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.
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