Calendar No. 595
109th CONGRESS
2d Session
S. 3861
To facilitate bringing to justice terrorists and other unlawful
enemy combatants 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.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Bringing Terrorists to Justice Act of 2006'.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) For more than 10 years, the al Qaeda terrorist organization has waged
an unlawful war of violence and terror against the United States and its
allies. Al Qaeda was involved in the bombing of the World Trade Center
in New York City in 1993, the bombing of the United States Embassies in
Kenya and Tanzania in 1998, and the attack on the U.S.S. Cole in Yemen
in 2000. On September 11, 2001, al Qaeda launched the most deadly foreign
attack on United States soil in history. Nineteen al Qaeda operatives
hijacked four commercial aircraft and piloted them into the World Trade
Center Towers in New York City and the headquarters of the United States
Department of Defense at the Pentagon, and downed United Airlines Flight
93. The attack destroyed the Towers, severely damaged the Pentagon, and
resulted in the deaths of approximately 3,000 innocent people.
(2) Following the attacks on the United States on September 11th, Congress
recognized the existing hostilities with al Qaeda and affiliated terrorist
organizations and, by the Authorization for the Use of Military Force
Joint Resolution (Public Law 107-40), recognized that `the President has
authority under the Constitution to take action to deter and prevent acts
of international terrorism against the United States' and authorized the
President `to use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2001 . .
. in order to prevent any future acts of international terrorism against
the United States by such nations, organizations or persons.'.
(3) The President's authority to convene military commissions arises from
the Constitution's vesting in the President of the executive power and
the power of Commander in Chief of the Armed Forces. As the Supreme Court
of the United States recognized in Madsen v. Kinsella, 343 U.S. 341, 346-48
(1952), `[s]ince our nation's earliest days, such commissions have been
constitutionally recognized agencies for meeting many urgent governmental
responsibilities related to war. . . . They have taken many forms and
borne many names. Neither their procedure nor their jurisdiction has been
prescribed by statute. It has been adapted in each instance to the need
that called it forth.'.
(4) In exercising the authority vested in the President by the Constitution
and laws of the United States, including the Authorization for Use of
Military Force Joint Resolution, and in accordance with the law of war,
the President has detained enemy combatants in the course of this armed
conflict and issued the Military Order of November 13, 2001, to govern
the `Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism'. This Order authorized the Secretary of Defense to
establish military commissions to try individuals subject to the Order
for any offenses triable by military commission that such individuals
are alleged to have committed.
(5) The Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), held
that the military commissions established by the Department of Defense
under the President's Military Order of November 13, 2001, were not consistent
with certain aspects of United States domestic law. The Congress may by
law, and does by enactment of this statute, eliminate any deficiency of
statutory authority to facilitate bringing terrorists with whom the United
States is engaged in armed conflict to justice for violations of the law
of war and other offenses triable by military commissions. The prosecution
of such individuals by military commissions established and conducted
consistent with this Act fully complies with the Constitution, the laws
of the United States, treaties to which the United States is a party,
and the law of war.
(6) The use of military commissions is particularly important in this
context because other alternatives, such as the use of courts-martial,
generally are impracticable. The terrorists with whom the United States
is engaged in armed conflict have demonstrated a commitment to the destruction
of the United States and its people, to the violation of the law of war,
and to the abuse of American legal processes. In a time of ongoing armed
conflict, it generally is neither practicable nor appropriate for combatants
like al Qaeda terrorists to be tried before tribunals that include all
of the procedures associated with courts-martial.
(7) Many procedures for courts-martial would not be practicable in trying
the unlawful enemy combatants for whom this Act provides for trial by
military commission. For instance, court martial proceedings would in
certain circumstances--
(A) compel the Government to share classified information with the accused,
even though members of al Qaeda cannot be trusted with our Nation's
secrets and it would not be consistent with the national security of
the United States to provide them with access to classified information;
(B) exclude the use of hearsay evidence even though such evidence often
will be the best and most reliable evidence that the accused has committed
a war crime. For example, many witnesses in military commission trials
are likely to be foreign nationals who are not amenable to process or
may be precluded for national security reasons from entering the United
States or Guantanamo Bay to testify. Other witnesses may be unavailable
because of military necessity, incarceration, injury, or death. In short,
applying the hearsay rules from the Manual for Courts-Martial or from
the Federal Rules of Evidence would make it virtually impossible to
bring terrorists to justice for their violations of the law of war;
(C) specify speedy trials and technical rules for sworn and authenticated
statements when, due to the exigencies of wartime, the United States
cannot safely require members of the armed forces to gather evidence
on the battlefield, including civilian eyewitness testimony, as though
they were police officers. Nor can the United States divert members
from the front lines and their duty stations to attend military commission
proceedings. Therefore, strict compliance with such rules for evidence
gathered on the battlefield would be impracticable, given the preeminent
focus on military operations and the chaotic nature of combat.
(8) The exclusive judicial review for which this Act, and the Detainee
Treatment Act of 2005, provides is without precedent in the history of
armed conflicts involving the United States, exceeds the scope of judicial
review historically provided for by military commissions, and is channeled
in a manner appropriately tailored to--
(A) the circumstances of the conflicts between the United States and
international terrorist organizations; and
(B) the need to ensure fair treatment of those detained as enemy combatants,
to minimize the diversion of members of the armed forces from other
wartime duties, and to protect the national security of the United States.
(9) In early 2002, as memorialized in a memorandum dated February 7, 2002,
the President determined that common Article 3 of the Geneva Conventions
did not apply with respect to the United States conflict with al Qaeda
because al Qaeda was not a party to those treaties and the conflict with
al Qaeda was an armed conflict of an international character. That was
the interpretation of the United States prior to the Supreme Court's decision
in Hamdan on June 29, 2006. Hamdan's statement to the contrary makes it
appropriate to clarify the standards imposed by common Article 3. This
Act makes clear that the prohibitions against cruel, inhuman, and degrading
treatment found in the Detainee Treatment Act of 2005 fully satisfy the
obligations of the United States with respect to the standards for detention
and treatment established by section 1 of common Article 3, except for
those obligations arising under paragraphs (b) and (d). In addition, the
Act makes clear that the Geneva Conventions are not a source of judicially
enforceable individual rights, thereby reaffirming that enforcement of
the obligations imposed by the Conventions is a matter between the nations
that are parties to them.
SEC. 3. AUTHORIZATION FOR MILITARY COMMISSIONS.
(a) IN GENERAL- The President is authorized to establish military commissions
for violations of the law of war and other offenses triable by military
commissions as provided in section 4 of this Act (chapter 47A of title 10).
(b) CONSTRUCTION- The authority granted in subsection (a) shall not be construed
to limit the authority of the President under the Constitution of the United
States or the laws thereof to establish military commissions on the battlefield,
in occupied territories, or in other armed conflicts should circumstances
so require.
(c) SCOPE OF PUNISHMENT AUTHORITY- A military commission established pursuant
to subsection (a) shall have authority to impose upon any person found guilty
after a proceeding under this Act a sentence that is appropriate to the
offense or offenses for which there was a finding of guilt, which sentence
may include death where authorized by this Act, imprisonment for life or
a term of years, payment of a fine or restitution, or such other lawful
punishment or condition of punishment as the commission shall determine
to be proper.
(d) EXECUTION OF PUNISHMENT- The Secretary of Defense shall be authorized
to carry out a sentence of punishment decreed by a military commission pursuant
to subsection (a) in accordance with such procedures as the Secretary may
prescribe.
(e) Annual Report on Trials by Military Commission-
(1) ANNUAL REPORT REQUIRED- Not later than December 31 each year, the
Secretary of Defense shall submit to the Armed Services Committees of
the House of Representatives and the Senate an annual report on the conduct
of trials by military commissions established pursuant to subsection (a)
during such year.
(2) FORM- Each such report shall be submitted in unclassified form, with
classified annex, if necessary and consistent with national security.
SEC. 4. MILITRY COMMISSIONS.
(a) Military Commissions-
(1) IN GENERAL- Subtitle A of title 10, United States Code, is amended
by inserting after chapter 47 the following new chapter:
`CHAPTER 47A--MILITARY COMMISSIONS
`SUBCHAPTER I--GENERAL PROVISIONS
`948b. Military commissions generally.
`948c. Persons subject to military commissions.
`948d. Jurisdiction of military commissions.
`Sec. 948a. Definitions
`(1) ALIEN- The term `alien' means an individual who is not a citizen
of the United States.
`(2) CLASSIFIED INFORMATION- The term `classified information' means the
following--
`(A) Any information or material that has been determined by the United
States Government pursuant to statute, Executive order, or regulation
to require protection against unauthorized disclosure for reasons of
national security.
`(B) Any restricted data, as that term is defined in section 11 y. of
the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).
`(3) COMMISSION- The term `commission' means a military commission established
pursuant to chapter 47A of title 10, United States Code.
`(4) CONVENING AUTHORITY- The term `convening authority' shall be the
Secretary of Defense or his designee.
`(5) LAWFUL ENEMY COMBATANT- The term `lawful enemy combatant' means an
individual determined by or under the authority of the President or Secretary
of Defense (whether on an individualized or collective basis) to be: (i)
a member of the regular forces of a State party engaged in hostilities
against the United States or its co-belligerents; (ii) a member of a militia,
volunteer corps, or organized resistance movement belonging to a State
party engaged in such hostilities, which are under responsible command,
wear a fixed distinctive sign recognizable at a distance, carry their
arms openly, and abide by the law of war; or (iii) a member of a regular
armed forces who professes allegiance to a government engaged in such
hostilities, but not recognized by the United States.
`(6) SECRETARY- The term `Secretary' means the Secretary of Defense.
`(7) UNLAWFUL ENEMY COMBATANT- The term `unlawful enemy combatant' means
an individual determined by or under the authority of the President or
the Secretary of Defense--
`(A) to be part of or affiliated with a force or organization--including
but not limited to al Qaeda, the Taliban, any international terrorist
organization, or associated forces--engaged in hostilities against the
United States or its co-belligerents; in violation of the law of war;
`(B) to have committed a hostile act in aid of such a force or organization
so engaged; or
`(C) to have supported hostilities in aid of such a force or organization
so engaged.
`This definition includes any individual determined by a Combatant Status
Review Tribunal, before the effective date of this Act, to have been properly
detained as an enemy combatant, but excludes any alien determined by the
President or the Secretary of Defense (whether on an individualized or
collective basis), or by any competent tribunal established under their
authority, to be (i) a lawful enemy combatant (including a prisoner of
war), or (ii) a protected person whose trial by these military commissions
would be inconsistent with Articles 64-76 of the Geneva Convention Relative
to the Protection of Civilian Persons in Time of War of August 12, 1949.
For purposes of this section, the term `protected person' refers to the
category of persons described in Article 4 of the Geneva Convention Relative
to the Protection of Civilian Persons in Time of War of August 12, 1949.
`(8) GENEVA CONVENTIONS- The term `Geneva Conventions' means the international
conventions signed at Geneva on August 12, 1949, including common Article
3.
`Sec. 948b. Military commissions generally
`(a) PURPOSE- This chapter codifies and establishes procedures governing
the use of military commissions to try unlawful enemy combatants for violations
of the law of war and other offenses triable by military commissions. Although
military commissions traditionally have been constituted by order of the
President, the decision of the Supreme Court in Hamdan v. Rumsfeld makes
it both necessary and appropriate to codify procedures for military commissions
as set forth herein.
`(b) RULE OF CONSTRUCTION- The procedures for military commissions set forth
in this chapter are modeled after the procedures established for courts-martial
in the Uniform Code of Military Justice. However, it would be neither desirable
nor practicable to try unlawful enemy combatants by court-martial procedures.
The trial of such persons by military commission presents new challenges
that require that interpretations of this Act not be unduly influenced by
the rules and procedures developed for courts-martial. Therefore, no construction
or application of chapter 47 of this title shall be binding in the construction
or application of this chapter.
`(c) Alien unlawful enemy combatants may be tried for violations of the
law of war and other offenses triable by military commissions committed
against the United States or its co-belligerents before, on, or after September
11, 2001.
`(d) A military commission established under this chapter is a regularly
constituted court, affording all the necessary `judicial guarantees which
are recognized as indispensable by civilized peoples' for purposes of common
Article 3 of the Geneva Conventions.
`Sec. 948c. Persons subject to military commissions
`Alien unlawful enemy combatants, as defined in section 948a of this title,
shall be subject to trial by military commissions as set forth in this chapter.
`Sec. 948d. Jurisdiction of military commissions
`(a) Military commissions shall have jurisdiction to try any offense made
punishable under this chapter, when committed by an alien unlawful enemy
combatant. Military commissions shall not have jurisdiction over lawful
enemy combatants. Lawful enemy combatants who violate the law of war are
subject to chapter 47 of Title 10, United States Code. Courts-martial established
under chapter 47 shall have jurisdiction to try a lawful enemy combatant
for any offense made punishable under this chapter.
`(b) Military commissions shall not have jurisdiction over any individual
determined by the President or the Secretary of Defense (whether on an individualized
or collective basis), or by any competent tribunal established under their
authority, to be a `protected person' whose trial by these military commissions
would be inconsistent with Articles 64-76 of the Geneva Convention Relative
to the Protection of Civilian Persons in Time of War of August 12, 1949.
Such persons shall be tried in courts-martial or other tribunals consistent
with their status under the Geneva Conventions. For purposes of this section,
the term `protected person' refers to the category of persons described
in Article 4 of the Geneva Convention Relative to the Protected of Civilian
Persons in Time of War of August 12, 1949.
`(c) Military commissions may, under such limitations as the Secretary of
Defense may prescribe, adjudge any punishment not forbidden by this chapter,
including the penalty of death where authorized by this chapter.
`SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS
`948h. Who may convene military commissions.
`948i. Who may serve on military commissions.
`948j. Military judge of a military commission.
`948k. Detail of trial counsel and defense counsel.
`948l. Detail or employment of reporters and interpreters.
`948m. Number of members; excuse of members; absent and additional members.
`Sec. 948h. Who may convene military commissions
`(a) The Secretary may issue orders convening military commissions to try
individuals under this chapter.
`(b) The Secretary may delegate his authority to convene military commissions
or to promulgate any regulations under this chapter.
`Sec. 948i. Who may serve on military commissions
`(a) IN GENERAL- Any commissioned officer of the United States armed forces
on active duty is eligible to serve on a military commission. Eligible commissioned
officers shall include, without limitation, reserve personnel on active
duty, National Guard personnel on active duty in Federal service, and retired
personnel recalled to active duty.
`(b) DETAIL OF MEMBERS- When convening a commission, the convening authority
shall detail as members thereof such members of the armed forces as, in
his opinion, are fully qualified for the duty by reason of age, education,
training, experience, length of service, and judicial temperament. No member
of an armed force shall be eligible to serve as a member of a commission
when he is the accuser or a witness for the prosecution or has acted as
an investigator or counsel in the same case.
`(c) EXCUSE OF MEMBERS- Before a commission is assembled for the trial of
a case, the convening authority may excuse a member of the commission from
participating in the case.
`Sec. 948j. Military judge of a military commission
`(a) DETAIL OF A MILITARY JUDGE- A military judge shall be detailed to each
commission. The Secretary shall prescribe regulations providing for the
manner in which military judges are detailed to such commissions. The military
judge shall preside over each commission to which he has been detailed.
The convening authority shall not prepare or review any report concerning
the effectiveness, fitness, or efficiency of the military judge so detailed
relating to his performance duty as a military judge.
`(b) ELIGIBILITY- A military judge shall be a commissioned officer of the
armed forces who is a member of the bar of a Federal court or a member of
the bar of the highest court of a State, and who is certified to be qualified
for duty as a military judge by the Judge Advocate General of the armed
force of which such military judge is a member. A commissioned officer who
is certified to be qualified for duty as a military judge of a commission
may perform such other duties as are assigned to him by or with the approval
of that Judge Advocate General or his designee.
`(c) INELIGIBILITY OF CERTAIN INDIVIDUALS- No person is eligible to act
as military judge in any case in which he is the accuser or a witness or
has acted as investigator or a counsel in the same case.
`(d) CONSULTATION WITH MEMBERS; INELIGIBILITY TO VOTE- Except as provided
in section 949d of this title, the military judge detailed to the commission
may not consult with the members of the commission except in the presence
of the accused, trial counsel, and defense counsel, nor may he vote with
the members of the commission.
`Sec. 948k. Detail of trial counsel and defense counsel
`(a) Detail of Counsel Generally-
`(1) Trial counsel and military defense counsel shall be detailed for
each commission.
`(2) Assistant trial counsel and assistant and associate military defense
counsel may be detailed for each commission.
`(3) Military defense counsel shall be detailed as soon as practicable
after the swearing of charges against the person accused.
`(4) The Secretary shall prescribe regulations providing for the manner
in which counsel are detailed for military commissions and for the persons
who are authorized to detail counsel for such military commissions.
`(b) TRIAL COUNSEL- Subject to subsection (d), trial counsel detailed for
a military commission under this chapter must be--
`(1) a judge advocate (as that term is defined in section 801 of this
title) who is--
`(A) a graduate of an accredited law school or is a member of the bar
of a Federal court or of the highest court of a State; and
`(B) certified as competent to perform duties as trial counsel before
general courts-martial by the Judge Advocate General of the armed force
of which he is a member; or
`(A) a member of the bar of a Federal court or of the highest court
of a State; and
`(B) otherwise qualified to practice before the commission pursuant
to regulations prescribed by the Secretary.
`(c) MILITARY DEFENSE COUNSEL- Subject to subsection (d), military defense
counsel detailed for a military commission under this chapter must be a
judge advocate (as so defined) who is--
`(1) a graduate of an accredited law school or a member of the bar of
a Federal court or of the highest court of a State; and
`(2) certified as competent to perform duties as defense counsel before
general courts-martial by the Judge Advocate General of the armed force
of which he is a member.
`(d) INELIGIBILITY OF CERTAIN INDIVIDUALS- No person who has acted as an
investigator, military judge, or member of a military commission under this
chapter may act later as trial counselor or defense counsel in the same
case. No person who has acted for the prosecution may act later in the same
case for the defense, nor may any person who has acted for the defense act
later in the same case for the prosecution.
`Sec. 948l. Detail or employment of reporters and interpreters
`(a) COURT REPORTERS- Under such regulations as the Secretary may prescribe,
the convening authority of a military commission shall detail or employ
qualified court reporters, who shall record the proceedings of and testimony
taken before that commission.
`(b) INTERPRETERS- Under like regulations the convening authority may detail
or employ interpreters who shall interpret for the commission, and, as necessary,
for trial counsel and defense counsel.
`(c) TRANSCRIPT; RECORD- The transcript shall be under the control of the
convening authority, which is responsible for preparing the record of the
proceedings.
`Sec. 948m. Number of members; excuse of members; absent and additional
members
`(a) NUMBER OF MEMBERS- (1) A military commission under this chapter shall,
except as provided in paragraph (2), have at least five members.
`(2) In a case in which the death penalty is sought, the military commission
shall have the number of members prescribed by section 949m(c) of this title.
`(b) Excuse of Members- No member of a military commission may be absent
or excused after the commission has been assembled for the trial of the
accused unless excused--
`(1) as a result of challenge;
`(2) by the military judge for physical disability or other good cause;
or
`(3) by order of the convening authority for good cause.
`(c) ABSENT AND ADDITIONAL MEMBERS- Whenever a military commission is reduced
below the requisite number of members, the trial may not proceed unless
the convening authority details new members sufficient to provide not less
than the requisite number. The trial may proceed with the new members present
after the recorded evidence previously introduced before the members of
the commission has been read to the commission in the presence of the military
judge, the accused (except as provided by section 949d of this title), and
counsel for both sides.
`SUBCHAPTER III--PRE-TRIAL PROCEDURE
`948q. Charges and specifications.
`948r. Compulsory self-incrimination prohibited; statements obtained by
torture.
`948s. Service of charges.
`Sec. 948q. Charges and specifications
`(a) CHARGES AND SPECIFICATIONS- Charges and specifications against an accused
shall be signed by a person subject to chapter 47 of this title under oath
before a commissioned officer of the armed forces authorized to administer
oaths and shall state--
`(1) that the signer has personal knowledge of, or reason to believe,
the matters set forth therein; and
`(2) that they are true in fact to the best of his knowledge and belief.
`(b) NOTICE TO ACCUSED- Upon the swearing of the charges and specifications
in accordance with subsection (a), the accused shall be informed of the
charges and specifications against him as soon as practicable.
`Sec. 948r. Compulsory self-incrimination prohibited; statements obtained
by torture
`(a) IN GENERAL- No person shall be required to testify against himself
at a commission proceeding.
`(b) STATEMENTS OBTAINED BY TORTURE- A statement obtained by use of torture,
as defined in 18 U.S.C. 2340, whether or not under color of law, shall not
be admissible against the accused, except against a person accused of torture
as evidence the statement was made.
`(c) STATEMENTS NOT OBTAINED BY TORTURE- No otherwise admissible statement
may be received in evidence, including statements allegedly obtained by
coercion, if the military judge finds that the circumstances under which
the statement was made render it unreliable or lacking in probative value.
`Sec. 948s. Service of charges
`The trial counsel assigned to the case shall cause to be served upon the
accused and counsel a copy of the charges upon which trial is to be had
in English and, if appropriate, in another language that the accused understands,
sufficiently in advance of trial to prepare a defense.
`SUBCHAPTER IV--TRIAL PROCEDURE
`949b. Unlawfully influencing action of military commission.
`949c. Duties of trial counsel and defense counsel.
`949i. Pleas of the accused.
`949j. Opportunity to obtain witnesses and other evidence.
`949k. Defense of lack of mental responsibility.
`949l. Voting and rulings.
`949m. Number of votes required.
`949n. Military commission to announce action.
`Sec. 949a. Rules
`(a) PROCEDURES- Pretrial, trial, and post-trial procedures, including elements
and modes of proof, for cases triable by military commission under this
chapter shall be prescribed by the Secretary, but may not be contrary to
or inconsistent with this chapter.
`(b) RULES OF EVIDENCE- Subject to such exceptions and limitations as the
Secretary may provide by regulation, evidence in a military commission shall
be admissible if the military judge determines that the evidence would have
probative value to a reasonable person.
`(c) HEARSAY EVIDENCE- Hearsay evidence is admissible, unless the military
judge finds that the circumstances render it unreliable or lacking in probative
value, provided that the proponent of the evidence makes the evidence known
to the adverse party in advance of trial or hearing.
`The military judge shall exclude any evidence the probative value of which
is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the members of the commission, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.
`Sec. 949b. Unlawfully influencing action of military commission
`(a) IN GENERAL- (1) No authority convening a military commission under
this chapter may censure, reprimand, or admonish the commission or any member,
military judge, or counsel thereof, with respect to the findings or sentence
adjudged by the commission, or with respect to any other exercises of its
or his functions in the conduct of the proceedings.
`(2) No person may attempt to coerce or, by any unauthorized means, influence
the action of a commission or any member thereof, in reaching the findings
or sentence in any case, or the action of any convening, approving, or reviewing
authority with respect to his judicial acts.
`(3) The foregoing provisions of this subsection shall not apply with respect
to--
`(A) general instructional or informational courses in military justice
if such courses are designed solely for the purpose of instructing members
of a command in the substantive and procedural aspects of military commissions;
or
`(B) statements and instructions given in open proceedings by the military
judge or counsel.
`(b) PROHIBITION ON CONSIDERATION OF ACTIONS ON COMMISSION IN EVALUATION
OF FITNESS- In the preparation of an effectiveness, fitness, or efficiency
report or any other report or document used in whole or in part for the
purpose of determining whether a commissioned officer of the armed forces
is qualified to be advanced, in grade, or in determining the assignment
or transfer of any such officer or in determining whether any such officer
should be retained on active duty, no person may--
`(1) consider or evaluate the performance of duty of any member of a military
commission under this chapter; or
`(2) give a less favorable rating or evaluation to any commissioned officer
because of the zeal with which such officer, in acting as counsel, represented
any accused before a military commission under this chapter.
`Sec. 949c. Duties of trial counsel and defense counsel
`(a) TRIAL COUNSEL- The trial counsel of a military commission shall prosecute
in the name of the United States.
`(b) DEFENSE COUNSEL- (1) The accused shall be represented in his defense
before a military commission as provided in this subsection.
`(2) The accused shall be represented by military counsel detailed under
section 948k of this title.
`(3) The accused may be represented by civilian counsel if retained by him,
provided that civilian counsel--
`(A) is a United States citizen;
`(B) is admitted to the practice of law in a State, district, territory,
or possession of the United States, or before a Federal court;
`(C) has not been the subject of any sanction of disciplinary action by
any court, bar, or other competent governmental authority for relevant
misconduct;
`(D) has been determined to be eligible for access to information classified
at the level Secret or higher; and
`(E) has signed a written agreement to comply with all applicable regulations
or instructions for counsel, including any rules of court for conduct
during the proceedings.
`Civilian defense counsel shall protect any classified information received
during the course of their representation of the accused in accordance with
all applicable law governing the protection of classified information, and
shall not divulge such information to any person not authorized to receive
it.
`(4) If the accused is represented by civilian counsel, military counsel
detailed shall act as associate counsel.
`(5) The accused is not entitled to be represented by more than one military
counsel. However, the person authorized under regulations prescribed under
section 948k of this title to detail counsel in his sole discretion may
detail additional military counsel.
`(6) Defense counsel may cross-examine each witness for the prosecution
who testifies before the commission.
`Sec. 949d. Sessions
`(a) SESSIONS WITHOUT PRESENCE OF MEMBERS- (1) At any time after the service
of charges which have been referred for trial by military commission, the
military judge may call the commission into session without the presence
of the members for the purpose of--
`(A) hearing and determining motions raising defenses or objections which
are capable of determination without trial of the issues raised by a plea
of not guilty;
`(B) hearing and ruling upon any matter which may be ruled upon by the
military judge under this chapter, whether or not the matter is appropriate
for later consideration or decision by the members of the commission;
`(C) if permitted by regulations of the Secretary, receiving the pleas
of the accused; and
`(D) performing any other procedural function which may be performed by
the military judge under this chapter or under rules prescribed pursuant
to section 949a of this title and which does not require the presence
of the members of the commission.
`(2) Except as provided in subsection (e), any proceedings under paragraph
(1) shall be conducted in the presence of the accused, defense counsel,
and trial counsel, and shall be made part of the record.
`(b) PROCEEDINGS IN PRESENCE OF ACCUSED- Except as provided in subsections
(c) and ( e), all proceedings of a military commission under this chapter
shall be in the presence of the accused, defense counsel, and trial counsel,
and shall be made a part of the record.
`(c) DELIBERATIONS OR VOTE OF MEMBERS- When the members of the commission
deliberate or vote, only the members may be present.
`(d) PUBLIC PROCEEDINGS- (1) The military commission shall hold open and
public proceedings.
`(2) The military judge may close to the public all or a part of the proceedings
of a military commission under this chapter only upon making a specific
finding that such closure is necessary to--
`(A) protect information the disclosure of which could reasonably be expected
to cause identifiable damage to the public interest or the national security,
including intelligence or law enforcement sources, methods, or activities;
or
`(B) ensure the physical safety of individuals.
`(e) LIMITED EXCLUSION OF THE ACCUSED FOR THE PROTECTION OF CLASSIFIED INFORMATION-
(1) The military judge may, subject to the provisions of this subsection,
permit the admission in a military commission under this chapter of classified
information outside the presence of the accused.
`(2) The military judge shall not exclude the accused from any portion of
the proceeding except upon a specific finding that extraordinary circumstances
exist such that--
`(A) the exclusion of the accused--
`(i) is necessary to protect classified information the disclosure of
which to the accused could reasonably be expected to cause identifiable
damage to the national security, including intelligence or law enforcement
sources, methods, or activities; or
`(ii) is necessary to ensure the physical safety of individuals; or
`(iii) is necessary to prevent disruption of the proceedings by the
accused; and
`(B) the exclusion of the accused--
`(i) is no broader than necessary; and
`(ii) will not deprive the accused of a full and fair trial.
`(3)(A) A finding under paragraph (2) may be based upon a presentation,
including an ex parte or in camera presentation, by either trial counselor
defense counsel.
`(B) Before trial counsel may make a presentation described in subparagraph
(A) requesting the admission of classified evidence outside the presence
of the accused, the head of the executive or military department or governmental
agency which has control over the matter (after personal consideration by
that officer) shall certify in writing to the military judge that--
`(i) the disclosure of such classified information to the accused could
reasonably be expected to prejudice the national security; and
`(ii) such evidence has been declassified to the maximum extent possible,
consistent with the requirements of national security.
`(4)(A) No evidence shall be admitted if the accused is not present for
its admission or the evidence is not otherwise provided to the accused,
unless the evidence is classified information and the military judge makes
a specific finding that--
`(i) consideration of the evidence by the commission, without the presence
of the accused, is warranted; and
`(ii) admission of an unclassified summary or redacted version of that
evidence would not be an adequate substitute and, in the case of testimony,
alternative methods to obscure the identity of the witness are not adequate;
and
`(iii) admission of the evidence would not deprive the accused of a full
and fair trial.
`(B) If the accused is excluded from a portion of the proceeding, the accused
shall be provided with a redacted transcript of the proceeding and, to the
extent practicable, an unclassified summary of any evidence introduced.
Under no circumstances shall such a summary or redacted transcript compromise
the interests warranting the exclusion of the accused under this subsection.
`(5)(A) Military defense counsel shall be present and able to participate
in all trial proceedings, and shall be given access to all evidence admitted
under subparagraph (4).
`(B) Civilian defense counsel shall be permitted to be present and to participate
in all trial proceedings, and shall be given access to evidence admitted
under sub-paragraph (4), provided that civilian defense counsel has obtained
the necessary security clearances and that such presence and access are
consistent with regulations that the Secretary may prescribe to protect
classified information.
`(C) Notwithstanding any other provision of law, any defense counsel who
receives classified information admitted pursuant to subparagraph (4) shall
not be obligated to, and may not, disclose that evidence to the accused.
`(f) Admission of Statements of Accused- (1) Notwithstanding any other provision
in this chapter, no statement made by the accused during an interrogation,
even if otherwise classified, may be admitted into evidence in a military
commission under this chapter unless the accused is present for its admission
or the evidence is otherwise provided to the accused.
`(2) For purposes of this subsection, a `statement' is a statement communicated
knowingly and directly by the accused in response to questioning by foreign
or United States military, intelligence, or criminal investigative personnel.
This paragraph shall not be construed to prevent the redaction of intelligence
sources or methods, which do not constitute statements of the accused, from
any document provided to the accused or admitted into evidence.
`Sec. 949e. Continuances
`The military judge may, for reasonable cause, grant a continuance to any
party for such time, and as often, as may appear to be just.
`Sec. 949f. Challenges
`(a) Challenges Authorized- The military judge and members of the commission
may be challenged by the accused or the trial counsel for cause stated to
the commission. The military judge shall determine the relevance and validity
of the challenges for cause, and may not receive a challenge to more than
one person at a time. Challenges by the trial counsel shall ordinarily be
presented and decided before those by the accused are offered.
`(b) Peremptory Challenges- Each accused and the trial counsel is entitled
to one peremptory challenge, but the military judge may not be challenged
except for cause.
`(c) Challenges Against Additional Members- Whenever additional members
are detailed to the court, and after any challenges for cause against such
additional members are presented and decided each accused and the trial
counsel are entitled to one peremptory challenge against members not previously
subject to peremptory challenge.
`Sec. 949g. Oaths
`(a) In General- (1) Before performing their respective duties, military
judges, members of commissions, trial counsel, defense counsel, reporters,
and interpreters shall take an oath to perform their duties faithfully.
`(2) The form of the oath required by paragraph (1), the time and place
of the taking thereof, the manner of recording the same, and whether the
oath shall be taken for all cases in which these duties are to be performed
or for a particular case, shall be as prescribed in regulations of the Secretary.
These regulations may provide that--
`(A) an oath to perform faithfully duties as a military judge, trial counsel,
or defense counsel, may be taken at any time by any judge advocate or
other person certified to be qualified or competent for duty; and
`(B) if such an oath is taken it need not again be taken at the time the
judge advocate, or other person is detailed to that duty.
`(b) WITNESSES- Each witness before a military commission under this chapter
shall be examined on oath.
`(c) OATH DEFINED- As used in this section, `oath' includes an affirmation.
`Sec. 949h. Former jeopardy
`(a) IN GENERAL- No person may, without his consent, be tried by a commission
a second time for the same offense.
`(b) SCOPE OF TRIAL- No proceeding in which the accused has been found guilty
by military commission upon any charge or specification is a trial in the
sense of this section until the finding of guilty has become final after
review of the case has been fully completed.
`Sec. 949i. Pleas of the accused
`(a) PLEA OF NOT GUILTY- If an accused after a plea of guilty sets up matter
inconsistent with the plea, or if it appears that he has entered the plea
of guilty through lack of understanding of its meaning and effect, or if
he fails or refuses to plead, a plea of not guilty shall be entered in the
record, and the commission shall proceed as though he had pleaded not guilty.
`(b) FINDING OF GUILT AFTER GUILTY PLEA- With respect to any charge or specification
to which a plea of guilty has been made by the accused and accepted by the
military judge, a finding of guilty of the charge or specification may be
entered immediately without a vote. This finding shall constitute the finding
of the commission unless the plea of guilty is withdrawn prior to announcement
of the sentence, in which event the proceedings shall continue as though
the accused had pleaded not guilty.
`Sec. 949j. Opportunity to obtain witnesses and other evidence
`(a) IN GENERAL- (1) Defense counsel in a military commission under this
chapter shall have a reasonable opportunity to obtain witnesses and other
evidence, including evidence in the possession of the United States, as
specified in regulations prescribed by the Secretary.
`(2) Process issued in military commissions to compel witnesses to appear
and testify and to compel the production of other evidence--
`(A) shall be similar to that which courts of the United States having
criminal jurisdiction may lawfully issue; and
`(B) shall run to any place where the United States shall have jurisdiction
thereof.
`(b) TREATMENT OF CERTAIN ITEMS- The military judge in a military commission
under this chapter may, upon a sufficient showing, authorize trial counsel
in making documents available to the defense through discovery conducted
pursuant to such rules as the Secretary shall prescribe--
`(1) to delete specified items of classified information from such documents;
`(2) to substitute an unclassified summary of the information for such
classified documents; or
`(3) to substitute an unclassified statement admitting relevant facts
that classified information would tend to prove.
`(c) DISCLOSURE OF EXCULPATORY EVIDENCE- (1) As soon as practicable, trial
counsel in a military commission under this chapter shall disclose to the
defense the existence of any evidence known to trial counsel that reasonably
tends to exculpate the accused.
`(2) Exculpatory evidence that is classified may be provided solely to defense
counsel, and not the accused, after in camera review by the military judge.
`(3) Before classified evidence may be withheld from the accused under this
subsection, the executive or military department or governmental agency
which has control over the matter shall ensure and shall certify in writing
to the military judge that the disclosure of such evidence to the accused
could reasonably be expected to prejudice the national security and that
such evidence has been declassified to the maximum extent possible, consistent
with the requirements of national security.
`(4) Any classified exculpatory evidence that is not disclosed to the accused
under this subsection--
`(A) shall be provided to military defense counsel; and
`(B) shall be provided to civilian defense counsel, provided that civilian
defense counsel has obtained the necessary security clearances and access
to such evidence is consistent with regulations that the Secretary may
prescribe to protect classified information; and
`(C) shall be provided to the accused in a redacted or summary form, if
it is possible to do so without compromising intelligence sources, methods,
or activities, or other national security interests.
`(5) Notwithstanding any other provision of law, any defense counsel who
receives evidence under this subsection shall not be obligated to, and may
not, disclose that evidence to the accused.
`Sec. 949k. Defense of lack of mental responsibility
`(a) AFFIRMATIVE DEFENSE- It is an affirmative defense in a trial by military
commission that, at the time of the commission of the acts constituting
the offense, the accused, as a result of a severe mental disease or defect,
was unable to appreciate the nature and quality or the wrongfulness of the
acts. Mental disease or defect does not otherwise constitute a defense.
`(b) BURDEN OF PROOF- The accused has the burden of proving the defense
of lack of mental responsibility by clear and convincing evidence.
`(c) FINDINGS FOLLOWING ASSERTION OF DEFENSE- Whenever lack of mental responsibility
of the accused with respect to an offense is properly at issue, the military
judge shall instruct the members of the commission as to the defense of
lack of mental responsibility under this section and shall charge them to
find the accused--
`(3) not guilty only by reason of lack of mental responsibility.
`(d) MAJORITY VOTE REQUIRED FOR FINDING- The accused shall be found not
guilty only by reason of lack of mental responsibility under subsection
(c)(3) only if a majority of the members of the commission at the time the
vote is taken determines that the defense of lack of mental responsibility
has been established.
`Sec. 949l. Voting and rulings
`(a) VOTE BY SECRET WRITTEN BALLOT- Voting by members of a military commission
on the findings and on the sentence shall be by secret written ballot.
`(b) RULINGS- (1) The military judge shall rule upon all questions of law,
including the admissibility of evidence, and all interlocutory questions
arising during the proceedings.
`(2) Any such ruling made by the military judge upon any question of law
or any interlocutory question other than the factual issue of mental responsibility
of the accused is conclusive and constitutes the ruling of the commission.
However, the military judge may change his ruling at any time during the
trial.
`(c) INSTRUCTIONS PRIOR TO VOTE- Before a vote is taken of the findings,
the military judge shall, in the presence of the accused and counsel, instruct
the members of the commission as to the elements of the offense and charge
them--
`(1) that the accused must be presumed to be innocent until his guilt
is established by legal and competent evidence beyond reasonable doubt;
`(2) that in the case being considered, if there is a reasonable doubt
as to the guilt of the accused, the doubt must be resolved in favor of
the accused and he must be acquitted;
`(3) that, if there is reasonable doubt as to the degree of guilt, the
finding must be in a lower degree as to which there is no reasonable doubt;
and
`(4) that the burden of proof to establish the guilt of the accused beyond
a reasonable doubt is upon the United States.
`Sec. 949m. Number of votes required
`(a) CONVICTION- No person may be convicted of any offense, except as provided
in section 949i(b) of this title or by concurrence of two-thirds of the
members present at the time the vote is taken.
`(b) SENTENCES- (1) Except. as provided in paragraphs (2) and (3), sentences
shall be determined by a military commission by the concurrence of two-thirds
of the members present at the time the vote is taken.
`(2) No person may be sentenced to suffer death, except insofar as--
`(A) death has been expressly authorized under this Act for an offense
of which the accused has been found guilty;
`(B) the charges referred to the commission expressly sought the penalty
of death;
`(C) the accused was convicted of the offense by the concurrence of all
the members of the military commission present at the time the vote is
taken; and
`(D) all members of the military commission present at the time the vote
was taken concurred in the sentence of death.
`(3) No person may be sentenced to life imprisonment or to confinement for
more than 10 years, except by the concurrence of three-fourths of the members
at the time the vote is taken.
`(c) NUMBER OF MEMBERS REQUIRED FOR PENALTY OF DEATH- (1) Except as provided
in paragraph (2), in a case in which the penalty of death is sought, the
number of members shall be not less than 12.
`(2) In any case described in paragraph (1) in which 12 members are not
reasonably available because of physical conditions or military exigencies,
the convening authority shall specify a lesser number of members for the
military commission (but not fewer than 5 members), and the military commission
may be assembled and the trial held with not fewer than the number of members
so specified. In such a case, the convening authority shall make a detailed
written statement, to be appended to the record, stating why a greater number
of members were not reasonably available.
`Sec. 949n. Military commission to announce action
`A military commission shall announce its findings and sentence to the parties
as soon as determined.
`Sec. 949o. Record of trial
`(a) RECORD; AUTHENTICATION- Each military commission shall keep a separate,
substantially verbatim, record of the proceedings in each case brought before
it, and the record shall be authenticated by the signature of the military
judge. If the record cannot be authenticated by the military judge by reason
of his death, disability, or absence, it shall be authenticated by the signature
of the trial counsel or by that of a member of the commission if the trial
counsel is unable to authenticate it by reason of his death, disability,
or absence. Where appropriate, and as provided by regulation, the record
of the military commission may contain a classified annex.
`(b) COMPLETE RECORD REQUIRED- A complete record of the proceedings and
testimony shall be prepared in every military commission established under
this chapter.
`(c) PROVISION OF COPY TO ACCUSED- A copy of the record of the proceedings
of each military commission shall be given to the accused as soon as it
is authenticated. Where the record contains classified information, or a
classified annex, the accused shall receive a redacted version of the record.
The appropriate defense counsel shall have access to the unredacted record,
as provided by regulation.
`SUBCHAPTER V--SENTENCES
`949s. Cruel or unusual punishments prohibited.
`949u. Execution of confinement.
`Sec. 949s. Cruel or unusual punishments prohibited
`Punishment by flogging, or by branding, marking, or tattooing on the body,
or any other cruel or unusual punishment, may not be adjudged by a military
commission or inflicted upon any person subject to this chapter. The use
of irons, single or double, except for the purpose of safe custody, is prohibited.
`Sec. 949t. Maximum limits
`The punishment which a military commission may direct for an offense may
not exceed such limits as the President or Secretary may prescribe for that
offense.
`Sec. 949u. Execution of confinement
`(a) IN GENERAL- Under such regulations as the Secretary may prescribe,
a sentence of confinement adjudged by a military commission may be carried
into execution by confinement--
`(1) in any place of confinement under the control of any of the armed
forces; or
`(2) in any penal or correctional institution under the control of the
United States or its allies or which the United States may be allowed
to use.
`(b) TREATMENT DURING CONFINEMENT BY OTHER THAN THE ARMED FORCES- Persons
confined under subsection (a)(2) in a penal or correctional institution
not under the control of one of the armed forces are subject to the same
discipline and treatment as persons confined or committed by the courts
of the United States or of the State, Territory, District of Columbia, or
place in which the institution is situated.
`SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY COMMISSIONS
`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.
`950f. Review by Court of Military Commission Review.
`950g. Review by the United States Court of Appeals for the District of
Columbia Circuit and the Supreme Court of the United States.
`950h. Appellate counsel.
`950i. Execution of sentence; suspension of sentence.
`950j. Finality or proceedings, findings, and sentences.
`Sec. 950a. Error of law; lesser included offense
`(a) ERROR OF LAW- A finding or sentence of a military commission may not
be held incorrect on the ground of an error of law unless the error materially
prejudices the substantial rights of the accused.
`(b) LESSER INCLUDED OFFENSE- Any reviewing authority with the power to
approve or affirm a finding of guilty may approve or affirm, instead, so
much of the finding as includes a lesser included offense.
`Sec. 950b. Review by the convening authority
`(a) NOTICE TO CONVENING AUTHORITY OF FINDINGS AND SENTENCE- The findings
and sentence of a military commission under this chapter shall be reported
in writing promptly to the convening authority after the announcement of
the sentence.
`(b) SUBMITTAL OF MATTERS BY ACCUSED TO CONVENING AUTHORITY- (1) The accused
may submit to the convening authority matters for consideration by the convening
authority with respect to the findings and the sentence of the military
commission under this chapter.
`(2)(A) Except as provided in subparagraph (B), a submittal under paragraph
(1) shall be made in writing within 20 days after the accused has been given
an authenticated record of trial under section 949o(c) of this title.
`(B) If the accused shows that additional time is required for the accused
to make a submittal under paragraph (1), the convening authority, for good
cause, may extend the applicable period under subparagraph (A) for not more
than an additional 20 days.
`(3) The accused may waive his right to make a submission to the convening
authority under paragraph (1). Such a waiver must be made in writing and
may not be revoked. For the purposes of subsection (c)(2), the time within
which the accused may make a submission under this subsection shall be deemed
to have expired upon the submission of such a waiver to the convening authority.
`(c) ACTION BY THE CONVENING AUTHORITY- (1) The authority under this section
to modify the findings and sentence of a military commission under this
chapter is a matter of the sole discretion and prerogative of the convening
authority.
`(2)(A) Action on the sentence of a military commission shall be taken by
the convening authority.
`(B) Subject to regulations of the Secretary, such action may be taken only
after consideration of any matters submitted by the accused under subsection
(b) or after the time for submitting such matters expires, whichever is
earlier.
`(C) In taking action under this paragraph, the convening authority, in
his sole discretion, may approve, disapprove, commute, or suspend the sentence
in whole or in part. The convening authority may not increase the sentence
beyond that which is found by the commission.
`(3) Action on the findings of a military commission by the convening authority
is not required. However, the convening authority, in his sole discretion,
may--
`(A) dismiss any charge or specification by setting aside a finding of
guilty thereto; or
`(B) change a finding of guilty to a charge to a finding of guilty to
an offense that is a lesser included offense of the offense stated in
the charge.
`(4) The convening authority shall serve on the accused or on defense counsel
notice of any action taken by the convening authority under this subsection.
`(d) ORDER OF REVISION OR REHEARING- (1) Subject to paragraphs (2) and (3),
the convening authority, in his sole discretion, may order a proceeding
in revision or a rehearing.
`(2)(A) Except as provided in subparagraph (B), a proceeding in revision
may be ordered if--
`(i) there is an apparent error or omission in the record; or
`(ii) the record shows improper or inconsistent action by a military commission
with respect to the findings or sentence that can be rectified without
material prejudice to the substantial rights of the accused.
`(B) In no case may a proceeding in revision--
`(i) reconsider a finding of not guilty of any specification or a ruling
which amounts to a finding of not guilty;
`(ii) reconsider a finding of not guilty of any charge, unless there has
been a finding of guilty under a specification laid under that charge,
which sufficiently alleges a violation;
`(iii) increase the severity of the sentence unless the sentence prescribed
for the offense is mandatory.
`(3) A rehearing may be ordered by the convening authority if he disapproves
the findings and sentence and states the reasons for disapproval of the
findings. If such a person disapproves the findings and sentence and does
not order a rehearing, he shall dismiss the charges. A rehearing as to the
findings may not be ordered where there is a lack of sufficient evidence
in the record to support the findings. A rehearing as to the sentence may
be ordered if the convening authority disapproves the sentence.
`Sec. 950c. Waiver or withdrawal of appeal
`(a) WAIVER OF RIGHT OF REVIEW- (1) In each case subject to appellate review
under section 950f and 950g of this title, except a case in which the sentence
as approved under section 950b of this title includes death, the accused
may file with the convening authority a statement expressly waiving the
right of the accused to such review.
`(2) A waiver under paragraph (1) shall be signed by both the accused and
by a defense counsel.
`(3) A waiver under paragraph (1) must be filed, if at all, within 10 days
after notice on the action is served on the accused under section 950b(c)(4)
of this title. The convening authority, for good cause, may extend the period
for such filing by not more than 30 days.
`(b) WITHDRAWAL OF APPEAL- Except in a case in which the sentence as approved
under section 950b of this title includes death, the accused may withdraw
an appeal at any time.
`(c) EFFECT OF WAIVER OR WITHDRAWAL- A waiver of the right to appellate
review or the withdrawal of an appeal under this section bars review under
section 950f or 950g of this title.
`Sec. 950d. Appeal by the United States
`(a) INTERLOCUTORY APPEAL- (1) Except as provided in paragraph (2), in a
trial by military commission under this chapter, the United States may take
an interlocutory appeal to the Court of Military Commission Review of any
order or ruling of the military judge that--
`(A) terminates commission proceedings with respect to a charge or specification;
`(B) excludes evidence that is substantial proof of a fact material in
the proceeding; or
`(C) relates to a matter under subsection (d), (e), or (f) of section
949d of this title.
`(2) The United States may not appeal under paragraph (1) an order or ruling
that is, or amounts to, a finding of not guilty by the commission with respect
to the charge or specification.
`(b) NOTICE OF APPEAL- The United States shall take an appeal of an order
or ruling under subsection (a) by filing a notice of appeal with the military
judge within five days after the date of such order or ruling.
`(c) APPEAL- An appeal under this section shall be forwarded by means prescribed
under regulations of the Secretary directly to the Court of Military Commission
Review. In ruling on an appeal under this section, the Court of Military
Commission Review may act only with respect to matters of law.
`(d) COURT OF APPEALS- The United States may appeal an adverse ruling under
subsection (c) to the United States Court of Appeals for the District of
Columbia Circuit by filing a petition for review in the Court of Appeals
within 10 days after the date of such ruling. Review under this subsection
shall be at the discretion of the Court of Appeals.
`Sec. 950e. Rehearings
`(a) COMPOSITION OF MILITARY COMMISSION FOR REHEARING- Each rehearing under
this chapter shall take place before a military commission composed of members
not members of the commission which first heard the case.
`(b) SCOPE OF REHEARING- (1) Upon a rehearing--
`(A) the accused may not be tried for any offense of which he was found
not guilty by the first commission; and
`(B) no sentence in excess of or more than the original sentence may be
imposed unless--
`(i) the sentence is based upon a finding of guilty of an offense not
considered upon the merits in the original proceedings; or
`(ii) unless the sentence prescribed for the offense is mandatory.
`(2) Upon a rehearing, if the sentence approved after the first commission
was in accordance with a pretrial agreement and the accused at the rehearing
changes his plea with respect to the charges or specifications upon which
the pretrial agreement was based, or otherwise does not comply with pretrial
agreement, the sentence as to those charges or specifications may include
any punishment not in excess of that lawfully adjudged at the first commission.
`Sec. 950f. Review by Court of Military Commission Review
`(a) COURT ESTABLISHED- (1) The Secretary shall establish a Court of Military
Commission Review which shall be composed of one or more panels, and each
such panel shall be composed of not less than three appellate military judges.
`(2) For the purpose of reviewing military commission decisions, the court
may sit in panels or as a whole in accordance with rules prescribed by the
Secretary.
`(b) COMPOSITION OF THE COURT- (1) The Secretary shall assign appellate
military judges to a Court of Military Commission Review.
`(2) Each appellate military judge shall meet the qualifications for military
judges prescribed by section 948j(b) of this Act or shall be a civilian
with comparable qualifications.
`(3) No person may be appointed to serve as an appellate military judge
in any case in which that person acted as a military judge, counsel, or
reviewing official.
`(c) RIGHT OF APPEAL- The accused may appeal from the final decision of
a military commission, and the United States may appeal as provided in section
950d of this title, to the Court of Military Commission Review in accordance
with procedures prescribed under regulations of the Secretary.
`(d) SCOPE OF REVIEW- In ruling on an appeal under this section, the Court
of Military Commission Review may act only with respect to matters of law.
`Sec. 950g. Review by the United States Court of Appeals for the District
of Columbia Circuit and the Supreme Court of the United States
`(a) IN GENERAL- (1)(A) Except as provided in subparagraph (B), the United
States Court of Appeals for the District of Columbia Circuit shall have
exclusive jurisdiction to determine the validity of a final judgment rendered
by a military commission, pursuant to Section 1005(e)(3) of the Detainee
Treatment Act of 2005.
`(B) The Court of Appeals shall not review the final judgment until all
other appeals under this chapter have been waived or exhausted.
`(2) A petition for review must be filed by the accused in the Court of
Appeals by no longer than 20 days from the earlier of when--
`(A) written notice of the final decision of the Court of Military Commission
Review is served on the accused or on defense counsel; or
`(B) the accused submits, in the form prescribed by section 950c of this
title, a written notice waiving his right to appeal under section 950f
of this title.
`(b) REVIEW BY SUPREME COURT- The Supreme Court of the United States may
review by writ of certiorari the final judgment of the Court of Appeals
pursuant to section 1257 of title 28, United States Code.
`Sec. 950h. Appellate counsel
`(a) APPOINTMENT- The Secretary shall, by regulation, establish procedures
for the appointment of appellate counsel for the United States and for the
accused in military commissions under this chapter. Appellate counsel shall
meet the qualifications for appearing before military commissions under
this chapter.
`(b) REPRESENTATION OF UNITED STATES- Appellate counsel may represent the
United States in any appeal or review proceeding under this chapter. Appellate
Government counsel may represent the United States before the Supreme Court
in cases arising under this chapter when requested to do so by the Attorney
General.
`(c) REPRESENTATION OF ACCUSED- The accused shall be represented by appellate
military counsel before the Court of Military Commission Review, the United
State Court of Appeals for the District of Columbia Circuit, or the Supreme
Court, or by civilian counsel if retained by him.
`Sec. 950i. Execution of sentence; suspension of sentence
`(a) EXECUTION OF SENTENCE OF DEATH ONLY UPON APPROVAL BY THE PRESIDENT-
If the sentence of a military commission under this chapter extends to death,
that part of the sentence providing for death may not be executed until
approved by the President. In such a case, the President may commute, remit,
or suspend the sentence, or any part thereof, as he sees fit.
`(b) EXECUTION OF SENTENCE OF DEATH ONLY UPON FINAL JUDGMENT OF LEGALITY
OF PROCEEDINGS- (1) If the sentence of a military commission under this
chapter extends to death, the sentence may not be executed until there is
a final judgment as to the legality of the proceedings (and with respect
to death, approval under subsection (a)).
`(2) A judgment as to legality of the proceedings is final for purposes
of paragraph (1) when--
`(A) review is completed by the Court of Military Commission Review and--
`(i) the time for the accused to file a petition for review by the Court
of Appeals for the D.C. Circuit has expired;
`(ii) the accused has not filed a timely petition for such review; and
`(iii) the case is not otherwise under review by that Court; or
`(B) review is completed in accordance with judgment of the Court of Appeals
for the D.C. Circuit and--
`(i) a petition for a writ of certiorari is not timely filed;
`(ii) such a petition is denied by the Supreme Court; or
`(iii) review is otherwise completed in accordance with the judgment
of the Supreme Court.
`(c) SUSPENSION OF SENTENCE- The Secretary, or the convening authority acting
on the case (if other than the Secretary), may suspend the execution of
any sentence or part thereof in the case, except a sentence of death.
`Sec. 950j. Finality of proceedings, findings, and sentences
`(a) FINALITY- The appellate review of records of trial provided by this
chapter, the proceedings, findings, and sentences of military commissions
as approved, reviewed, or affirmed as required by this chapter, are final
and conclusive. Orders publishing the proceedings of military commissions
are binding upon all departments, courts, agencies, and officers of the
United States, subject only to authority of the President.
`(b) PROVISIONS OF CHAPTER SOLE BASIS FOR REVIEW OF MILITARY COMMISSION
PROCEDURES AND ACTIONS- Except as otherwise provided in this chapter, and
notwithstanding any other law (including section 2241 of title 28, United
States Code, or any other habeas corpus provision), no court, justice, or
judge shall have jurisdiction to hear or consider any claim or cause of
action whatsoever, including any action pending on or filed after the date
of enactment of this chapter, relating to the prosecution, trial, or judgment
of a military commission convened under this section, including challenges
to the lawfulness of the procedures of military commissions under this chapter.
`SUBCHAPTER VII--PUNITIVE MATTERS
`950p. Substantive offenses.
`950r. Accessory after the fact.
`950s. Conviction of lesser offenses.
`950v. Crimes triable by military commission.
`950w. Perjury and obstruction of justice.
`Sec. 950p. Substantive offenses generally
`(a) PURPOSE- The following provisions codify offenses that have traditionally
been triable by military commissions. This Act does not establish new crimes
that did not exist before its establishment, but rather codifies those crimes
for trial by military commission.
`(b) EFFECT- Because these provisions are declarative of existing law, they
do not preclude trial for crimes that occurred prior to their effective
date.
`Sec. 950q. Principals
`Any person is punishable as a principal under this chapter who--
`(1) commits an offense punishable by this chapter, or aids, abets, counsels,
commands, or procures its commission;
`(2) causes an act to be done which if directly performed by him would
be punishable by this chapter; or
`(3) is a superior commander who, with regard to acts punishable under
this chapter, knew, had reason to know, or should have known, that a subordinate
was about to commit such acts or had done so and the superior failed to
take the necessary and reasonable measures to prevent such acts or to
punish the perpetrators thereof.
`Sec. 950r. Accessory after the fact
`Any person subject to this chapter who, knowing that an offense punishable
by this chapter has been committed, receives, comforts, or assists the offender
in order to hinder or prevent his apprehension, trial, or punishment shall
be punished as a military commission may direct.
`Sec. 950s. Conviction of lesser offenses
`An accused may be found guilty of an offense necessarily included in the
offense charged or of an attempt to commit either the offense charged or
an offense necessarily included therein.
`Sec. 950t. Attempts
`(a) IN GENERAL- Any person subject to this chapter who attempts to commit
any offense punishable by this Act shall be punished as a military commission
may direct.
`(b) SCOPE OF OFFENSE- An act, done with specific intent to commit an offense
under this chapter, amounting to more than mere preparation and tending,
even though failing, to effect its commission, is an attempt to commit that
offense.
`(c) EFFECT OF CONSUMMATION- Any person subject to this chapter may be convicted
of an attempt to commit an offense although it appears on the trial that
the offense was consummated.
`Sec. 950u. Solicitation
`Any person subject to this chapter who solicits or advises another or others
to commit one or more substantive offenses triable by military commission
shall, if the offense solicited or advised is attempted or committed, be
punished with the punishment provided for the commission of the offense,
but, if the offense solicited or advised is not committed or attempted,
he shall be punished as a military commission may direct.
`Sec. 950v. Crimes triable by military commission
`(a) DEFINITIONS AND CONSTRUCTION- (1) For purposes of this chapter, the
term `military objective' refers to combatants and those objects during
an armed conflict which, by their nature, location, purpose, or use, effectively
contribute to the opposing force's war-fighting or war-sustaining capability
and whose total or partial destruction, capture, or neutralization would
constitute a definite military advantage to the attacker under the circumstances
at the time of the attack.
`(2) For purposes of this section only, `protected person' refers to any
person entitled to protection under one or more of the Geneva Conventions,
including civilians not taking an active part in hostilities, military personnel
placed hors de combat by sickness, wounds, or detention, and military medical
or religious personnel.
`(3) For purposes of this chapter, the term `protected property' refers
to property specifically protected by the law of war such as buildings dedicated
to religion, education, art, science or charitable purposes, historic monuments,
hospitals, or places where the sick and wounded are collected, provided
they are not being used for military purposes or are not otherwise military
objectives. Such property would include objects properly identified by one
of the distinctive emblems of the Geneva Conventions but does not include
all civilian property.
`(4) The intent required for offenses (1), (2), (3), (4) and (12) under
subsection (b) precludes their applicability with regard to collateral damage
or to death, damage, or injury incident to a lawful attack.
`(b) OFFENSES- The following enumerated offenses, when committed in the
context of and associated with armed conflict, shall be triable by military
commission under this chapter at any time without limitation--
`(1) MURDER OF PROTECTED PERSONS- Any person who intentionally kills one
or more protected persons is guilty of the offense of intentionally killing
protected persons and shall be subject to whatever punishment the commission
may direct, including the penalty of death.
`(2) ATTACKING CIVILIANS- Any person who intentionally engages in an attack
upon a civilian population as such or individual civilians not taking
active part in hostilities is guilty of the offense of attacking civilians
and shall be subject to whatever punishment the commission may direct,
including, if death results to one or more of the victims, the penalty
of death.
`(3) ATTACKING CIVILIAN OBJECTS- Any person who intentionally engages
in an attack upon civilian objects (property that is not a military objective)
shall be guilty of the offense of attacking civilian objects and shall
be subject to whatever punishment the commission may direct.
`(4) ATTACKING PROTECTED PROPERTY- Any person who intentionally engages
in an attack upon protected property shall be guilty of the offense of
attacking protected property and shall be subject to whatever punishment
the commission may direct.
`(5) PILLAGING- Any person who intentionally and in the absence of military
necessity appropriates or seizes property for private or personal use,
without the consent of a person with authority to permit such appropriation
or seizure, shall be guilty of the offense of pillaging and shall be subject
to whatever punishment the commission may direct.
`(6) DENYING QUARTER- Any person who, with effective command or control
over subordinate groups, declares, orders, or otherwise indicates to those
forces that there shall be no survivors or surrender accepted, with the
intent therefore to threaten an adversary or to conduct hostilities such
that there would be no survivors or surrender accepted, shall be guilty
of denying quarter and shall be subject to whatever punishment the commission
may direct.
`(7) TAKING HOSTAGES- Any person who, having knowingly seized or detained
one or more persons, threatens to kill, injure, or continue to detain
such person or persons with the intent of compelling any nation, person
other than the hostage, or group of persons to act or refrain from acting
as an explicit or implicit condition for the safety or release of such
person or persons, shall be guilty of the offense of taking hostages and
shall be subject to whatever punishment the commission may direct, including,
if death results to one or more of the victims, the penalty of death.
`(8) EMPLOYING POISON OR ANALOGOUS WEAPONS- Any person who intentionally,
as a method of warfare, employs a substance or a weapon that releases
a substance that causes death or serious and lasting damage to health
in the ordinary course of events, through its asphyxiating, bacteriological,
or toxic properties, shall be guilty of employing poison or analogous
weapons and shall be subject to whatever punishment the commission may
direct, including, if death results to one or more of the victims, the
penalty of death.
`(9) USING PROTECTED PERSONS AS SHIELDS- Any person who positions, or
otherwise takes advantage of, a protected person with the intent to shield
a military objective from attack or to shield, favor, or impede military
operations, shall be guilty of the offense of using protected persons
as shields and shall be subject to whatever punishment the commission
may direct, including, if death results to one or more of the victims,
the penalty of death.
`(10) USING PROTECTED PROPERTY AS SHIELDS- Any person who positions, or
otherwise takes advantage of the location of, protected property under
the law of war with the intent to shield a military objective from attack
or to shield, favor, or impede military operations, shall be guilty of
the offense of using protected property as shields and shall be subject
to whatever punishment the commission may direct.
`(11) TORTURE- Any person who commits an act specifically intended to
inflict severe physical or mental pain or suffering (other than pain or
suffering incidental to lawful sanctions) upon another person within his
custody or physical control for the purpose of obtaining information or
a confession, punishment, intimidation, coercion, or any reason based
on discrimination of any kind, shall be guilty of torture and subject
to whatever punishment the commission may direct, including, if death
results to one or more of the victims, the penalty of death. `Severe mental
pain or suffering' has the meaning provided in 18 U.S.C. 2340(2).
`(12) CRUEL OR INHUMAN TREATMENT- Any person who commits an act intended
to inflict severe physical or mental pain or suffering (other than pain
or suffering incidental to lawful sanctions), including severe physical
abuse, upon another person within his custody or physical control shall
be guilty of cruel or inhuman treatment and subject to whatever punishment
the commission may direct, including, if death results to one or more
of the victims, the penalty of death. `Severe mental pain or suffering'
has the meaning provided in 18 U.S.C. 2340(2).
`(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY- Any person who intentionally
causes serious bodily injury to one or more persons, including lawful
combatants, in violation of the law of war shall be guilty of the offense
of causing serious bodily injury and shall be subject to whatever punishment
the commission may direct, including, if death results to one or more
of the victims, the penalty of death. `Serious bodily injury' has the
meaning provided in 18 U.S.C. 113(b)(2).
`(14) MUTILATING OR MAIMING- Any person who intentionally injures one
or more protected persons, by disfiguring the person or persons by any
mutilation thereof or by permanently disabling any member, limb, or organ
of his body, without any legitimate medical or dental purpose, shall be
guilty of the offense of mutilation or maiming and shall be subject to
whatever punishment the commission may direct, including, if death results
to one or more of the victims, the penalty of death.
`(15) MURDER IN VIOLATION OF THE LAW OF WAR- Any person who intentionally
kills one or more persons, including lawful combatants, in violation of
the law of war shall be guilty of the offense of murder in violation of
the law of war and shall be subject to whatever punishment the commission
may direct, including the penalty of death.
`(16) DESTRUCTION OF PROPERTY IN VIOLATION OF THE LAW OF WAR- Any person
who intentionally destroys property belonging to another person in violation
of the law of war shall be guilty of the offense of destruction of property
in violation of the law of war and shall be subject to whatever punishment
the commission may direct.
`(17) USING TREACHERY OR PERFIDY- Any person who, after inviting the confidence
or belief of one or more persons that they were entitled to, or obliged
to accord, protection under the law of war, intentionally makes use of
that confidence or belief in killing, injuring, or capturing such person
or persons, shall be guilty of using treachery or perfidy and shall be
subject to whatever punishment the commission may direct.
`(18) IMPROPERLY USING A FLAG OF TRUCE- Any person who uses a flag of
truce to feign an intention to negotiate, surrender, or otherwise to suspend
hostilities when there is no such intention, shall be guilty of improperly
using a flag of truce and shall be subject to whatever punishment the
commission may direct.
`(19) IMPROPERLY USING A DISTINCTIVE EMBLEM- Any person who intentilly
uses a distinctive emblem recognized by the law of war for combatant purposes
in a manner prohibited by the law of waf shall be guilty of improperly
using a distinctive emblem and shall be subject to whatever punishment
the commission may direct.
`(20) POTENTIONALLY MISTREATING A DEAD BODY- Any person who intentionally
mistreats the body of a dead person, without justification by legitimate
military necessary, shall be guilty of the offense of mistreating a dead
body and shall be subject to whatever punishment the commission may direct.
`(21) RAPE- Any person who forcibly or with coercion or threat of force
wrongfully invades the body of a person by penetrating, however slightly,
the anal or genital opening of the victim with any part of the body of
the accused or with any foreign object shall be guilty of the offense
of rape and shall be subject to whatever punishment the commission may
direct.
`(22) HIJACKING OR HAZARDING A VESSEL OR AIRCRAFT- Any person subject
to this chapter who intentionally seizes, exercises unauthorized control
over, or endangers the safe navigation of, a vessel or aircraft that was
not a legitimate military target is guilty of the offense of hijacking
or hazarding a vessel or aircraft and shall be subject to whatever punishment
the commission may direct, including, if death results to one or more
of the victims, the penalty of death.
`(23) TERRORISM- Any person subject to this chapter who intentionally
kills or inflicts great bodily harm on one or more persons, or intentionally
engages in an act that evinces a wanton disregard for human life, in a
manner calculated to influence or affect the conduct of government or
civilian population by intimidation or coercion, or to retaliate against
government conduct, shall be guilty of the offense of terrorism and shall
be subject to whatever punishment the commission may direct, including,
if death results to one or more of the victims, penalty of death.
`(24) PROVIDING MATERIAL SUPPORT FOR TERRORISM- Any person who provides
material support or resources, knowing or intending that they are to be
used in preparation for, or in carrying out, an act of terrorism (as defined
in subsection (b)(23) of this section), or who intentionally provides
material support or resources to an international terrorist organization
engage in hostilities against the United States, knowing that such organization
has engaged or engages in terrorism as defined in subsection (b)(23) of
this section), shall be guilty of the offense of providing material support
for terrorism and shall be subject to whatever punishment the commission
may direct. The term `material support or resources' has the meaning provided
in 18 U.S.C. 2339A(b).
`(25) WRONGFULLY AIDING THE ENEMY- Any person who, in breach of an allegiance
or duty to the United States, knowingly and intentionally aids an enemy
of the United States or one its cobelligerents shall be guilty of the
offense of wrongfully aiding the enemy and shall be subject to whatever
phmthe commission may direct.
`(26) SPYING- Any person who, with intent or reason to believe that it
is to be used to the injury of the United States or to the advantage of
a foreign-power, collects or attempts to collect certain information by
clandestine means or while acting under false pretenses, for the purpose
of conveying such information to an enemy of the United States or one
of its co-belligerents, shall be guilty of the offense of spying and shall
be subject to whatever punishment the commission may direct, including
the penalty of death.
`(27) CONSPIRACY- Any person who conspires to commit one or more substantive
offenses triable under this section, and who knowingly does any overt
act to effect the object of the conspiracy, shall be guilty of conspiracy
and shall be subject to whatever punishment the commission may direct,
including, if death results to one or more of the victims, the penalty
of death.
`Sec. 950w. Perjury and obstruction of justice
`The military commissions also may try offenses and impose punishments for
perjury, false testimony, or obstruction of justice related to military
commissions.
`Sec. 950x. Contempt
`A military commission may punish for contempt any person who uses any menacing
word, sign, or gesture in its presence, or who disturbs its proceedings
by any riot or disorder.'.
(2) TABLES OF CHAPTERS AMENDMENTS- The tables of chapters at the beginning
of subtitle A and part II of subtitle A of title 10, United States Code,
are each amended by inserting after the item relating to chapter 47 the
following new item:
`CHAPTER 47A--MILITARY COMMISIONS
`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
(b) SUBMITTAL OF PROCEDURES TO CONGRESS-
(1) SUBMITTAL OF PROCEDURES- Not later than 90 days after the date of
the enactment of this Act, the Secretary shall submit to the Committees
on Armed Forces of the Senate and the House of Representatives a report
setting forth the procedures for military commissions prescribed under
Chapter 47A of title 10, United States Code (as added by subsection (a)).
(2) SUBMITTAL OF MODIFICATIONS- Not later than 60 days before the date
on which any proposed modification of the procedures described in paragraph
(1) shall go into effect, the Secretary shall submit to the committees
of Congress referred to in that paragraph a report describing such modifications.
SEC. 5. JUDICIAL REVIEW.
Section 2241 of title 28, United States Code, is amended by replacing subsection
(e) with the following:
`(e) Except as provided for in this subsection, and notwithstanding any
other law, no court, justice, or judge shall have jurisdiction to hear or
consider any claim or cause of action, including an application for a writ
of habeas corpus, pending on or filed after the date of enactment of this
Act, against the United States or its agents, brought by or on behalf of
any alien detained by the United States as an unlawful enemy combatant,
relating to any aspect of the alien's detention, transfer, treatment, or
conditions of confinement:
`(1) COMBATANT STATUS REVIEW TRIBUNALS. The United States Court of Appeals
for the District of Columbia Circuit shall have exclusive jurisdiction
to determine the validity of any final decision of a Combatant Status
Review Tribunal. The scope of such review is defined in section 1005(e)(2)
of the Detainee Treatment Act of 2005. If the Court grants a detainee's
petition for review, the Department of Defense may conduct a new Combatant
Status Review Tribunal.
`(2) MILITARY COMMISSIONS- Review shall be had only of final judgments
of military commissions as provided for pursuant to section 247 of the
Military Commissions Act of 2006.
`(3) INFORMATION CONSIDERED- The court may consider classified information
submitted in camera and ex parte in making any determination under this
section.'.
SEC. 6. SATISFACTION OF TREATY OBLIGATIONS.
(a) IN GENERAL- Satisfaction of the prohibitions against cruel, inhuman,
and degrading treatment set forth in Section 1003 of the Detainee Treatment
Act of 2005 (title X of Public Law 109-148; 119 Stat. 2739; 42 U.S.C. 2000dd)
shall fully satisfy United States obligations with respect to the standards
for detention and treatment established by section 1 of common Article 3
of the
