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
7
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.
11
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
12
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
13
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.
14
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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