2241(e)(3) of
15 title 28, United States Code (as added by subsection (a))
16 since September 11, 2001.
17 SEC. 7. TREATY OBLIGATIONS NOT ESTABLISHING
18 GROUNDS FOR CERTAIN CLAIMS.
19 (a) IN GENERAL.--No person may invoke the Geneva
20 Conventions or any protocols thereto as an individually en-
21 forceable right in any civil action against an officer, em-
22 ployee, member of the Armed Forces or another agent of
23 the United States Government, or against the United
24 States, for the purpose of any claim for damages for
25 death, injury, or damage to property in any court of the
76
1 United States or its States or territories. This subsection
2 does not affect the obligations of the United States under
3 the Geneva Conventions.
4 (b) GENEVA CONVENTIONS DEFINED.--In this sec-
5 tion, the term ``Geneva conventions'' means--
6 (1) the Convention for the Amelioration of the
7 Condition of the Wounded and Sick in Armed
8 Forces in the Field, done at Geneva August 12,
9 1949 (6 UST 3114);
10 (2) the Convention for the Amelioration of the
11 Condition of the Wounded, Sick, and Shipwrecked
12 Members of the Armed Forces at Sea, done at Gene-
13 va August 12, 1949 (6 UST 3217);
14 (3) the Convention Relative to the Treatment of
15 Prisoners of War, done at Geneva August 12, 1949
16 (6 UST 3316); and
17 (4) the Convention Relative to the Protection of
18 Civilian Persons in Time of War, done at Geneva
19 August 12, 1949 (6 UST 3516).
20 SEC. 8. REVISION TO WAR CRIMES OFFENSE UNDER FED-
21 ERAL CRIMINAL CODE.
22 (a) IN GENERAL.--Section 2441 of title 18, United
23 States Code, is amended--
24 (1) in subsection (c), by striking paragraph (3)
25 and inserting the following new paragraph (3):
77
1 ``(3) which constitutes a grave breach of com-
2 mon Article 3 (as defined in subsection (d)) when
3 committed in the context of and in association with
4 an armed conflict not of an international character;
5 or''; and
6 (2) by adding at the end the following new sub-
7 section:
8 ``(d) COMMON ARTICLE 3 VIOLATIONS.--
9 ``(1) GRAVE BREACH OF COMMON ARTICLE 3.--
10 In subsection (c)(3), the term `grave breach of com-
11 mon Article 3' means any conduct (such conduct
12 constituting a grave breach of common Article 3 of
13 the international conventions done at Geneva August
14 12, 1949), as follows:
15 ``(A) TORTURE.--The act of a person who
16 commits, or conspires or attempts to commit,
17 an act specifically intended to inflict severe
18 physical or mental pain or suffering (other than
19 pain or suffering incidental to lawful sanctions)
20 upon another person within his custody or
21 physical control for the purpose of obtaining in-
22 formation or a confession, punishment, intimi-
23 dation, coercion, or any reason based on dis-
24 crimination of any kind.
78
1 ``(B) CRUEL, UNUSUAL, OR INHUMANE
2 TREATMENT OR PUNISHMENT.--The act of a
3 person who subjects another person in the cus-
4 tody or under the physical control of the United
5 States Government, regardless of nationality or
6 physical location, to cruel, unusual, or inhu-
7 mane treatment or punishment prohibited by
8 the Fifth, Eighth, and 14th Amendments to the
9 Constitution of the United States.
10 ``(C) PERFORMING BIOLOGICAL EXPERI-
11 MENTS.--The act of a person who subjects, or
12 conspires or attempts to subject, one or more
13 persons within his custody or physical control to
14 biological experiments without a legitimate med-
15 ical or dental purpose and in so doing endan-
16 gers the body or health of such person or per-
17 sons.
18 ``(D) MURDER.--The act of a person who
19 intentionally kills, or conspires or attempts to
20 kill, or kills whether intentionally or uninten-
21 tionally in the course of committing any other
22 offense under this section, one or more persons
23 taking no active part in hostilities, including
24 those placed out of active combat by sickness,
25 wounds, detention, or any other cause.
79
1 ``(E) MUTILATION OR MAIMING.--The act
2 of a person who intentionally injures, or con-
3 spires or attempts to injure, or injures whether
4 intentionally or unintentionally in the course of
5 committing any other offense under this sec-
6 tion, one or more persons taking no active part
7 in hostilities, including those placed out of ac-
8 tive combat by sickness, wounds, detention, or
9 any other cause, by disfiguring such person or
10 persons by any mutilation thereof or by perma-
11 nently disabling any member, limb, or organ of
12 the body of such person or persons, without any
13 legitimate medical or dental purpose.
14 ``(F) INTENTIONALLY CAUSING SERIOUS
15 BODILY INJURY.--The act of a person who in-
16 tentionally causes, or conspires or attempts to
17 cause, serious bodily injury to one or more per-
18 sons, including lawful combatants, in violation
19 of the law of war.
20 ``(G) RAPE.--The act of a person who
21 forcibly or with coercion or threat of force
22 wrongfully invades, or conspires or attempts to
23 invade, the body of a person by penetrating,
24 however slightly, the anal or genital opening of
80
1 the victim with any part of the body of the ac-
2 cused, or with any foreign object.
3 ``(H) SEXUAL ASSAULT OR ABUSE.--The
4 act of person who forcibly or with coercion or
5 threat of force engages, or conspires or at-
6 tempts to engage, in sexual contact with one or
7 more persons, or causes, or conspires or at-
8 tempts to cause, one or more persons to engage
9 in sexual contact.
10 ``(I) TAKING HOSTAGES.--The act of a
11 person who, having knowingly seized or de-
12 tained one or more persons, threatens to kill,
13 injure, or continue to detain such person or per-
14 sons with the intent of compelling any nation,
15 person other than the hostage, or group of per-
16 sons to act or refrain from acting as an explicit
17 or implicit condition for the safety or release of
18 such person or persons.
19 ``(2) DEFINITIONS.--In the case of an offense
20 under subsection (a) by reason of subsection
21 (c)(3)--
22 ``(A) the term `severe mental pain or suf-
23 fering' shall be applied for purposes of para-
24 graph (1)(A) in accordance with the meaning
25 given that term in section 2340(2) of this title;
81
1 ``(B) the term `serious bodily injury' shall
2 be applied for purposes of paragraph (1)(F) in
3 accordance with the meaning given that term in
4 section 113(b)(2) of this title; and
5 ``(C) the term `sexual contact' shall be ap-
6 plied for purposes of paragraph (1)(G) in ac-
7 cordance with the meaning given that term in
8 section 2246(3) of this title.
9 ``(3) INAPPLICABILITY OF CERTAIN PROVISIONS
10 WITH RESPECT TO COLLATERAL DAMAGE OR INCI-
11 DENT OF LAWFUL ATTACK.--The intent specified for
12 the conduct stated in subparagraphs (D), (E), and
13 (F) of paragraph (1) precludes the applicability of
14 those subparagraphs to an offense under subsection
15 (a) by reasons of subsection (c)(3) with respect to--
16 ``(A) collateral damage; or
17 ``(B) death, damage, or injury incident to
18 a lawful attack.
19 ``(4) INAPPLICABILITY OF TAKING HOSTAGES
20 TO PRISONER EXCHANGE.--Paragraph (1)(I) does
21 not apply to an offense under subsection (a) by rea-
22 son of subsection (c)(3) in the case of a prisoner ex-
23 change during wartime.''.
24 (b) CONSTRUCTION.--Such section is further amend-
25 ed by adding at the end the following new subsections:
82
1 ``(e) INAPPLICABILITY OF FOREIGN SOURCES OF
2 LAW IN INTERPRETATION.--No foreign source of law shall
3 be considered in defining or interpreting the obligations
4 of the United States under this title.
5 ``(f) NATURE OF CRIMINAL SANCTIONS.--The crimi-
6 nal sanctions in this section provide penal sanctions under
7 the domestic law of the United States for grave breaches
8 of the international conventions done at Geneva August
9 12, 1949. Such criminal sanctions do not alter the obliga-
10 tions of the United States under those international con-
11 ventions.''.
12 (c) PROTECTION OF CERTAIN UNITED STATES GOV-
13 ERNMENT PERSONNEL.--Such section is further amended
14 by adding at the end the following new subsection:
15 ``(g) PROTECTION OF CERTAIN UNITED STATES
16 GOVERNMENT PERSONNEL.--The provisions of section
17 1004 of the Detainee Treatment Act of 2005 (42 U.S.C.
18 2000dd1) shall apply with respect to any criminal pros-
19 ecution relating to the detention and interrogation of indi-
20 viduals described in such provisions that is grounded in
21 an offense under subsection (a) by reason of subsection
22 (c)(3) with respect to actions occurring between Sep-
23 tember 11, 2001, and December 30, 2005.''.
83
1 SEC. 9. DETENTION COVERED BY REVIEW OF DECISIONS
2 OF COMBATANT STATUS REVIEW TRIBUNALS
3 OF PROPRIETY OF DETENTION.
4 Section 1005(e)(2)(B)(i) of the Detainee Treatment
5 Act of 2005 (title X of Public Law 109148; 119 Stat.
6 2742; 10 U.S.C. 801 note) is amended by striking ``the
7 Department of Defense at Guantanamo Bay, Cuba'' and
8 inserting ``the United States''.
9 SEC. 10. SEVERABILITY.
10 If any provision of this Act or amendment made by
11 a provision of this Act, or the application of such provision
12 or amendment to any person or circumstance, is held to
13 be unconstitutional, the remainder of this Act and the
14 amendments made by this Act, and the application of such
15 provisions and amendments to any other person or cir-
16 cumstance, shall not be affected thereby.
S 3901 PCS
SEPTEMBER 14, 2006
Read twice and placed on the calendar
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