No Easy Answers


Saturday, September 16, 2006

S.3861 : Military Tribunals [Frist]

                                                                                                II




                                                                                  Calendar No. 595
                  109TH CONGRESS
                                                      S. 3861
                     2D SESSION


                  To facilitate bringing to justice terrorists and other unlawful enemy combat-
                      ants through full and fair trials by military commissions, and for other
                      purposes.


                                       IN THE SENATE OF THE UNITED STATES
                                               SEPTEMBER 6, 2006

                    Mr. FRIST (for himself, Mr. MCCONNELL, and Mr. INHOFE) introduced the
                                   following bill; which was read the first time

                                               SEPTEMBER 8, 2006
                                Read the second time and placed on the calendar


                                                       A BILL

                  To facilitate bringing to justice terrorists and other unlawful
                      enemy combatants through full and fair trials by military
                      commissions, 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 ``Bringing Terrorists
                    5 to Justice Act of 2006''.


                               #(Star Print)
                                                       2
                    1     SEC. 2. FINDINGS.
                    2              Congress makes the following findings:
                    3                       (1) For more than 10 years, the al Qaeda ter-
                    4              rorist organization has waged an unlawful war of vi-
                    5              olence and terror against the United States and its
                    6              allies. Al Qaeda was involved in the bombing of the
                    7              World Trade Center in New York City in 1993, the
                    8              bombing of the United States Embassies in Kenya
                    9              and Tanzania in 1998, and the attack on the U.S.S.
                  10               Cole in Yemen in 2000. On September 11, 2001, al
                  11               Qaeda launched the most deadly foreign attack on
                  12               United States soil in history. Nineteen al Qaeda
                  13               operatives hijacked four commercial aircraft and pi-
                  14               loted them into the World Trade Center Towers in
                  15               New York City and the headquarters of the United
                  16               States Department of Defense at the Pentagon, and
                  17               downed United Airlines Flight 93. The attack de-
                  18               stroyed the Towers, severely damaged the Pentagon,
                  19               and resulted in the deaths of approximately 3,000
                  20               innocent people.
                  21                        (2) Following the attacks on the United States
                  22               on September 11th, Congress recognized the existing
                  23               hostilities with al Qaeda and affiliated terrorist orga-
                  24               nizations and, by the Authorization for the Use of
                  25               Military Force Joint Resolution (Public Law 107­
                  26               40), recognized that ``the President has authority



                                                          3
                    1              under the Constitution to take action to deter and
                    2              prevent acts of international terrorism against the
                    3              United States'' and authorized the President ``to use
                    4              all necessary and appropriate force against those na-
                    5              tions, organizations, or persons he determines
                    6              planned, authorized, committed, or aided the ter-
                    7              rorist attacks that occurred on September 11, 2001
                    8              . . . in order to prevent any future acts of inter-
                    9              national terrorism against the United States by such
                  10               nations, organizations or persons.''.
                  11                        (3) The President's authority to convene mili-
                  12               tary commissions arises from the Constitution's vest-
                  13               ing in the President of the executive power and the
                  14               power of Commander in Chief of the Armed Forces.
                  15               As the Supreme Court of the United States recog-
                  16               nized in Madsen v. Kinsella, 343 U.S. 341, 346­48
                  17               (1952), ``[s]ince our nation's earliest days, such
                  18               commissions have been constitutionally recognized
                  19               agencies for meeting many urgent governmental re-
                  20               sponsibilities related to war. . . . They have taken
                  21               many forms and borne many names. Neither their
                  22               procedure nor their jurisdiction has been prescribed
                  23               by statute. It has been adapted in each instance to
                  24               the need that called it forth.''.


                                                         4
                    1                       (4) In exercising the authority vested in the
                    2              President by the Constitution and laws of the
                    3              United States, including the Authorization for Use
                    4              of Military Force Joint Resolution, and in accord-
                    5              ance with the law of war, the President has detained
                    6              enemy combatants in the course of this armed con-
                    7              flict and issued the Military Order of November 13,
                    8              2001, to govern the ``Detention, Treatment, and
                    9              Trial of Certain Non-Citizens in the War Against
                  10               Terrorism''. This Order authorized the Secretary of
                  11               Defense to establish military commissions to try in-
                  12               dividuals subject to the Order for any offenses tri-
                  13               able by military commission that such individuals
                  14               are alleged to have committed.
                  15                        (5) The Supreme Court in Hamdan v. Rums-
                  16               feld, 126 S. Ct. 2749 (2006), held that the military
                  17               commissions established by the Department of De-
                  18               fense under the President's Military Order of No-
                  19               vember 13, 2001, were not consistent with certain
                  20               aspects of United States domestic law. The Congress
                  21               may by law, and does by enactment of this statute,
                  22               eliminate any deficiency of statutory authority to fa-
                  23               cilitate bringing terrorists with whom the United
                  24               States is engaged in armed conflict to justice for vio-
                  25               lations of the law of war and other offenses triable


                                                        5
                    1              by military commissions. The prosecution of such in-
                    2              dividuals by military commissions established and
                    3              conducted consistent with this Act fully complies
                    4              with the Constitution, the laws of the United States,
                    5              treaties to which the United States is a party, and
                    6              the law of war.
                    7                       (6) The use of military commissions is particu-
                    8              larly important in this context because other alter-
                    9              natives, such as the use of courts-martial, generally
                  10               are impracticable. The terrorists with whom the
                  11               United States is engaged in armed conflict have
                  12               demonstrated a commitment to the destruction of
                  13               the United States and its people, to the violation of
                  14               the law of war, and to the abuse of American legal
                  15               processes. In a time of ongoing armed conflict, it
                  16               generally is neither practicable nor appropriate for
                  17               combatants like al Qaeda terrorists to be tried be-
                  18               fore tribunals that include all of the procedures asso-
                  19               ciated with courts-martial.
                  20                        (7) Many procedures for courts-martial would
                  21               not be practicable in trying the unlawful enemy com-
                  22               batants for whom this Act provides for trial by mili-
                  23               tary commission. For instance, court martial pro-
                  24               ceedings would in certain circumstances--


                                                      6
                    1                                 (A) compel the Government to share classi-
                    2                       fied information with the accused, even though
                    3                       members of al Qaeda cannot be trusted with
                    4                       our Nation's secrets and it would not be con-
                    5                       sistent with the national security of the United
                    6                       States to provide them with access to classified
                    7                       information;
                    8                                 (B) exclude the use of hearsay evidence
                    9                       even though such evidence often will be the best
                  10                        and most reliable evidence that the accused has
                  11                        committed a war crime. For example, many wit-
                  12                        nesses in military commission trials are likely to
                  13                        be foreign nationals who are not amenable to
                  14                        process or may be precluded for national secu-
                  15                        rity reasons from entering the United States or
                  16                        Guantanamo Bay to testify. Other witnesses
                  17                        may be unavailable because of military neces-
                  18                        sity, incarceration, injury, or death. In short,
                  19                        applying the hearsay rules from the Manual for
                  20                        Courts-Martial or from the Federal Rules of
                  21                        Evidence would make it virtually impossible to
                  22                        bring terrorists to justice for their violations of
                  23                        the law of war;
                  24                                  (C) specify speedy trials and technical
                  25                        rules for sworn and authenticated statements


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                    1                       when, due to the exigencies of wartime, the
                    2                       United States cannot safely require members of
                    3                       the armed forces to gather evidence on the bat-
                    4                       tlefield, including civilian eyewitness testimony,
                    5                       as though they were police officers. Nor can the
                    6                       United States divert members from the front
                    7                       lines and their duty stations to attend military
                    8                       commission proceedings. Therefore, strict com-
                    9                       pliance with such rules for evidence gathered on
                  10                        the battlefield would be impracticable, given the
                  11                        preeminent focus on military operations and the
                  12                        chaotic nature of combat.
                  13                        (8) The exclusive judicial review for which this
                  14               Act, and the Detainee Treatment Act of 2005, pro-
                  15               vides is without precedent in the history of armed
                  16               conflicts involving the United States, exceeds the
                  17               scope of judicial review historically provided for by
                  18               military commissions, and is channeled in a manner
                  19               appropriately tailored to--
                  20                                  (A) the circumstances of the conflicts be-
                  21                        tween the United States and international ter-
                  22                        rorist organizations; and
                  23                                  (B) the need to ensure fair treatment of
                  24                        those detained as enemy combatants, to mini-
                  25                        mize the diversion of members of the armed


                                                       8
                    1                       forces from other wartime duties, and to protect
                    2                       the national security of the United States.
                    3                       (9) In early 2002, as memorialized in a memo-
                    4              randum dated February 7, 2002, the President de-
                    5              termined that common Article 3 of the Geneva Con-
                    6              ventions did not apply with respect to the United
                    7              States conflict with al Qaeda because al Qaeda was
                    8              not a party to those treaties and the conflict with al
                    9              Qaeda was an armed conflict of an international
                  10               character. That was the interpretation of the United
                  11               States prior to the Supreme Court's decision in
                  12               Hamdan on June 29, 2006. Hamdan's statement to
                  13               the contrary makes it appropriate to clarify the
                  14               standards imposed by common Article 3. This Act
                  15               makes clear that the prohibitions against cruel, in-
                  16               human, and degrading treatment found in the De-
                  17               tainee Treatment Act of 2005 fully satisfy the obli-
                  18               gations of the United States with respect to the
                  19               standards for detention and treatment established by
                  20               section 1 of common Article 3, except for those obli-
                  21               gations arising under paragraphs (b) and (d). In ad-
                  22               dition, the Act makes clear that the Geneva Conven-
                  23               tions are not a source of judicially enforceable indi-
                  24               vidual rights, thereby reaffirming that enforcement


                                                       9
                    1              of the obligations imposed by the Conventions is a
                    2              matter between the nations that are parties to them.
                    3     SEC. 3. AUTHORIZATION FOR MILITARY COMMISSIONS.
                    4              (a) IN GENERAL.--The President is authorized to es-
                    5 tablish military commissions for violations of the law of
                    6 war and other offenses triable by military commissions as
                    7 provided in section 4 of this Act (chapter 47A of title 10).
                    8              (b) CONSTRUCTION.--The authority granted in sub-
                    9 section (a) shall not be construed to limit the authority
                  10 of the President under the Constitution of the United
                  11 States or the laws thereof to establish military commis-
                  12 sions on the battlefield, in occupied territories, or in other
                  13 armed conflicts should circumstances so require.
                  14               (c) SCOPE OF PUNISHMENT AUTHORITY.--A military
                  15 commission established pursuant to subsection (a) shall
                  16 have authority to impose upon any person found guilty
                  17 after a proceeding under this Act a sentence that is appro-
                  18 priate to the offense or offenses for which there was a
                  19 finding of guilt, which sentence may include death where
                  20 authorized by this Act, imprisonment for life or a term
                  21 of years, payment of a fine or restitution, or such other
                  22 lawful punishment or condition of punishment as the com-
                  23 mission shall determine to be proper.
                  24               (d) EXECUTION OF PUNISHMENT.--The Secretary of
                  25 Defense shall be authorized to carry out a sentence of pun-


                                                      10
                    1 ishment decreed by a military commission pursuant to
                    2 subsection (a) in accordance with such procedures as the
                    3 Secretary may prescribe.
                    4              (e) ANNUAL REPORT ON TRIALS BY MILITARY COM-
                    5     MISSION.--
                    6                       (1) ANNUAL REPORT REQUIRED.--Not later
                    7              than December 31 each year, the Secretary of De-
                    8              fense shall submit to the Armed Services Commit-
                    9              tees of the House of Representatives and the Senate
                  10               an annual report on the conduct of trials by military
                  11               commissions established pursuant to subsection (a)
                  12               during such year.
                  13                        (2) FORM.--Each such report shall be sub-
                  14               mitted in unclassified form, with classified annex, if
                  15               necessary and consistent with national security.
                  16      SEC. 4. MILITARY COMMISSIONS.
                  17               (a) MILITARY COMMISSIONS.--
                  18                        (1) IN GENERAL.--Subtitle A of title 10,
                  19               United States Code, is amended by inserting after
                  20               chapter 47 the following new chapter:
                              ``CHAPTER 47A--MILITARY COMMISSIONS
                  21
                  22               ``SUBCHAPTER I--GENERAL PROVISIONS
                          ``Sec.
                          ``948a. Definitions.
                          ``948b. Military commissions generally.
                          ``948c. Persons subject to military commissions.
                          ``948d. Jurisdiction of military commissions.



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                    1 ``§ 948a. Definitions
                    2              ``In this chapter:
                    3                       ``(1) ALIEN.--The term `alien' means an indi-
                    4              vidual who is not a citizen of the United States.
                    5                       ``(2) CLASSIFIED INFORMATION.--The term
                    6              `classified information' means the following--
                    7                                 ``(A) Any information or material that has
                    8                       been determined by the United States Govern-
                    9                       ment pursuant to statute, Executive order, or
                  10                        regulation to require protection against unau-
                  11                        thorized disclosure for reasons of national secu-
                  12                        rity.
                  13                                  ``(B) Any restricted data, as that term is
                  14                        defined in section 11 y. of the Atomic Energy
                  15                        Act of 1954 (42 U.S.C. 2014(y)).
                  16                        ``(3)       COMMISSION.--The term `commission'
                  17               means a military commission established pursuant to
                  18               chapter 47A of title 10, United States Code.
                  19                        ``(4) CONVENING AUTHORITY.--The term `con-
                  20               vening authority' shall be the Secretary of Defense
                  21               or his designee.
                  22                        ``(5) LAWFUL ENEMY COMBATANT.--The term
                  23               `lawful enemy combatant' means an individual deter-
                  24               mined by or under the authority of the President or
                  25               Secretary of Defense (whether on an individualized
                  26               or collective basis) to be: (i) a member of the regular



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                    1              forces of a State party engaged in hostilities against
                    2              the United States or its co-belligerents; (ii) a mem-
                    3              ber of a militia, volunteer corps, or organized resist-
                    4              ance movement belonging to a State party engaged
                    5              in such hostilities, which are under responsible com-
                    6              mand, wear a fixed distinctive sign recognizable at
                    7              a distance, carry their arms openly, and abide by the
                    8              law of war; or (iii) a member of a regular armed
                    9              forces who professes allegiance to a government en-
                  10               gaged in such hostilities, but not recognized by the
                  11               United States.
                  12                        ``(6) SECRETARY.--The term `Secretary' means
                  13               the Secretary of Defense.
                  14                        ``(7) UNLAWFUL ENEMY COMBATANT.--The
                  15               term `unlawful enemy combatant' means an indi-
                  16               vidual determined by or under the authority of the
                  17               President or the Secretary of Defense--
                  18                                  ``(A) to be part of or affiliated with a force
                  19                        or organization--including but not limited to al
                  20                        Qaeda, the Taliban, any international terrorist
                  21                        organization, or associated forces--engaged in
                  22                        hostilities against the United States or its co-
                  23                        belligerents; in violation of the law of war;
                  24                                  ``(B) to have committed a hostile act in aid
                  25                        of such a force or organization so engaged; or


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                    1                                 ``(C) to have supported hostilities in aid of
                    2                       such a force or organization so engaged.
                    3                       ``This definition includes any individual deter-
                    4              mined by a Combatant Status Review Tribunal, be-
                    5              fore the effective date of this Act, to have been prop-
                    6              erly detained as an enemy combatant, but excludes
                    7              any alien determined by the President or the Sec-
                    8              retary of Defense (whether on an individualized or
                    9              collective basis), or by any competent tribunal estab-
                  10               lished under their authority, to be (i) a lawful enemy
                  11               combatant (including a prisoner of war), or (ii) a
                  12               protected person whose trial by these military com-
                  13               missions would be inconsistent with Articles 64­76
                  14               of the Geneva Convention Relative to the Protection
                  15               of Civilian Persons in Time of War of August 12,
                  16               1949. For purposes of this section, the term ``pro-
                  17               tected person'' refers to the category of persons de-
                  18               scribed in Article 4 of the Geneva Convention Rel-
                  19               ative to the Protection of Civilian Persons in Time
                  20               of War of August 12, 1949.
                  21                        ``(8) GENEVA CONVENTIONS.--The term `Gene-
                  22               va Conventions' means the international conventions
                  23               signed at Geneva on August 12, 1949, including
                  24               common Article 3.



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                    1 ``§ 948b. Military commissions generally
                    2              ``(a) PURPOSE.--This chapter codifies and estab-
                    3 lishes procedures governing the use of military commis-
                    4 sions to try unlawful enemy combatants for violations of
                    5 the law of war and other offenses triable by military com-
                    6 missions. Although military commissions traditionally
                    7 have been constituted by order of the President, the deci-
                    8 sion of the Supreme Court in Hamdan v. Rumsfeld makes
                    9 it both necessary and appropriate to codify procedures for
                  10 military commissions as set forth herein.
                  11               ``(b) RULE OF CONSTRUCTION.--The procedures for
                  12 military commissions set forth in this chapter are modeled
                  13 after the procedures established for courts-martial in the
                  14 Uniform Code of Military Justice. However, it would be
                  15 neither desirable nor practicable to try unlawful enemy
                  16 combatants by court-martial procedures. The trial of such
                  17 persons by military commission presents new challenges
                  18 that require that interpretations of this Act not be unduly
                  19 influenced by the rules and procedures developed for
                  20 courts-martial. Therefore, no construction or application
                  21 of chapter 47 of this title shall be binding in the construc-
                  22 tion or application of this chapter.
                  23               ``(c) Alien unlawful enemy combatants may be tried
                  24 for violations of the law of war and other offenses triable
                  25 by military commissions committed against the United


                                                      15
                    1 States or its co-belligerents before, on, or after September
                    2 11, 2001.
                    3              ``(d) A military commission established under this
                    4 chapter is a regularly constituted court, affording all the
                    5 necessary `judicial guarantees which are recognized as in-
                    6 dispensable by civilized peoples' for purposes of common
                    7 Article 3 of the Geneva Conventions.
                    8 ``§ 948c. Persons subject to military commissions
                    9              ``Alien unlawful enemy combatants, as defined in sec-
                  10 tion 948a of this title, shall be subject to trial by military
                  11 commissions as set forth in this chapter.
                  12 ``§ 948d. Jurisdiction of military commissions
                  13               ``(a) Military commissions shall have jurisdiction to
                  14 try any offense made punishable under this chapter, when
                  15 committed by an alien unlawful enemy combatant. Mili-
                  16 tary commissions shall not have jurisdiction over lawful
                  17 enemy combatants. Lawful enemy combatants who violate
                  18 the law of war are subject to chapter 47 of Title 10,
                  19 United States Code. Courts-martial established under
                  20 chapter 47 shall have jurisdiction to try a lawful enemy
                  21 combatant for any offense made punishable under this
                  22 chapter.
                  23               ``(b) Military commissions shall not have jurisdiction
                  24 over any individual determined by the President or the
                  25 Secretary of Defense (whether on an individualized or col-


                                                      16
                    1 lective basis), or by any competent tribunal established
                    2 under their authority, to be a `protected person' whose
                    3 trial by these military commissions would be inconsistent
                    4 with Articles 64­76 of the Geneva Convention Relative to
                    5 the Protection of Civilian Persons in Time of War of Au-
                    6 gust 12, 1949. Such persons shall be tried in courts-mar-
                    7 tial or other tribunals consistent with their status under
                    8 the Geneva Conventions. For purposes of this section, the
                    9 term `protected person' refers to the category of persons
                  10 described in Article 4 of the Geneva Convention Relative
                  11 to the Protected of Civilian Persons in Time of War of
                  12 August 12, 1949.
                  13               ``(c) Military commissions may, under such limita-
                  14 tions as the Secretary of Defense may prescribe, adjudge
                  15 any punishment not forbidden by this chapter, including
                  16 the penalty of death where authorized by this chapter.
                  17          ``SUBCHAPTER II--COMPOSITION OF MILITARY
                  18                           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.

                  19 ``§ 948h. Who may convene military commissions
                  20               ``(a) The Secretary may issue orders convening mili-
                  21 tary commissions to try individuals under this chapter.


                                                      17
                    1              ``(b) The Secretary may delegate his authority to con-
                    2 vene military commissions or to promulgate any regula-
                    3 tions under this chapter.
                    4 ``§ 948i. Who may serve on military commissions
                    5              ``(a) IN GENERAL.--Any commissioned officer of the
                    6 United States armed forces on active duty is eligible to
                    7 serve on a military commission. Eligible commissioned of-
                    8 ficers shall include, without limitation, reserve personnel
                    9 on active duty, National Guard personnel on active duty
                  10 in Federal service, and retired personnel recalled to active
                  11 duty.
                  12               ``(b) DETAIL OF MEMBERS.--When convening a com-
                  13 mission, the convening authority shall detail as members
                  14 thereof such members of the armed forces as, in his opin-
                  15 ion, are fully qualified for the duty by reason of age, edu-
                  16 cation, training, experience, length of service, and judicial
                  17 temperament. No member of an armed force shall be eligi-
                  18 ble to serve as a member of a commission when he is the
                  19 accuser or a witness for the prosecution or has acted as
                  20 an investigator or counsel in the same case.
                  21               ``(c) EXCUSE OF MEMBERS.--Before a commission is
                  22 assembled for the trial of a case, the convening authority
                  23 may excuse a member of the commission from partici-
                  24 pating in the case.


                                                     18
                    1 ``§ 948j. Military judge of a military commission
                    2              ``(a) DETAIL OF A MILITARY JUDGE.--A military
                    3 judge shall be detailed to each commission. The Secretary
                    4 shall prescribe regulations providing for the manner in
                    5 which military judges are detailed to such commissions.
                    6 The military judge shall preside over each commission to
                    7 which he has been detailed. The convening authority shall
                    8 not prepare or review any report concerning the effective-
                    9 ness, fitness, or efficiency of the military judge so detailed
                  10 relating to his performance duty as a military judge.
                  11               ``(b) ELIGIBILITY.--A military judge shall be a com-
                  12 missioned officer of the armed forces who is a member
                  13 of the bar of a Federal court or a member of the bar of
                  14 the highest court of a State, and who is certified to be
                  15 qualified for duty as a military judge by the Judge Advo-
                  16 cate General of the armed force of which such military
                  17 judge is a member. A commissioned officer who is certified
                  18 to be qualified for duty as a military judge of a commis-
                  19 sion may perform such other duties as are assigned to him
                  20 by or with the approval of that Judge Advocate General
                  21 or his designee.
                  22               ``(c) INELIGIBILITY OF CERTAIN INDIVIDUALS.--No
                  23 person is eligible to act as military judge in any case in
                  24 which he is the accuser or a witness or has acted as inves-
                  25 tigator or a counsel in the same case.


                                                    19
                    1              ``(d) CONSULTATION WITH MEMBERS; INELIGI-
                    2     BILITY TO VOTE.--Except as provided in section 949d of
                    3 this title, the military judge detailed to the commission
                    4 may not consult with the members of the commission ex-
                    5 cept in the presence of the accused, trial counsel, and de-
                    6 fense counsel, nor may he vote with the members of the
                    7 commission.
                    8 ``§ 948k. Detail of trial counsel and defense counsel
                    9              ``(a) DETAIL OF COUNSEL GENERALLY.--
                  10                         ``(1) Trial counsel and military defense counsel
                  11               shall be detailed for each commission.
                  12                         ``(2) Assistant trial counsel and assistant and
                  13               associate military defense counsel may be detailed
                  14               for each commission.
                  15                         ``(3) Military defense counsel shall be detailed
                  16               as soon as practicable after the swearing of charges
                  17               against the person accused.
                  18                         ``(4) The Secretary shall prescribe regulations
                  19               providing for the manner in which counsel are de-
                  20               tailed for military commissions and for the persons
                  21               who are authorized to detail counsel for such mili-
                  22               tary commissions.
                  23               ``(b) TRIAL COUNSEL.--Subject to subsection (d),
                  24 trial counsel detailed for a military commission under this
                  25 chapter must be--


                                                   20
                    1                       ``(1) a judge advocate (as that term is defined
                    2              in section 801 of this title) who is--
                    3                                 ``(A) a graduate of an accredited law
                    4                       school or is a member of the bar of a Federal
                    5                       court or of the highest court of a State; and
                    6                                 ``(B) certified as competent to perform du-
                    7                       ties as trial counsel before general courts-mar-
                    8                       tial by the Judge Advocate General of the
                    9                       armed force of which he is a member; or
                  10                        ``(2) a civilian who is--
                  11                                  ``(A) a member of the bar of a Federal
                  12                        court or of the highest court of a State; and
                  13                                  ``(B) otherwise qualified to practice before
                  14                        the commission pursuant to regulations pre-
                  15                        scribed by the Secretary.
                  16               ``(c) MILITARY DEFENSE COUNSEL.--Subject to sub-
                  17 section (d), military defense counsel detailed for a military
                  18 commission under this chapter must be a judge advocate
                  19 (as so defined) who is--
                  20                        ``(1) a graduate of an accredited law school or
                  21               a member of the bar of a Federal court or of the
                  22               highest court of a State; and
                  23                        ``(2) certified as competent to perform duties as
                  24               defense counsel before general courts-martial by the



                                                   21
                    1              Judge Advocate General of the armed force of which
                    2              he is a member.
                    3              ``(d) INELIGIBILITY OF CERTAIN INDIVIDUALS.--No
                    4 person who has acted as an investigator, military judge,
                    5 or member of a military commission under this chapter
                    6 may act later as trial counselor or defense counsel in the
                    7 same case. No person who has acted for the prosecution
                    8 may act later in the same case for the defense, nor may
                    9 any person who has acted for the defense act later in the
                  10 same case for the prosecution.
                  11 ``§ 948l. Detail or employment of reporters and inter-
                  12                             preters

                  13               ``(a) COURT REPORTERS.--Under such regulations
                  14 as the Secretary may prescribe, the convening authority
                  15 of a military commission shall detail or employ qualified
                  16 court reporters, who shall record the proceedings of and
                  17 testimony taken before that commission.
                  18               ``(b) INTERPRETERS.--Under like regulations the
                  19 convening authority may detail or employ interpreters who
                  20 shall interpret for the commission, and, as necessary, for
                  21 trial counsel and defense counsel.
                  22               ``(c) TRANSCRIPT; RECORD.--The transcript shall be
                  23 under the control of the convening authority, which is re-
                  24 sponsible for preparing the record of the proceedings.



                                                    22
                    1 ``§ 948m. Number of members; excuse of members; ab-
                    2                            sent and additional members
                    3              ``(a) NUMBER OF MEMBERS.--(1) A military com-
                    4 mission under this chapter shall, except as provided in
                    5 paragraph (2), have at least five members.
                    6              ``(2) In a case in which the death penalty is sought,
                    7 the military commission shall have the number of members
                    8 prescribed by section 949m(c) of this title.
                    9              ``(b) EXCUSE OF MEMBERS.--No member of a mili-
                  10 tary commission may be absent or excused after the com-
                  11 mission has been assembled for the trial of the accused
                  12 unless excused--
                  13                        ``(1) as a result of challenge;
                  14                        ``(2) by the military judge for physical disability
                  15               or other good cause; or
                  16                        ``(3) by order of the convening authority for
                  17               good cause.
                  18               ``(c) ABSENT AND ADDITIONAL MEMBERS.--When-
                  19 ever a military commission is reduced below the requisite
                  20 number of members, the trial may not proceed unless the
                  21 convening authority details new members sufficient to pro-
                  22 vide not less than the requisite number. The trial may pro-
                  23 ceed with the new members present after the recorded evi-
                  24 dence previously introduced before the members of the
                  25 commission has been read to the commission in the pres-


                                                     23
                    1 ence of the military judge, the accused (except as provided
                    2 by section 949d of this title), and counsel for both sides.
                    3          ``SUBCHAPTER III--PRE-TRIAL PROCEDURE
                          ``Sec.
                          ``948q. Charges and specifications.
                          ``948r. Compulsory self-incrimination prohibited; statements obtained by tor-
                                            ture.
                          ``948s. Service of charges.
                    4 ``§ 948q. Charges and specifications
                    5              ``(a) CHARGES AND SPECIFICATIONS.--Charges and
                    6 specifications against an accused shall be signed by a per-
                    7 son subject to chapter 47 of this title under oath before
                    8 a commissioned officer of the armed forces authorized to
                    9 administer oaths and shall state--
                  10                        ``(1) that the signer has personal knowledge of,
                  11               or reason to believe, the matters set forth therein;
                  12               and
                  13                        ``(2) that they are true in fact to the best of his
                  14               knowledge and belief.
                  15               ``(b) NOTICE TO ACCUSED.-- Upon the swearing of
                  16 the charges and specifications in accordance with sub-
                  17 section (a), the accused shall be informed of the charges
                  18 and specifications against him as soon as practicable.
                  19 ``§ 948r. Compulsory self-incrimination prohibited;
                  20                             statements obtained by torture

                  21               ``(a) IN GENERAL.--No person shall be required to
                  22 testify against himself at a commission proceeding.


                                                     24
                    1              ``(b) STATEMENTS OBTAINED BY TORTURE.--A
                    2 statement obtained by use of torture, as defined in 18
                    3 U.S.C. 2340, whether or not under color of law, shall not
                    4 be admissible against the accused, except against a person
                    5 accused of torture as evidence the statement was made.
                    6              ``(c) STATEMENTS NOT OBTAINED BY TORTURE.--
                    7 No otherwise admissible statement may be received in evi-
                    8 dence, including statements allegedly obtained by coercion,
                    9 if the military judge finds that the circumstances under
                  10 which the statement was made render it unreliable or lack-
                  11 ing in probative value.
                  12 ``§ 948s. Service of charges
                  13               ``The trial counsel assigned to the case shall cause
                  14 to be served upon the accused and counsel a copy of the
                  15 charges upon which trial is to be had in English and, if
                  16 appropriate, in another language that the accused under-
                  17 stands, sufficiently in advance of trial to prepare a de-
                  18 fense.
                  19                 ``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.


                                                     25
                          ``949m. Number of votes required.
                          ``949n. Military commission to announce action.
                          ``949o. Record of trial.

                    1 ``§ 949a. Rules
                    2              ``(a) PROCEDURES.--Pretrial, trial, and post-trial
                    3 procedures, including elements and modes of proof, for
                    4 cases triable by military commission under this chapter
                    5 shall be prescribed by the Secretary, but may not be con-
                    6 trary to or inconsistent with this chapter.
                    7              ``(b) RULES OF EVIDENCE.--Subject to such excep-
                    8 tions and limitations as the Secretary may provide by reg-
                    9 ulation, evidence in a military commission shall be admis-
                  10 sible if the military judge determines that the evidence
                  11 would have probative value to a reasonable person.
                  12               ``(c) HEARSAY EVIDENCE.--Hearsay evidence is ad-
                  13 missible, unless the military judge finds that the cir-
                  14 cumstances render it unreliable or lacking in probative
                  15 value, provided that the proponent of the evidence makes
                  16 the evidence known to the adverse party in advance of trial
                  17 or hearing.
                  18               ``The military judge shall exclude any evidence the
                  19 probative value of which is substantially outweighed by the
                  20 danger of unfair prejudice, confusion of the issues, or mis-
                  21 leading the members of the commission, or by consider-
                  22 ations of undue delay, waste of time, or needless presen-
                  23 tation of cumulative evidence.



                                                    26
                    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 commission or any member, mili-
                    6 tary judge, or counsel thereof, with respect to the findings
                    7 or sentence adjudged by the commission, or with respect
                    8 to any other exercises of its or his functions in the conduct
                    9 of the proceedings.
                  10               ``(2) No person may attempt to coerce or, by any un-
                  11 authorized means, influence the action of a commission
                  12 or any member thereof, in reaching the findings or sen-
                  13 tence in any case, or the action of any convening, approv-
                  14 ing, or reviewing authority with respect to his judicial acts.
                  15               ``(3) The foregoing provisions of this subsection shall
                  16 not apply with respect to--
                  17                        ``(A) general instructional or informational
                  18               courses in military justice if such courses are de-
                  19               signed solely for the purpose of instructing members
                  20               of a command in the substantive and procedural as-
                  21               pects of military commissions; or
                  22                        ``(B) statements and instructions given in open
                  23               proceedings by the military judge or counsel.
                  24               ``(b) PROHIBITION ON CONSIDERATION OF ACTIONS
                  25      ON COMMISSION IN EVALUATION OF FITNESS.--In the
                  26 preparation of an effectiveness, fitness, or efficiency report


                                                    27
                    1 or any other report or document used in whole or in part
                    2 for the purpose of determining whether a commissioned
                    3 officer of the armed forces is qualified to be advanced, in
                    4 grade, or in determining the assignment or transfer of any
                    5 such officer or in determining whether any such officer
                    6 should be retained on active duty, no person may--
                    7                       ``(1) consider or evaluate the performance of
                    8              duty of any member of a military commission under
                    9              this chapter; or
                  10                        ``(2) give a less favorable rating or evaluation
                  11               to any commissioned officer because of the zeal with
                  12               which such officer, in acting as counsel, represented
                  13               any accused before a military commission under this
                  14               chapter.
                  15 ``§ 949c. Duties of trial counsel and defense counsel
                  16               ``(a) TRIAL COUNSEL.--The trial counsel of a mili-
                  17 tary commission shall prosecute in the name of the United
                  18 States.
                  19               ``(b) DEFENSE COUNSEL.--(1) The accused shall be
                  20 represented in his defense before a military commission
                  21 as provided in this subsection.
                  22               ``(2) The accused shall be represented by military
                  23 counsel detailed under section 948k of this title.
                  24               ``(3) The accused may be represented by civilian
                  25 counsel if retained by him, provided that civilian counsel--


                                                    28
                    1                       ``(A) is a United States citizen;
                    2                       ``(B) is admitted to the practice of law in a
                    3              State, district, territory, or possession of the United
                    4              States, or before a Federal court;
                    5                       ``(C) has not been the subject of any sanction
                    6              of disciplinary action by any court, bar, or other
                    7              competent governmental authority for relevant mis-
                    8              conduct;
                    9                       ``(D) has been determined to be eligible for ac-
                  10               cess to information classified at the level Secret or
                  11               higher; and
                  12                        ``(E) has signed a written agreement to comply
                  13               with all applicable regulations or instructions for
                  14               counsel, including any rules of court for conduct
                  15               during the proceedings.
                  16               ``Civilian defense counsel shall protect any classified
                  17 information received during the course of their representa-
                  18 tion of the accused in accordance with all applicable law
                  19 governing the protection of classified information, and
                  20 shall not divulge such information to any person not au-
                  21 thorized to receive it.
                  22               ``(4) If the accused is represented by civilian counsel,
                  23 military counsel detailed shall act as associate counsel.
                  24               ``(5) The accused is not entitled to be represented by
                  25 more than one military counsel. However, the person au-


                                                     29
                    1 thorized under regulations prescribed under section 948k
                    2 of this title to detail counsel in his sole discretion may
                    3 detail additional military counsel.
                    4              ``(6) Defense counsel may cross-examine each witness
                    5 for the prosecution who testifies before the commission.
                    6 ``§ 949d. Sessions
                    7              ``(a) SESSIONS WITHOUT PRESENCE OF MEM-
                    8     BERS.--(1) At any time after the service of charges which
                    9 have been referred for trial by military commission, the
                  10 military judge may call the commission into session with-
                  11 out the presence of the members for the purpose of--
                  12                        ``(A) hearing and determining motions raising
                  13               defenses or objections which are capable of deter-
                  14               mination without trial of the issues raised by a plea
                  15               of not guilty;
                  16                        ``(B) hearing and ruling upon any matter which
                  17               may be ruled upon by the military judge under this
                  18               chapter, whether or not the matter is appropriate for
                  19               later consideration or decision by the members of
                  20               the commission;
                  21                        ``(C) if permitted by regulations of the Sec-
                  22               retary, receiving the pleas of the accused; and
                  23                        ``(D) performing any other procedural function
                  24               which may be performed by the military judge under
                  25               this chapter or under rules prescribed pursuant to


                                                     30
                    1              section 949a of this title and which does not require
                    2              the presence of the members of the commission.
                    3              ``(2) Except as provided in subsection (e), any pro-
                    4 ceedings under paragraph (1) shall be conducted in the
                    5 presence of the accused, defense counsel, and trial counsel,
                    6 and shall be made part of the record.
                    7              ``(b) PROCEEDINGS IN PRESENCE OF ACCUSED.--
                    8 Except as provided in subsections (c) and ( e), all pro-
                    9 ceedings of a military commission under this chapter shall
                  10 be in the presence of the accused, defense counsel, and
                  11 trial counsel, and shall be made a part of the record.
                  12               ``(c) DELIBERATIONS OR VOTE OF MEMBERS.--
                  13 When the members of the commission deliberate or vote,
                  14 only the members may be present.
                  15               ``(d) PUBLIC PROCEEDINGS.--(1) The military com-
                  16 mission shall hold open and public proceedings.
                  17               ``(2) The military judge may close to the public all
                  18 or a part of the proceedings of a military commission
                  19 under this chapter only upon making a specific finding
                  20 that such closure is necessary to--
                  21                        ``(A) protect information the disclosure of which
                  22               could reasonably be expected to cause identifiable
                  23               damage to the public interest or the national secu-
                  24               rity, including intelligence or law enforcement
                  25               sources, methods, or activities; or


                                                     31
                    1                       ``(B) ensure the physical safety of individuals.
                    2              ``(e) LIMITED EXCLUSION OF THE ACCUSED FOR
                    3     THE PROTECTION OF CLASSIFIED INFORMATION.--(1)
                    4 The military judge may, subject to the provisions of this
                    5 subsection, permit the admission in a military commission
                    6 under this chapter of classified information outside the
                    7 presence of the accused.
                    8              ``(2) The military judge shall not exclude the accused
                    9 from any portion of the proceeding except upon a specific
                  10 finding that extraordinary circumstances exist such that--
                  11                        ``(A) the exclusion of the accused--
                  12                                  ``(i) is necessary to protect classified infor-
                  13                        mation the disclosure of which to the accused
                  14                        could reasonably be expected to cause identifi-
                  15                        able damage to the national security, including
                  16                        intelligence or law enforcement sources, meth-
                  17                        ods, or activities; or
                  18                                  ``(ii) is necessary to ensure the physical
                  19                        safety of individuals; or
                  20                                  ``(iii) is necessary to prevent disruption of
                  21                        the proceedings by the accused; and
                  22                        ``(B) the exclusion of the accused--
                  23                                  ``(i) is no broader than necessary; and
                  24                                  ``(ii) will not deprive the accused of a full
                  25                        and fair trial.


                                                      32
                    1              ``(3)(A) A finding under paragraph (2) may be based
                    2 upon a presentation, including an ex parte or in camera
                    3 presentation, by either trial counselor defense counsel.
                    4              ``(B) Before trial counsel may make a presentation
                    5 described in subparagraph (A) requesting the admission
                    6 of classified evidence outside the presence of the accused,
                    7 the head of the executive or military department or gov-
                    8 ernmental agency which has control over the matter (after
                    9 personal consideration by that officer) shall certify in writ-
                  10 ing to the military judge that--
                  11                        ``(i) the disclosure of such classified information
                  12               to the accused could reasonably be expected to prej-
                  13               udice the national security; and
                  14                        ``(ii) such evidence has been declassified to the
                  15               maximum extent possible, consistent with the re-
                  16               quirements of national security.
                  17               ``(4)(A) No evidence shall be admitted if the accused
                  18 is not present for its admission or the evidence is not oth-
                  19 erwise provided to the accused, unless the evidence is clas-
                  20 sified information and the military judge makes a specific
                  21 finding that--
                  22                        ``(i) consideration of the evidence by the com-
                  23               mission, without the presence of the accused, is war-
                  24               ranted; and



                                                      33
                    1                       ``(ii) admission of an unclassified summary or
                    2              redacted version of that evidence would not be an
                    3              adequate substitute and, in the case of testimony, al-
                    4              ternative methods to obscure the identity of the wit-
                    5              ness are not adequate; and
                    6                       ``(iii) admission of the evidence would not de-
                    7              prive the accused of a full and fair trial.
                    8              ``(B) If the accused is excluded from a portion of the
                    9 proceeding, the accused shall be provided with a redacted
                  10 transcript of the proceeding and, to the extent practicable,
                  11 an unclassified summary of any evidence introduced.
                  12 Under no circumstances shall such a summary or redacted
                  13 transcript compromise the interests warranting the exclu-
                  14 sion of the accused under this subsection.
                  15               ``(5)(A) Military defense counsel shall be present and
                  16 able to participate in all trial proceedings, and shall be
                  17 given access to all evidence admitted under subparagraph
                  18 (4).
                  19               ``(B) Civilian defense counsel shall be permitted to
                  20 be present and to participate in all trial proceedings, and
                  21 shall be given access to evidence admitted under sub-para-
                  22 graph (4), provided that civilian defense counsel has ob-
                  23 tained the necessary security clearances and that such
                  24 presence and access are consistent with regulations that



                                                       34
                    1 the Secretary may prescribe to protect classified informa-
                    2 tion.
                    3              ``(C) Notwithstanding any other provision of law, any
                    4 defense counsel who receives classified information admit-
                    5 ted pursuant to subparagraph (4) shall not be obligated
                    6 to, and may not, disclose that evidence to the accused.
                    7              ``(f) ADMISSION OF STATEMENTS OF ACCUSED.--(1)
                    8 Notwithstanding any other provision in this chapter, no
                    9 statement made by the accused during an interrogation,
                  10 even if otherwise classified, may be admitted into evidence
                  11 in a military commission under this chapter unless the ac-
                  12 cused is present for its admission or the evidence is other-
                  13 wise provided to the accused.
                  14               ``(2) For purposes of this subsection, a `statement'
                  15 is a statement communicated knowingly and directly by
                  16 the accused in response to questioning by foreign or
                  17 United States military, intelligence, or criminal investiga-
                  18 tive personnel. This paragraph shall not be construed to
                  19 prevent the redaction of intelligence sources or methods,
                  20 which do not constitute statements of the accused, from
                  21 any document provided to the accused or admitted into
                  22 evidence.



                                                       35
                    1 ``§ 949e. Continuances
                    2              ``The military judge may, for reasonable cause, grant
                    3 a continuance to any party for such time, and as often,
                    4 as may appear to be just.
                    5 ``§ 949f. Challenges
                    6              ``(a)  CHALLENGES AUTHORIZED.--The military
                    7 judge and members of the commission may be challenged
                    8 by the accused or the trial counsel for cause stated to the
                    9 commission. The military judge shall determine the rel-
                  10 evance and validity of the challenges for cause, and may
                  11 not receive a challenge to more than one person at a time.
                  12 Challenges by the trial counsel shall ordinarily be pre-
                  13 sented and decided before those by the accused are of-
                  14 fered.
                  15               ``(b) PEREMPTORY CHALLENGES.--Each accused
                  16 and the trial counsel is entitled to one peremptory chal-
                  17 lenge, but the military judge may not be challenged except
                  18 for cause.
                  19               ``(c) CHALLENGES AGAINST ADDITIONAL MEM-
                  20      BERS.--Whenever additional members are detailed to the
                  21 court, and after any challenges for cause against such ad-
                  22 ditional members are presented and decided each accused
                  23 and the trial counsel are entitled to one peremptory chal-
                  24 lenge against members not previously subject to peremp-
                  25 tory challenge.



                                                      36
                    1 ``§ 949g. Oaths
                    2              ``(a) IN GENERAL.--(1) Before performing their re-
                    3 spective duties, military judges, members of commissions,
                    4 trial counsel, defense counsel, reporters, and interpreters
                    5 shall take an oath to perform their duties faithfully.
                    6              ``(2) The form of the oath required by paragraph (1),
                    7 the time and place of the taking thereof, the manner of
                    8 recording the same, and whether the oath shall be taken
                    9 for all cases in which these duties are to be performed
                  10 or for a particular case, shall be as prescribed in regula-
                  11 tions of the Secretary. These regulations may provide
                  12 that--
                  13                        ``(A) an oath to perform faithfully duties as a
                  14               military judge, trial counsel, or defense counsel, may
                  15               be taken at any time by any judge advocate or other
                  16               person certified to be qualified or competent for
                  17               duty; and
                  18                        ``(B) if such an oath is taken it need not again
                  19               be taken at the time the judge advocate, or other
                  20               person is detailed to that duty.
                  21               ``(b) WITNESSES.--Each witness before a military
                  22 commission under this chapter shall be examined on oath.
                  23               ``(c) OATH DEFINED.--As used in this section,
                  24 ``oath'' includes an affirmation.


                                                       37
                    1 ``§ 949h. Former jeopardy
                    2              ``(a) IN GENERAL.--No person may, without his con-
                    3 sent, be tried by a commission a second time for the same
                    4 offense.
                    5              ``(b) SCOPE OF TRIAL.--No proceeding in which the
                    6 accused has been found guilty by military commission
                    7 upon any charge or specification is a trial in the sense
                    8 of this section until the finding of guilty has become final
                    9 after review of the case has been fully completed.
                  10 ``§ 949i. Pleas of the accused
                  11               ``(a) PLEA OF NOT GUILTY.--If an accused after a
                  12 plea of guilty sets up matter inconsistent with the plea,
                  13 or if it appears that he has entered the plea of guilty
                  14 through lack of understanding of its meaning and effect,
                  15 or if he fails or refuses to plead, a plea of not guilty shall
                  16 be entered in the record, and the commission shall proceed
                  17 as though he had pleaded not guilty.
                  18               ``(b) FINDING OF GUILT AFTER GUILTY PLEA.--
                  19 With respect to any charge or specification to which a plea
                  20 of guilty has been made by the accused and accepted by
                  21 the military judge, a finding of guilty of the charge or
                  22 specification may be entered immediately without a vote.
                  23 This finding shall constitute the finding of the commission
                  24 unless the plea of guilty is withdrawn prior to announce-
                  25 ment of the sentence, in which event the proceedings shall
                  26 continue as though the accused had pleaded not guilty.



                                                      38
                    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, including
                    6 evidence in the possession of the United States, as speci-
                    7 fied in regulations prescribed by the Secretary.
                    8              ``(2) Process issued in military commissions to com-
                    9 pel witnesses to appear and testify and to compel the pro-
                  10 duction 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) TREATMENT OF CERTAIN ITEMS.--The military
                  17 judge in a military commission under this chapter may,
                  18 upon a sufficient showing, authorize trial counsel in mak-
                  19 ing documents available to the defense through discovery
                  20 conducted pursuant to such rules as the Secretary shall
                  21 prescribe--
                  22                        ``(1) to delete specified items of classified infor-
                  23               mation from such documents;
                  24                        ``(2) to substitute an unclassified summary of
                  25               the information for such classified documents; or


                                                      39
                    1                       ``(3) to substitute an unclassified statement ad-
                    2              mitting relevant facts that classified information
                    3              would tend to prove.
                    4              ``(c) DISCLOSURE OF EXCULPATORY EVIDENCE.--
                    5 (1) As soon as practicable, trial counsel in a military com-
                    6 mission under this chapter shall disclose to the defense
                    7 the existence of any evidence known to trial counsel that
                    8 reasonably tends to exculpate the accused.
                    9              ``(2) Exculpatory evidence that is classified may be
                  10 provided solely to defense counsel, and not the accused,
                  11 after in camera review by the military judge.
                  12               ``(3) Before classified evidence may be withheld from
                  13 the accused under this subsection, the executive or mili-
                  14 tary department or governmental agency which has con-
                  15 trol over the matter shall ensure and shall certify in writ-
                  16 ing to the military judge that the disclosure of such evi-
                  17 dence to the accused could reasonably be expected to prej-
                  18 udice the national security and that such evidence has
                  19 been declassified to the maximum extent possible, con-
                  20 sistent with the requirements of national security.
                  21               ``(4) Any classified exculpatory evidence that is not
                  22 disclosed to the accused under this subsection--
                  23                        ``(A) shall be provided to military defense coun-
                  24               sel; and



                                                      40
                    1                       ``(B) shall be provided to civilian defense coun-
                    2              sel, provided that civilian defense counsel has ob-
                    3              tained the necessary security clearances and access
                    4              to such evidence is consistent with regulations that
                    5              the Secretary may prescribe to protect classified in-
                    6              formation; and
                    7                       ``(C) shall be provided to the accused in a re-
                    8              dacted or summary form, if it is possible to do so
                    9              without compromising intelligence sources, methods,
                  10               or activities, or other national security interests.
                  11               ``(5) Notwithstanding any other provision of law, any
                  12 defense counsel who receives evidence under this sub-
                  13 section shall not be obligated to, and may not, disclose
                  14 that evidence to the accused.
                  15 ``§ 949k. Defense of lack of mental responsibility
                  16               ``(a) AFFIRMATIVE DEFENSE.--It is an affirmative
                  17 defense in a trial by military commission that, at the time
                  18 of the commission of the acts constituting the offense, the
                  19 accused, as a result of a severe mental disease or defect,
                  20 was unable to appreciate the nature and quality or the
                  21 wrongfulness of the acts. Mental disease or defect does
                  22 not otherwise constitute a defense.
                  23               ``(b) BURDEN OF PROOF.--The accused has the bur-
                  24 den of proving the defense of lack of mental responsibility
                  25 by clear and convincing evidence.


                                                       41
                    1              ``(c) FINDINGS FOLLOWING ASSERTION OF DE-
                    2     FENSE.--Whenever lack of mental responsibility of the ac-
                    3 cused with respect to an offense is properly at issue, the
                    4 military judge shall instruct the members of the commis-
                    5 sion as to the defense of lack of mental responsibility
                    6 under this section and shall charge them to find the ac-
                    7 cused--
                    8                       ``(1) guilty;
                    9                       ``(2) not guilty; or
                  10                        ``(3) not guilty only by reason of lack of mental
                  11               responsibility.
                  12               ``(d) MAJORITY VOTE REQUIRED FOR FINDING.--
                  13 The accused shall be found not guilty only by reason of
                  14 lack of mental responsibility under subsection (c)(3) only
                  15 if a majority of the members of the commission at the
                  16 time the vote is taken determines that the defense of lack
                  17 of mental responsibility has been established.
                  18 ``§ 949l. Voting and rulings
                  19               ``(a) VOTE BY SECRET WRITTEN BALLOT.--Voting
                  20 by members of a military commission on the findings and
                  21 on the sentence shall be by secret written ballot.
                  22               ``(b) RULINGS.--(1) The military judge shall rule
                  23 upon all questions of law, including the admissibility of
                  24 evidence, and all interlocutory questions arising during the
                  25 proceedings.


                                                       42
                    1              ``(2) Any such ruling made by the military judge
                    2 upon any question of law or any interlocutory question
                    3 other than the factual issue of mental responsibility of the
                    4 accused is conclusive and constitutes the ruling of the
                    5 commission. However, the military judge may change his
                    6 ruling at any time during the trial.
                    7              ``(c) INSTRUCTIONS PRIOR TO VOTE.--Before a vote
                    8 is taken of the findings, the military judge shall, in the
                    9 presence of the accused and counsel, instruct the members
                  10 of the commission as to the elements of the offense and
                  11 charge them--
                  12                        ``(1) that the accused must be presumed to be
                  13               innocent until his guilt is established by legal and
                  14               competent evidence beyond reasonable doubt;
                  15                        ``(2) that in the case being considered, if there
                  16               is a reasonable doubt as to the guilt of the accused,
                  17               the doubt must be resolved in favor of the accused
                  18               and he must be acquitted;
                  19                        ``(3) that, if there is reasonable doubt as to the
                  20               degree of guilt, the finding must be in a lower de-
                  21               gree as to which there is no reasonable doubt; and
                  22                        ``(4) that the burden of proof to establish the
                  23               guilt of the accused beyond a reasonable doubt is
                  24               upon the United States.



                                                       43
                    1 ``§ 949m. Number of votes required
                    2              ``(a) CONVICTION.--No person may be convicted of
                    3 any offense, except as provided in section 949i(b) of this
                    4 title or by concurrence of two-thirds of the members
                    5 present at the time the vote is taken.
                    6              ``(b) SENTENCES.--(1) Except. as provided in para-
                    7 graphs (2) and (3), sentences shall be determined by a
                    8 military commission by the concurrence of two-thirds of
                    9 the members present at the time the vote is taken.
                  10               ``(2) No person may be sentenced to suffer death, ex-
                  11 cept insofar as--
                  12                        ``(A) death has been expressly authorized under
                  13               this Act for an offense of which the accused has
                  14               been found guilty;
                  15                        ``(B) the charges referred to the commission ex-
                  16               pressly sought the penalty of death;
                  17                        ``(C) the accused was convicted of the offense
                  18               by the concurrence of all the members of the mili-
                  19               tary commission present at the time the vote is
                  20               taken; and
                  21                        ``(D) all members of the military commission
                  22               present at the time the vote was taken concurred in
                  23               the sentence of death.
                  24               ``(3) No person may be sentenced to life imprison-
                  25 ment or to confinement for more than 10 years, except


                                                       44
                    1 by the concurrence of three-fourths of the members at the
                    2 time the vote is taken.
                    3              ``(c) NUMBER OF MEMBERS REQUIRED FOR PEN-
                    4     ALTY OF DEATH.--(1) Except as provided in paragraph
                    5 (2), in a case in which the penalty of death is sought, the
                    6 number of members shall be not less than 12.
                    7              ``(2) In any case described in paragraph (1) in which
                    8 12 members are not reasonably available because of phys-
                    9 ical conditions or military exigencies, the convening au-
                  10 thority shall specify a lesser number of members for the
                  11 military commission (but not fewer than 5 members), and
                  12 the military commission may be assembled and the trial
                  13 held with not fewer than the number of members so speci-
                  14 fied. In such a case, the convening authority shall make
                  15 a detailed written statement, to be appended to the record,
                  16 stating why a greater number of members were not rea-
                  17 sonably available.
                  18 ``§ 949n. Military commission to announce action
                  19               ``A military commission shall announce its findings
                  20 and sentence to the parties as soon as determined.
                  21 ``§ 949o. Record of trial
                  22               ``(a) RECORD; AUTHENTICATION.--Each military
                  23 commission shall keep a separate, substantially verbatim,
                  24 record of the proceedings in each case brought before it,
                  25 and the record shall be authenticated by the signature of


                                                       45
                    1 the military judge. If the record cannot be authenticated
                    2 by the military judge by reason of his death, disability,
                    3 or absence, it shall be authenticated by the signature of
                    4 the trial counsel or by that of a member of the commission
                    5 if the trial counsel is unable to authenticate it by reason
                    6 of his death, disability, or absence. Where appropriate,
                    7 and as provided by regulation, the record of the military
                    8 commission may contain a classified annex.
                    9              ``(b) COMPLETE RECORD REQUIRED.--A complete
                  10 record of the proceedings and testimony shall be prepared
                  11 in every military commission established under this chap-
                  12 ter.
                  13               ``(c) PROVISION OF COPY TO ACCUSED.--A copy of
                  14 the record of the proceedings of each military commission
                  15 shall be given to the accused as soon as it is authenticated.
                  16 Where the record contains classified information, or a
                  17 classified annex, the accused shall receive a redacted
                  18 version of the record. The appropriate defense counsel
                  19 shall have access to the unredacted record, as provided
                  20 by regulation.
                  21                          ``SUBCHAPTER V--SENTENCES
                          ``Sec.
                          ``949s. Cruel or unusual punishments prohibited.
                          ``949t. Maximum limits.
                          ``949u. Execution of confinement.


                                                      46
                    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 or inflicted upon any person subject to this chapter.
                    6 The use of irons, single or double, except for the purpose
                    7 of safe custody, is prohibited.
                    8 ``§ 949t. Maximum limits
                    9              ``The punishment which a military commission may
                  10 direct for an offense may not exceed such limits as the
                  11 President or Secretary may prescribe for that offense.
                  12 ``§ 949u. Execution of confinement
                  13               ``(a) IN GENERAL.--Under such regulations as the
                  14 Secretary may prescribe, a sentence of confinement ad-
                  15 judged by a military commission may be carried into exe-
                  16 cution by confinement--
                  17                        ``(1) in any place of confinement under the con-
                  18               trol of any of the armed forces; or
                  19                        ``(2) in any penal or correctional institution
                  20               under the control of the United States or its allies
                  21               or which the United States may be allowed to use.
                  22               ``(b) TREATMENT DURING CONFINEMENT BY OTHER
                  23 THAN THE ARMED FORCES.--Persons confined under
                  24 subsection (a)(2) in a penal or correctional institution not
                  25 under the control of one of the armed forces are subject
                  26 to the same discipline and treatment as persons confined


                                                      47
                    1 or committed by the courts of the United States or of the
                    2 State, Territory, District of Columbia, or place in which
                    3 the institution is situated.
                    4         ``SUBCHAPTER VI--POST-TRIAL PROCEDURE
                    5             AND REVIEW OF MILITARY COMMISSIONS
                          ``Sec.
                          ``950a. Error of law; lesser included offense.
                          ``950b. Review by the convening authority.
                          ``950c. Waiver or withdrawal of appeal.
                          ``950d. Appeal by the United States.
                          ``950e. Rehearings.
                          ``950f. Review by Court of Military Commission Review.
                          ``950g. Review by the United States Court of Appeals for the District of Colum-
                                            bia Circuit and the Supreme Court of the United States.
                          ``950h. Appellate counsel.
                          ``950i. Execution of sentence; suspension of sentence.
                          ``950j. Finality or proceedings, findings, and sentences.

                    6 ``§ 950a. Error of law; lesser included offense
                    7              ``(a) ERROR OF LAW.--A finding or sentence of a
                    8 military commission may not be held incorrect on the
                    9 ground of an error of law unless the error materially prej-
                  10 udices the substantial rights of the accused.
                  11               ``(b) LESSER INCLUDED OFFENSE.--Any reviewing
                  12 authority with the power to approve or affirm a finding
                  13 of guilty may approve or affirm, instead, so much of the
                  14 finding as includes a lesser included offense.
                  15 ``§ 950b. Review by the convening authority
                  16               ``(a) NOTICE TO CONVENING AUTHORITY OF FIND-
                  17      INGS AND SENTENCE.--The findings and sentence of a
                  18 military commission under this chapter shall be reported


                                                     48
                    1 in writing promptly to the convening authority after the
                    2 announcement of the sentence.
                    3              ``(b) SUBMITTAL OF MATTERS BY ACCUSED TO CON-
                    4     VENING AUTHORITY.--(1) The accused may submit to the
                    5 convening authority matters for consideration by the con-
                    6 vening authority with respect to the findings and the sen-
                    7 tence of the military commission under this chapter.
                    8              ``(2)(A) Except as provided in subparagraph (B), a
                    9 submittal under paragraph (1) shall be made in writing
                  10 within 20 days after the accused has been given an au-
                  11 thenticated record of trial under section 949o(c) of this
                  12 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, for good cause, may
                  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 mission to the convening authority under paragraph (1).
                  20 Such a waiver must 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 submission under
                  23 this subsection shall be deemed to have expired upon the
                  24 submission of such a waiver to the convening authority.


                                                    49
                    1              ``(c) ACTION BY THE CONVENING AUTHORITY.--(1)
                    2 The authority under this section to modify the findings
                    3 and sentence of a military commission under this chapter
                    4 is a matter of the sole discretion and prerogative of the
                    5 convening authority.
                    6              ``(2)(A) Action on the sentence of a military commis-
                    7 sion shall be taken by the convening authority.
                    8              ``(B) Subject to regulations of the Secretary, such ac-
                    9 tion may be taken only after consideration of any matters
                  10 submitted by the accused under subsection (b) or after
                  11 the time for submitting such matters expires, whichever
                  12 is earlier.
                  13               ``(C) In taking action under this paragraph, the con-
                  14 vening authority, in his sole discretion, may approve, dis-
                  15 approve, commute, or suspend the sentence in whole or
                  16 in part. The convening authority may not increase the sen-
                  17 tence beyond that which is found by the commission.
                  18               ``(3) Action on the findings of a military commission
                  19 by the convening authority is not required. However, the
                  20 convening authority, in his sole discretion, may--
                  21                        ``(A) dismiss any charge or specification by set-
                  22               ting aside a finding of guilty thereto; or
                  23                        ``(B) change a finding of guilty to a charge to
                  24               a finding of guilty to an offense that is a lesser in-
                  25               cluded offense of the offense stated in the charge.


                                                    50
                    1              ``(4) The convening authority shall serve on the ac-
                    2 cused or on defense counsel notice of any action taken by
                    3 the convening authority under this subsection.
                    4              ``(d) ORDER OF REVISION OR REHEARING.--(1) Sub-
                    5 ject to paragraphs (2) and (3), the convening authority,
                    6 in his sole discretion, may order a proceeding in revision
                    7 or a rehearing.
                    8              ``(2)(A) Except as provided in subparagraph (B), a
                    9 proceeding in revision may be ordered if--
                  10                        ``(i) there is an apparent error or omission in
                  11               the record; or
                  12                        ``(ii) the record shows improper or inconsistent
                  13               action by a military commission with respect to the
                  14               findings or sentence that can be rectified without
                  15               material prejudice to the substantial rights of the
                  16               accused.
                  17               ``(B) In no case may a proceeding in revision--
                  18                        ``(i) reconsider a finding of not guilty of any
                  19               specification or a ruling which amounts to a finding
                  20               of not guilty;
                  21                        ``(ii) reconsider a finding of not guilty of any
                  22               charge, unless there has been a finding of guilty
                  23               under a specification laid under that charge, which
                  24               sufficiently alleges a violation;


                                                   51
                    1                       ``(iii) increase the severity of the sentence un-
                    2              less the sentence prescribed for the offense is man-
                    3              datory.
                    4              ``(3) A rehearing may be ordered by the convening
                    5 authority if he disapproves the findings and sentence and
                    6 states the reasons for disapproval of the findings. If such
                    7 a person disapproves the findings and sentence and does
                    8 not order a rehearing, he shall dismiss the charges. A re-
                    9 hearing as to the findings may not be ordered where there
                  10 is a lack of sufficient evidence in the record to support
                  11 the findings. A rehearing as to the sentence may be or-
                  12 dered if the convening authority disapproves the sentence.
                  13 ``§ 950c. Waiver or withdrawal of appeal
                  14               ``(a) WAIVER OF RIGHT OF REVIEW.--(1) In each
                  15 case subject to appellate review under section 950f and
                  16 950g of this title, except a case in which the sentence as
                  17 approved under section 950b of this title includes death,
                  18 the accused may file with the convening authority a state-
                  19 ment expressly waiving the right of the accused to such
                  20 review.
                  21               ``(2) A waiver under paragraph (1) shall be signed
                  22 by both the accused and by a defense counsel.
                  23               ``(3) A waiver under paragraph (1) must be filed, if
                  24 at all, within 10 days after notice on the action is served
                  25 on the accused under section 950b(c)(4) of this title. The


                                                   52
                    1 convening authority, for good cause, may extend the pe-
                    2 riod for such filing by not more than 30 days.
                    3              ``(b) WITHDRAWAL OF APPEAL.--Except in a case in
                    4 which the sentence as approved under section 950b of this
                    5 title includes death, the accused may withdraw an appeal
                    6 at any time.
                    7              ``(c) EFFECT OF WAIVER OR WITHDRAWAL.--A
                    8 waiver of the right to appellate review or the withdrawal
                    9 of an appeal under this section bars review under section
                  10 950f or 950g of this title.
                  11 ``§ 950d. Appeal by the United States
                  12               ``(a) INTERLOCUTORY APPEAL.--(1) Except as pro-
                  13 vided in paragraph (2), in a trial by military commission
                  14 under this chapter, the United States may take an inter-
                  15 locutory appeal to the Court of Military Commission Re-
                  16 view of any order or ruling of the military judge that--
                  17                        ``(A) terminates commission proceedings with
                  18               respect to a charge or specification;
                  19                        ``(B) excludes evidence that is substantial proof
                  20               of a fact material in the proceeding; or
                  21                        ``(C) relates to a matter under subsection (d),
                  22               (e), or (f) of section 949d of this title.
                  23               ``(2) The United States may not appeal under para-
                  24 graph (1) an order or ruling that is, or amounts to, a find-


                                                   53
                    1 ing of not guilty by the commission with respect to the
                    2 charge or specification.
                    3              ``(b) NOTICE OF APPEAL.--The United States shall
                    4 take an appeal of an order or ruling under subsection (a)
                    5 by filing a notice of appeal with the military judge within
                    6 five days after the date of such order or ruling.
                    7              ``(c) APPEAL.--An appeal under this section shall be
                    8 forwarded by means prescribed under regulations of the
                    9 Secretary directly to the Court of Military Commission Re-
                  10 view. In ruling on an appeal under this section, the Court
                  11 of Military Commission Review may act only with respect
                  12 to matters of law.
                  13               ``(d) COURT OF APPEALS.--The United States may
                  14 appeal an adverse ruling under subsection (c) to the
                  15 United States Court of Appeals for the District of Colum-
                  16 bia Circuit by filing a petition for review in the Court of
                  17 Appeals within 10 days after the date of such ruling. Re-
                  18 view under this subsection shall be at the discretion of the
                  19 Court of Appeals.
                  20 ``§ 950e. Rehearings
                  21               ``(a) COMPOSITION OF MILITARY COMMISSION FOR
                  22 REHEARING.--Each rehearing under this chapter shall
                  23 take place before a military commission composed of mem-
                  24 bers not members of the commission which first heard the
                  25 case.


                                                   54
                    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              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) unless the sentence prescribed for the
                  12                        offense is mandatory.
                  13               ``(2) Upon a rehearing, if the sentence approved after
                  14 the first commission was in accordance with a pretrial
                  15 agreement and the accused at the rehearing changes his
                  16 plea with respect to the charges or specifications upon
                  17 which the pretrial agreement was based, or otherwise does
                  18 not comply with pretrial agreement, the sentence as to
                  19 those charges or specifications may include any punish-
                  20 ment not in excess of that lawfully adjudged at the first
                  21 commission.
                  22 ``§ 950f. Review by Court of Military Commission Re-
                  23                             view
                  24               ``(a) COURT ESTABLISHED.--(1) The Secretary shall
                  25 establish a Court of Military Commission Review which


                                                   55
                    1 shall be composed of one or more panels, and each such
                    2 panel shall be composed of not less than three appellate
                    3 military judges.
                    4              ``(2) For the purpose of reviewing military commis-
                    5 sion decisions, the court may sit in panels or as a whole
                    6 in accordance with rules prescribed by the Secretary.
                    7              ``(b) COMPOSITION OF THE COURT.--(1) The Sec-
                    8 retary shall assign appellate military judges to a Court
                    9 of Military Commission Review.
                  10               ``(2) Each appellate military judge shall meet the
                  11 qualifications for military judges prescribed by section
                  12 948j(b) of this Act or shall be a civilian with comparable
                  13 qualifications.
                  14               ``(3) No person may be appointed to serve as an ap-
                  15 pellate military judge in any case in which that person
                  16 acted as a military judge, counsel, or reviewing official.
                  17               ``(c) RIGHT OF APPEAL.--The accused may appeal
                  18 from the final decision of a military commission, and the
                  19 United States may appeal as provided in section 950d of
                  20 this title, to the Court of Military Commission Review in
                  21 accordance with procedures prescribed under regulations
                  22 of the Secretary.
                  23               ``(d) SCOPE OF REVIEW.--In ruling on an appeal
                  24 under this section, the Court of Military Commission Re-
                  25 view may act only with respect to matters of law.


                                                  56
                    1 ``§ 950g. Review by the United States Court of Ap-
                    2                            peals for the District of Columbia Circuit
                    3                            and the Supreme Court of the United
                    4                            States
                    5              ``(a) IN GENERAL.--(1)(A) Except as provided in
                    6 subparagraph (B), the United States Court of Appeals for
                    7 the District of Columbia Circuit shall have exclusive juris-
                    8 diction to determine the validity of a final judgment ren-
                    9 dered by a military commission, pursuant to Section
                  10 1005(e)(3) of the Detainee Treatment Act of 2005.
                  11               ``(B) The Court of Appeals shall not review the final
                  12 judgment until all other appeals under this chapter have
                  13 been waived or exhausted.
                  14               ``(2) A petition for review must be filed by the ac-
                  15 cused in the Court of Appeals by no longer than 20 days
                  16 from the earlier of when--
                  17                        ``(A) written notice of the final decision of the
                  18               Court of Military Commission Review is served on
                  19               the accused or on defense counsel; or
                  20                        ``(B) the accused submits, in the form pre-
                  21               scribed by section 950c of this title, a written notice
                  22               waiving his right to appeal under section 950f of
                  23               this title.
                  24               ``(b) REVIEW BY SUPREME COURT.--The Supreme
                  25 Court of the United States may review by writ of certiorari


                                                  57
                    1 the final judgment of the Court of Appeals pursuant to
                    2 section 1257 of title 28, United States Code.
                    3 ``§ 950h. Appellate counsel
                    4              ``(a) APPOINTMENT.--The Secretary shall, by regula-
                    5 tion, establish procedures for the appointment of appellate
                    6 counsel for the United States and for the accused in mili-
                    7 tary commissions under this chapter. Appellate counsel
                    8 shall meet the qualifications for appearing before military
                    9 commissions under this chapter.
                  10               ``(b) REPRESENTATION OF UNITED STATES.--Appel-
                  11 late counsel may represent the United States in any ap-
                  12 peal or review proceeding under this chapter. Appellate
                  13 Government counsel may represent the United States be-
                  14 fore the Supreme Court in cases arising under this chapter
                  15 when requested to do so by the Attorney General.
                  16               ``(c) REPRESENTATION OF ACCUSED.--The accused
                  17 shall be represented by appellate military counsel before
                  18 the Court of Military Commission Review, the United
                  19 State Court of Appeals for the District of Columbia Cir-
                  20 cuit, or the Supreme Court, or by civilian counsel if re-
                  21 tained by him.
                  22 ``§ 950i. Execution of sentence; suspension of sentence
                  23               ``(a) EXECUTION OF SENTENCE OF DEATH ONLY
                  24 UPON APPROVAL BY THE PRESIDENT.--If the sentence
                  25 of a military commission under this chapter extends to


                                                 58
                    1 death, that part of the sentence providing for death may
                    2 not be executed until approved by the President. In such
                    3 a case, the President may commute, remit, or suspend the
                    4 sentence, or any part thereof, as he sees fit.
                    5              ``(b) EXECUTION OF SENTENCE OF DEATH ONLY
                    6 UPON FINAL JUDGMENT OF LEGALITY OF PRO-
                    7 CEEDINGS.--(1) If the sentence of a military commission
                    8 under this chapter extends to death, the sentence may not
                    9 be executed until there is a final judgment as to the legal-
                  10 ity of the proceedings (and with respect to death, approval
                  11 under subsection (a)).
                  12               ``(2) A judgment as to legality of the proceedings is
                  13 final for purposes of paragraph (1) when--
                  14                        ``(A) review is completed by the Court of Mili-
                  15               tary Commission Review and--
                  16                                  ``(i) the time for the accused to file a peti-
                  17                        tion for review by the Court of Appeals for the
                  18                        D.C. Circuit has expired;
                  19                                  ``(ii) the accused has not filed a timely pe-
                  20                        tition for such review; and
                  21                                  ``(iii) the case is not otherwise under re-
                  22                        view by that Court; or
                  23                        ``(B) review is completed in accordance with
                  24               judgment of the Court of Appeals for the D.C. Cir-
                  25               cuit and--


                                                 59
                    1                                 ``(i) a petition for a writ of certiorari is not
                    2                       timely filed;
                    3                                 ``(ii) such a petition is denied by the Su-
                    4                       preme Court; or
                    5                                 ``(iii) review is otherwise completed in ac-
                    6                       cordance with the judgment of the Supreme
                    7                       Court.
                    8              ``(c) SUSPENSION OF SENTENCE.--The Secretary, or
                    9 the convening authority acting on the case (if other than
                  10 the Secretary), may suspend the execution of any sentence
                  11 or part thereof in the case, except a sentence of death.
                  12 ``§ 950j. Finality of proceedings, findings, and sen-
                  13                             tences
                  14               ``(a) FINALITY.--The appellate review of records of
                  15 trial provided by this chapter, the proceedings, findings,
                  16 and sentences of military commissions as approved, re-
                  17 viewed, or affirmed as required by this chapter, are final
                  18 and conclusive. Orders publishing the proceedings of mili-
                  19 tary commissions are binding upon all departments,
                  20 courts, agencies, and officers of the United States, subject
                  21 only to authority of the President.
                  22               ``(b) PROVISIONS OF CHAPTER SOLE BASIS FOR RE-
                  23      VIEW OF MILITARY COMMISSION PROCEDURES AND AC-
                  24      TIONS.--Except as otherwise provided in this chapter, and
                  25 notwithstanding any other law (including section 2241 of


                                                 60
                    1 title 28, United States Code, or any other habeas corpus
                    2 provision), no court, justice, or judge shall have jurisdic-
                    3 tion to hear or consider any claim or cause of action what-
                    4 soever, including any action pending on or filed after the
                    5 date of enactment of this chapter, relating to the prosecu-
                    6 tion, trial, or judgment of a military commission convened
                    7 under this section, including challenges to the lawfulness
                    8 of the procedures of military commissions under this chap-
                    9 ter.
                  10               ``SUBCHAPTER VII--PUNITIVE MATTERS
                          ``Sec.
                          ``950p. Substantive offenses.
                          ``950q. Principals.
                          ``950r. Accessory after the fact.
                          ``950s. Conviction of lesser offenses.
                          ``950t. Attempts.
                          ``950u. Solicitation.
                          ``950v. Crimes triable by military commission.
                          ``950w. Perjury and obstruction of justice.
                          ``950x. Contempt.

                  11 ``§ 950p. Substantive offenses generally
                  12               ``(a) PURPOSE.--The following provisions codify of-
                  13 fenses that have traditionally been triable by military com-
                  14 missions. This Act does not establish new crimes that did
                  15 not exist before its establishment, but rather codifies those
                  16 crimes for trial by military commission.
                  17               ``(b) EFFECT.--Because these provisions are declara-
                  18 tive of existing law, they do not preclude trial for crimes
                  19 that occurred prior to their effective date.


                                                  61
                    1 ``§ 950q. Principals
                    2              ``Any person is punishable as a principal under this
                    3 chapter who--
                    4                       ``(1) commits an offense punishable by this
                    5              chapter, or aids, abets, counsels, commands, or pro-
                    6              cures its commission;
                    7                       ``(2) causes an act to be done which if directly
                    8              performed by him would be punishable by this chap-
                    9              ter; or
                  10                        ``(3) is a superior commander who, with regard
                  11               to acts punishable under this chapter, knew, had
                  12               reason to know, or should have known, that a subor-
                  13               dinate was about to commit such acts or had done
                  14               so and the superior failed to take the necessary and
                  15               reasonable measures to prevent such acts or to pun-
                  16               ish the perpetrators thereof.
                  17 ``§ 950r. Accessory after the fact
                  18               ``Any person subject to this chapter who, knowing
                  19 that an offense punishable by this chapter has been com-
                  20 mitted, receives, comforts, or assists the offender in order
                  21 to hinder or prevent his apprehension, trial, or punishment
                  22 shall be punished as a military commission may direct.
                  23 ``§ 950s. Conviction of lesser offenses
                  24               ``An accused may be found guilty of an offense nec-
                  25 essarily included in the offense charged or of an attempt


                                                   62
                    1 to commit either the offense charged or an offense nec-
                    2 essarily included therein.
                    3 ``§ 950t. Attempts
                    4              ``(a) IN GENERAL.--Any person subject to this chap-
                    5 ter who attempts to commit any offense punishable by this
                    6 Act shall be punished as a military commission may direct.
                    7              ``(b) SCOPE OF OFFENSE.--An act, done with spe-
                    8 cific intent to commit an offense under this chapter,
                    9 amounting to more than mere preparation and tending,
                  10 even though failing, to effect its commission, is an attempt
                  11 to commit that offense.
                  12               ``(c) EFFECT OF CONSUMMATION.--Any person sub-
                  13 ject to this chapter may be convicted of an attempt to com-
                  14 mit an offense although it appears on the trial that the
                  15 offense was consummated.
                  16 ``§ 950u. Solicitation
                  17               ``Any person subject to this chapter who solicits or
                  18 advises another or others to commit one or more sub-
                  19 stantive offenses triable by military commission shall, if
                  20 the offense solicited or advised is attempted or committed,
                  21 be punished with the punishment provided for the commis-
                  22 sion of the offense, but, if the offense solicited or advised
                  23 is not committed or attempted, he shall be punished as
                  24 a military commission may direct.


                                                   63
                    1 ``§ 950v. Crimes triable by military commission
                    2              ``(a) DEFINITIONS AND CONSTRUCTION.--(1) For
                    3 purposes of this chapter, the term `military objective' re-
                    4 fers to combatants and those objects during an armed con-
                    5 flict which, by their nature, location, purpose, or use, ef-
                    6 fectively contribute to the opposing force's war-fighting or
                    7 war-sustaining capability and whose total or partial de-
                    8 struction, capture, or neutralization would constitute a
                    9 definite military advantage to the attacker under the cir-
                  10 cumstances at the time of the attack.
                  11               ``(2) For purposes of this section only, `protected per-
                  12 son' refers to any person entitled to protection under one
                  13 or more of the Geneva Conventions, including civilians not
                  14 taking an active part in hostilities, military personnel
                  15 placed hors de combat by sickness, wounds, or detention,
                  16 and military medical or religious personnel.
                  17               ``(3) For purposes of this chapter, the term `protected
                  18 property' refers to property specifically protected by the
                  19 law of war such as buildings dedicated to religion, edu-
                  20 cation, art, science or charitable purposes, historic monu-
                  21 ments, hospitals, or places where the sick and wounded
                  22 are collected, provided they are not being used for military
                  23 purposes or are not otherwise military objectives. Such
                  24 property would include objects properly identified by one
                  25 of the distinctive emblems of the Geneva Conventions but
                  26 does not include all civilian property.


                                                    64
                    1              ``(4) The intent required for offenses (1), (2), (3),
                    2 (4) and (12) under subsection (b) precludes their applica-
                    3 bility with regard to collateral damage or to death, dam-
                    4 age, or injury incident to a lawful attack.
                    5              ``(b) OFFENSES.--The following enumerated of-
                    6 fenses, when committed in the context of and associated
                    7 with armed conflict, shall be triable by military commis-
                    8 sion under this chapter at any time without limitation--
                    9                       ``(1) MURDER OF PROTECTED PERSONS.--Any
                  10               person who intentionally kills one or more protected
                  11               persons is guilty of the offense of intentionally kill-
                  12               ing protected persons and shall be subject to what-
                  13               ever punishment the commission may direct, includ-
                  14               ing the penalty of death.
                  15                        ``(2) ATTACKING CIVILIANS.--Any person who
                  16               intentionally engages in an attack upon a civilian
                  17               population as such or individual civilians not taking
                  18               active part in hostilities is guilty of the offense of at-
                  19               tacking civilians and shall be subject to whatever
                  20               punishment the commission may direct, including, if
                  21               death results to one or more of the victims, the pen-
                  22               alty of death.
                  23                        ``(3) ATTACKING CIVILIAN OBJECTS.--Any per-
                  24               son who intentionally engages in an attack upon ci-
                  25               vilian objects (property that is not a military objec-


                                                    65
                    1              tive) shall be guilty of the offense of attacking civil-
                    2              ian objects and shall be subject to whatever punish-
                    3              ment the commission may direct.
                    4                       ``(4) ATTACKING PROTECTED PROPERTY.--Any
                    5              person who intentionally engages in an attack upon
                    6              protected property shall be guilty of the offense of
                    7              attacking protected property and shall be subject to
                    8              whatever punishment the commission may direct.
                    9                       ``(5) PILLAGING.--Any person who intentionally
                  10               and in the absence of military necessity appropriates
                  11               or seizes property for private or personal use, with-
                  12               out the consent of a person with authority to permit
                  13               such appropriation or seizure, shall be guilty of the
                  14               offense of pillaging and shall be subject to whatever
                  15               punishment the commission may direct.
                  16                        ``(6) DENYING QUARTER.--Any person who,
                  17               with effective command or control over subordinate
                  18               groups, declares, orders, or otherwise indicates to
                  19               those forces that there shall be no survivors or sur-
                  20               render accepted, with the intent therefore to threat-
                  21               en an adversary or to conduct hostilities such that
                  22               there would be no survivors or surrender accepted,
                  23               shall be guilty of denying quarter and shall be sub-
                  24               ject to whatever punishment the commission may di-
                  25               rect.


                                                    66
                    1                       ``(7) TAKING HOSTAGES.--Any person who,
                    2              having knowingly seized or detained one or more
                    3              persons, threatens to kill, injure, or continue to de-
                    4              tain such person or persons with the intent of com-
                    5              pelling any nation, person other than the hostage, or
                    6              group of persons to act or refrain from acting as an
                    7              explicit or implicit condition for the safety or release
                    8              of such person or persons, shall be guilty of the of-
                    9              fense of taking hostages and shall be subject to
                  10               whatever punishment the commission may direct, in-
                  11               cluding, if death results to one or more of the vic-
                  12               tims, the penalty of death.
                  13                        ``(8) EMPLOYING POISON OR ANALOGOUS WEAP-
                  14               ONS.--Any person who intentionally, as a method of
                  15               warfare, employs a substance or a weapon that re-
                  16               leases a substance that causes death or serious and
                  17               lasting damage to health in the ordinary course of
                  18               events, through its asphyxiating, bacteriological, or
                  19               toxic properties, shall be guilty of employing poison
                  20               or analogous weapons and shall be subject to what-
                  21               ever punishment the commission may direct, includ-
                  22               ing, if death results to one or more of the victims,
                  23               the penalty of death.
                  24                        ``(9) USING PROTECTED PERSONS AS
                  25               SHIELDS.--Any person who positions, or otherwise



                                                     67
                    1              takes advantage of, a protected person with the in-
                    2              tent to shield a military objective from attack or to
                    3              shield, favor, or impede military operations, shall be
                    4              guilty of the offense of using protected persons as
                    5              shields and shall be subject to whatever punishment
                    6              the commission may direct, including, if death re-
                    7              sults to one or more of the victims, the penalty of
                    8              death.
                    9                       ``(10) USING PROTECTED PROPERTY AS
                  10               SHIELDS.--Any person who positions, or otherwise
                  11               takes advantage of the location of, protected prop-
                  12               erty under the law of war with the intent to shield
                  13               a military objective from attack or to shield, favor,
                  14               or impede military operations, shall be guilty of the
                  15               offense of using protected property as shields and
                  16               shall be subject to whatever punishment the commis-
                  17               sion may direct.
                  18                        ``(11) TORTURE.--Any person who commits an
                  19               act specifically intended to inflict severe physical or
                  20               mental pain or suffering (other than pain or suf-
                  21               fering incidental to lawful sanctions) upon another
                  22               person within his custody or physical control for the
                  23               purpose of obtaining information or a confession,
                  24               punishment, intimidation, coercion, or any reason
                  25               based on discrimination of any kind, shall be guilty


                                                      68
                    1              of torture and subject to whatever punishment the
                    2              commission may direct, including, if death results to
                    3              one or more of the victims, the penalty of death. `Se-
                    4              vere mental pain or suffering' has the meaning pro-
                    5              vided in 18 U.S.C. 2340(2).
                    6                       ``(12) CRUEL OR INHUMAN TREATMENT.--Any
                    7              person who commits an act intended to inflict severe
                    8              physical or mental pain or suffering (other than pain
                    9              or suffering incidental to lawful sanctions), including
                  10               severe physical abuse, upon another person within
                  11               his custody or physical control shall be guilty of
                  12               cruel or inhuman treatment and subject to whatever
                  13               punishment the commission may direct, including, if
                  14               death results to one or more of the victims, the pen-
                  15               alty of death. `Severe mental pain or suffering' has
                  16               the meaning provided in 18 U.S.C. 2340(2).
                  17                        ``(13) INTENTIONALLY CAUSING SERIOUS BOD-

                  18               ILY INJURY.--Any person who intentionally causes
                  19               serious bodily injury to one or more persons, includ-
                  20               ing lawful combatants, in violation of the law of war
                  21               shall be guilty of the offense of causing serious bod-
                  22               ily injury and shall be subject to whatever punish-
                  23               ment the commission may direct, including, if death
                  24               results to one or more of the victims, the penalty of


                                                      69
                    1              death. `Serious bodily injury' has the meaning pro-
                    2              vided in 18 U.S.C. 113(b)(2).
                    3                       ``(14) MUTILATING OR MAIMING.--Any person
                    4              who intentionally injures one or more protected per-
                    5              sons, by disfiguring the person or persons by any
                    6              mutilation thereof or by permanently disabling any
                    7              member, limb, or organ of his body, without any le-
                    8              gitimate medical or dental purpose, shall be guilty of
                    9              the offense of mutilation or maiming and shall be
                  10               subject to whatever punishment the commission may
                  11               direct, including, if death results to one or more of
                  12               the victims, the penalty of death.
                  13                        ``(15) MURDER IN VIOLATION OF THE LAW OF
                  14               WAR.--Any person who intentionally kills one or
                  15               more persons, including lawful combatants, in viola-
                  16               tion of the law of war shall be guilty of the offense
                  17               of murder in violation of the law of war and shall
                  18               be subject to whatever punishment the commission
                  19               may direct, including the penalty of death.
                  20                        ``(16) DESTRUCTION OF PROPERTY IN VIOLA-
                  21               TION OF THE LAW OF WAR.--Any person who inten-
                  22               tionally destroys property belonging to another per-
                  23               son in violation of the law of war shall be guilty of
                  24               the offense of destruction of property in violation of


                                                       70
                    1              the law of war and shall be subject to whatever pun-
                    2              ishment the commission may direct.
                    3                       ``(17) USING TREACHERY OR PERFIDY.--Any
                    4              person who, after inviting the confidence or belief of
                    5              one or more persons that they were entitled to, or
                    6              obliged to accord, protection under the law of war,
                    7              intentionally makes use of that confidence or belief
                    8              in killing, injuring, or capturing such person or per-
                    9              sons, shall be guilty of using treachery or perfidy
                  10               and shall be subject to whatever punishment the
                  11               commission may direct.
                  12                        ``(18) IMPROPERLY USING A FLAG OF TRUCE.--
                  13               Any person who uses a flag of truce to feign an in-
                  14               tention to negotiate, surrender, or otherwise to sus-
                  15               pend hostilities when there is no such intention,
                  16               shall be guilty of improperly using a flag of truce
                  17               and shall be subject to whatever punishment the
                  18               commission may direct.
                  19                        ``(19) IMPROPERLY USING A DISTINCTIVE EM-
                  20               BLEM.--Any person who intentionally uses a distinc-
                  21               tive emblem recognized by the law of war for com-
                  22               batant purposes in a manner prohibited by the law
                  23               of war shall be guilty of improperly using a distinc-
                  24               tive emblem and shall be subject to whatever punish-
                  25               ment the commission may direct.


                                                       71
                    1                       ``(20) INTENTIONALLY MISTREATING A DEAD
                    2              BODY.--Any person who intentionally mistreats the
                    3              body of a dead person, without justification by legiti-
                    4              mate military necessary, shall be guilty of the of-
                    5              fense of mistreating a dead body and shall be sub-
                    6              ject to whatever punishment the commission may di-
                    7              rect.
                    8                       ``(21) RAPE.--Any person who forcibly or with
                    9              coercion or threat of force wrongfully invades the
                  10               body of a person by penetrating, however slightly,
                  11               the anal or genital opening of the victim with any
                  12               part of the body of the accused or with any foreign
                  13               object shall be guilty of the offense of rape and shall
                  14               be subject to whatever punishment the commission
                  15               may direct.
                  16                        ``(22) HIJACKING OR HAZARDING A VESSEL OR
                  17               AIRCRAFT.--Any person subject to this chapter who
                  18               intentionally seizes, exercises unauthorized control
                  19               over, or endangers the safe navigation of, a vessel or
                  20               aircraft that was not a legitimate military target is
                  21               guilty of the offense of hijacking or hazarding a ves-
                  22               sel or aircraft and shall be subject to whatever pun-
                  23               ishment the commission may direct, including, if
                  24               death results to one or more of the victims, the pen-
                  25               alty of death.


                                                       72
                    1                       ``(23) TERRORISM.--Any person subject to this
                    2              chapter who intentionally kills or inflicts great bodily
                    3              harm on one or more persons, or intentionally en-
                    4              gages in an act that evinces a wanton disregard for
                    5              human life, in a manner calculated to influence or
                    6              affect the conduct of government or civilian popu-
                    7              lation by intimidation or coercion, or to retaliate
                    8              against government conduct, shall be guilty of the
                    9              offense of terrorism and shall be subject to whatever
                  10               punishment the commission may direct, including, if
                  11               death results to one or more of the victims, penalty
                  12               of death.
                  13                        ``(24) PROVIDING MATERIAL SUPPORT FOR
                  14               TERRORISM.--Any person who provides material
                  15               support or resources, knowing or intending that they
                  16               are to be used in preparation for, or in carrying out,
                  17               an act of terrorism (as defined in subsection (b)(23)
                  18               of this section), or who intentionally provides mate-
                  19               rial support or resources to an international terrorist
                  20               organization engage in hostilities against the United
                  21               States, knowing that such organization has engaged
                  22               or engages in terrorism as defined in subsection
                  23               (b)(23) of this section), shall be guilty of the offense
                  24               of providing material support for terrorism and shall
                  25               be subject to whatever punishment the commission


                                                       73
                    1              may direct. The term `material support or resources'
                    2              has the meaning provided in 18 U.S.C. 2339A(b).
                    3                       ``(25) WRONGFULLY AIDING THE ENEMY.--Any
                    4              person who, in breach of an allegiance or duty to the
                    5              United States, knowingly and intentionally aids an
                    6              enemy of the United States or one its co-belligerents
                    7              shall be guilty of the offense of wrongfully aiding the
                    8              enemy and shall be subject to whatever punishment
                    9              the commission may direct.
                  10                        ``(26) SPYING.--Any person who, with intent or
                  11               reason to believe that it is to be used to the injury
                  12               of the United States or to the advantage of a for-
                  13               eign-power, collects or attempts to collect certain in-
                  14               formation by clandestine means or while acting
                  15               under false pretenses, for the purpose of conveying
                  16               such information to an enemy of the United States
                  17               or one of its co-belligerents, shall be guilty of the of-
                  18               fense of spying and shall be subject to whatever pun-
                  19               ishment the commission may direct, including the
                  20               penalty of death.
                  21                        ``(27) CONSPIRACY.--Any person who conspires
                  22               to commit one or more substantive offenses triable
                  23               under this section, and who knowingly does any
                  24               overt act to effect the object of the conspiracy, shall
                  25               be guilty of conspiracy and shall be subject to what-


                                                        74
                    1              ever punishment the commission may direct, includ-
                    2              ing, if death results to one or more of the victims,
                    3              the penalty of death.
                    4 ``§ 950w. Perjury and obstruction of justice
                    5              ``The military commissions also may try offenses and
                    6 impose punishments for perjury, false testimony, or ob-
                    7 struction of justice related to military commissions.
                    8 ``§ 950x. Contempt
                    9              ``A military commission may punish for contempt any
                  10 person who uses any menacing word, sign, or gesture in
                  11 its presence, or who disturbs its proceedings by any riot
                  12 or disorder.''.
                  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

                                               ``SUBCHAPTER I--GENERAL PROVISIONS

                                    ``SUBCHAPTER II--COMPOSITION OF COURTS-MARTIAL

                                             ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

                                                ``SUBCHAPTER IV--TRIAL PROCEDURE

                                                       ``SUBCHAPTER V--SENTENCES

                              ``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF
                                               MILITARY COMMISSIONS

                                               ``SUBCHAPTER VII--PUNITIVE MATTERS

                  18               (b) SUBMITTAL OF PROCEDURES TO CONGRESS.--


                                                       75
                    1                       (1) SUBMITTAL OF PROCEDURES.--Not later
                    2              than 90 days after the date of the enactment of this
                    3              Act, the Secretary shall submit to the Committees
                    4              on Armed Forces of the Senate and the House of
                    5              Representatives a report setting forth the procedures
                    6              for military commissions prescribed under Chapter
                    7              47A of title 10, United States Code (as added by
                    8              subsection (a)).
                    9                       (2) SUBMITTAL OF MODIFICATIONS.--Not later
                  10               than 60 days before the date on which any proposed
                  11               modification of the procedures described in para-
                  12               graph (1) shall go into effect, the Secretary shall
                  13               submit to the committees of Congress referred to in
                  14               that paragraph a report describing such modifica-
                  15               tions.
                  16      SEC. 5. JUDICIAL REVIEW.
                  17               Section 2241 of title 28, United States Code, is
                  18 amended by replacing subsection (e) with the following:
                  19               ``(e) Except as provided for in this subsection, and
                  20 notwithstanding any other law, no court, justice, or judge
                  21 shall have jurisdiction to hear or consider any claim or
                  22 cause of action, including an application for a writ of ha-
                  23 beas corpus, pending on or filed after the date of enact-
                  24 ment of this Act, against the United States or its agents,
                  25 brought by or on behalf of any alien detained by the


                                                       76
                    1 United States as an unlawful enemy combatant, relating
                    2 to any aspect of the alien's detention, transfer, treatment,
                    3 or conditions of confinement:
                    4                       ``(1) COMBATANT STATUS REVIEW TRIBUNALS.

                    5              The United States Court of Appeals for the District
                    6              of Columbia Circuit shall have exclusive jurisdiction
                    7              to determine the validity of any final decision of a
                    8              Combatant Status Review Tribunal. The scope of
                    9              such review is defined in section 1005(e)(2) of the
                  10               Detainee Treatment Act of 2005. If the Court
                  11               grants a detainee's petition for review, the Depart-
                  12               ment of Defense may conduct a new Combatant Sta-
                  13               tus Review Tribunal.
                  14                        ``(2) MILITARY COMMISSIONS.--Review shall be
                  15               had only of final judgments of military commissions
                  16               as provided for pursuant to section 247 of the Mili-
                  17               tary Commissions Act of 2006.
                  18                        ``(3) INFORMATION CONSIDERED.--The court
                  19               may consider classified information submitted in
                  20               camera and ex parte in making any determination
                  21               under this section.''.
                  22      SEC. 6. SATISFACTION OF TREATY OBLIGATIONS.
                  23               (a) IN GENERAL.--Satisfaction of the prohibitions
                  24 against cruel, inhuman, and degrading treatment set forth
                  25 in Section 1003 of the Detainee Treatment Act of 2005


                                                        77
                    1 (title X of Public Law 109­148; 119 Stat. 2739; 42
                    2 U.S.C. 2000dd) shall fully satisfy United States obliga-
                    3 tions with respect to the standards for detention and treat-
                    4 ment established by section 1 of common Article 3 of the
                    5 Geneva Conventions, with the exception of the obligations
                    6 imposed by subsections 1 (b) and 1 (d) of such Article.
                    7              (b) RIGHTS NOT JUDICIALLY ENFORCEABLE.--
                    8                       (1) IN GENERAL.--No person in any habeas ac-
                    9              tion or any other action may invoke the Geneva Con-
                  10               ventions or any protocols thereto as a source of
                  11               rights; whether directly or indirectly, for any pur-
                  12               pose in any court of the United States or its States
                  13               or territories.
                  14                        (2) CONSTRUCTION.--Paragraph (1) may not
                  15               be construed to affect the obligations of the United
                  16               States under the Geneva Conventions.
                  17               (c) GENEVA CONVENTIONS DEFINED.--In this sec-
                  18 tion, the term ``Geneva Conventions'' means the inter-
                  19 national conventions signed at Geneva on August 12,
                  20 1949, including common Article 3.
                  21      SEC. 7. WAR CRIMES ACT AMENDMENT.
                  22               Section 2441 of title 18, United States Code is
                  23 amended by replacing subsection (c)(3) with the following:
                  24               ``(3) which constitutes any of the following serious
                  25 violations of common Article 3 of the international conven-


                                                         78
                    1 tions signed at Geneva 12 August 1949, when committed
                    2 in the context of and in association with an armed conflict
                    3 not of an international character--
                    4                       ``(A) TORTURE.--Any person who commits, or
                    5              conspires or attempts to commit, an act specifically
                    6              intended to inflict severe physical or mental pain or
                    7              suffering (other than pain or suffering incidental to
                    8              lawful sanctions) upon another person within his
                    9              custody or physical control for the purpose of ob-
                  10               taining information or a confession, punishment, in-
                  11               timidation, coercion, or any reason based on dis-
                  12               crimination of any kind, shall be guilty of a violation
                  13               of this subsection. `Severe mental pain or suffering'
                  14               has the meaning provided in 18 U.S.C. 2340(2).
                  15                        ``(B) CRUEL OR INHUMAN TREATMENT.--Any
                  16               person who commits, or conspires or attempts to
                  17               commit, an act intended to inflict severe physical or
                  18               mental pain or suffering (other than pain or suf-
                  19               fering incidental to lawful sanctions), including se-
                  20               vere physical abuse, upon another person within his
                  21               custody or physical control shall be guilty of a viola-
                  22               tion of this subsection. `Severe mental pain or suf-
                  23               fering' has the meaning provided in 18 U.S.C.
                  24               2340(2).



                                                      79
                    1                       ``(C) PERFORMING BIOLOGICAL EXPERI-
                    2              MENTS.--Any person who subjects, or conspires or
                    3              attempts to subject, one or more persons within his
                    4              custody or physical control to biological experiments
                    5              without a legitimate medical purpose and in so doing
                    6              endangers the body or health of such person or per-
                    7              sons shall be guilty of a violation of this subsection.
                    8                       ``(D) MURDER.--Any person who intentionally
                    9              kills, or conspires or attempts to kill, or kills wheth-
                  10               er intentionally or unintentionally in the course of
                  11               committing any other offense under this section, one
                  12               or more persons taking no active part in the hos-
                  13               tilities, including those placed hors de combat by
                  14               sickness, wounds, detention, or any other cause,
                  15               shall be guilty of a violation of this subsection. The
                  16               intent required for this offense precludes its applica-
                  17               bility with regard to collateral damage or to death,
                  18               damage, or injury incident to a lawful attack.
                  19                        ``(E) MUTILATION OR MAIMING.--Any person
                  20               who intentionally injures, or conspires or attempts to
                  21               injure, or injures whether intentionally or uninten-
                  22               tionally in the course of committing any other of-
                  23               fense under this section, one or more persons taking
                  24               no active part in the hostilities, including those
                  25               placed hors de combat by sickness, wounds, deten-


                                                       80
                    1              tion, or any other cause, by disfiguring the person
                    2              or persons by any mutilation thereof or by perma-
                    3              nently disabling any member, limb, or organ of his
                    4              body, without any legitimate medical or dental pur-
                    5              pose, shall be guilty of a violation of this subsection.
                    6              The intent required for this offense precludes its ap-
                    7              plicability with regard to collateral damage or to
                    8              death, damage, or injury incident to a lawful attack.
                    9                       ``(F) INTENTIONALLY CAUSING GREAT SUF-
                  10               FERING OR SERIOUS INJURY.--Any person who in-
                  11               tentionally causes, or conspires or attempts to cause,
                  12               serious, bodily injury to one or more persons taking
                  13               no active part in the hostilities, including those
                  14               placed hors de combat by sickness, wounds, deten-
                  15               tion, or any other cause, shall be guilty of a violation
                  16               of this subsection. The intent required for this of-
                  17               fense precludes its applicability with regard to collat-
                  18               eral damage or to death, damage, or injury incident
                  19               to a lawful attack. `Serious bodily injury' has the
                  20               meaning provided in 18 U.S.C. 113(b)(2).
                  21                        ``(G) RAPE.--Any person who forcibly or with
                  22               coercion or threat of force wrongfully invades, or
                  23               conspires or attempts to invade, the body of a per-
                  24               son by penetrating, however slightly, the anal or
                  25               genital opening of the victim with any part of the


                                                       81
                    1              body of the accused or with any foreign object shall
                    2              be guilty of a violation of this subsection.
                    3                       ``(H) SEXUAL ASSAULT OR ABUSE.--Any per-
                    4              son who forcibly or with coercion or threat of force
                    5              engages, or conspires or attempts to engage, in sex-
                    6              ual contact with one or more persons, or causes, or
                    7              conspires or attempts to cause, one or more persons
                    8              to engage in sexual contact, shall be guilty of a vio-
                    9              lation of this subsection. For purposes of this of-
                  10               fense, `sexual contact' has the meaning provided in
                  11               18 U.S.C. 2246(3).
                  12                        ``(I) TAKING HOSTAGES.--Any person who, hav-
                  13               ing knowingly seized or detained one or more per-
                  14               sons, threatens to kill, injure, or continue to detain
                  15               such person or persons with the intent of compelling
                  16               any nation, person other than the hostage, or group
                  17               of persons to act or refrain from acting as an ex-
                  18               plicit or implicit condition for the safety or release
                  19               of such person or persons, shall be guilty of a viola-
                  20               tion of this subsection. Any person who attempts to
                  21               engage or conspires to engage in this offense shall
                  22               also be guilty under this subsection.''.


                                                       82
                    1     SEC. 8. CONFORMING AMENDMENTS.
                    2              (a) Section 1004(b) of the Detainee Treatment Act
                    3 of 2005 (10 U.S.C. 801 note). is amended to conform with
                    4 this Act as follows--
                    5                       (1) by replacing ``may provide'' with ``shall pro-
                    6              vide'';
                    7                       (2) by adding ``or investigation'' after ``criminal
                    8              prosecution''; and
                    9                       (3) by adding ``whether before United States
                  10               courts or agencies, foreign courts or agencies, or
                  11               international courts or agencies,'' after ``described in
                  12               that subsection'';
                  13               (b) Section 1005 of the Detainee Treatment Act of
                  14 2005 (10 U.S.C. 801 note) is amended to conform with
                  15 this Act as follows--
                  16                        (1) by striking subsection (e)(3)(B) and renum-
                  17               bering subsections (e)(3)(C) and (e)(3)(D) as sub-
                  18               sections (e)(3)(B) and (e)(3)(C), respectively;
                  19                        (2) in subsection (e)(3)(A), by striking ``pursu-
                  20               ant to Military Commission Order No. 1, August 31,
                  21               2005 (or any successor military order)'' and insert-
                  22               ing ``by a military commission under chapter 47a of
                  23               title 10'';
                  24                        (3) in former subsection (e)(3)(C)(i), by strik-
                  25               ing ``pursuant to the military order'' and inserting
                  26               ``by a military commission'';


                                                       83
                    1                       (4) in former subsection (e)(3)(C)(ii), by strik-
                    2              ing ``pursuant to such military order'' and inserting
                    3              ``by such a military commission'';
                    4                       (5) in former subsection (e)(3)(D)(i) by striking
                    5              ``specified in the military order'' and inserting ``spec-
                    6              ified for a military commission'';
                    7                       (6) and in former subsection (e)(3)(C)(i), by
                    8              striking ``at Guantanamo Bay, Cuba''; and
                    9                       (7) in former subsection (e)(2)(b)(i) by replac-
                  10               ing ``the Department of Defense at Guantanamo
                  11               Bay, Cuba'' with ``United States''.
                  12               (c) Section 802 of title 10, United States Code, is
                  13 amended to conform with this Act by adding, ``(a)(13)
                  14 Lawful enemy combatants who violate the law of war.''
                  15               (d) Section 821 of title 10, United States Code, is
                  16 amended to conform with this Act by striking the phrase
                  17 ``by statute or the law of war''.
                  18               (e) Section 836 of title 10, United States Code, is
                  19 amended to conform with this Act as follows--in sub-
                  20 section (a), by replacing ``military commissions and other
                  21 military tribunals'' with ``and other military tribunals (ex-
                  22 cluding military commissions)''.
                  23      SEC. 9. RETROACTIVE APPLICATION.
                  24               This Act shall take effect on the date of the enact-
                  25 ment of this Act and shall apply retroactively, including


                                                        84
                    1 to any aspect of the detention, treatment, or trial of any
                    2 person detained at any time since September 11, 2001,
                    3 and to any claim or cause of action pending on or after
                    4 the date of the enactment of this Act.
                    5     SEC. 10. SEVERABILITY.
                    6              If any provision of this Act, or the application of a
                    7 provision to any person or circumstance, is held to be un-
                    8 constitutional, the remainder of this Act, and the applica-
                    9 tion of the provisions to any other person or circumstance,
                  10 shall not be affected thereby.

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