Military Commissions Act of 2005 - Amends the Uniform Code of Military Justice to permit a military commission to try any person, not a citizen of the United States, for one or more offenses against the law of war or in furtherance of international terrorism. Permits only the President, or a person designated by the President, to appoint such a commission. Requires a commission to consist of not less than three members and not more than seven members.
States that trial and defense counsel shall be detailed for a military commission on the same basis as such counsel are detailed for a general court-martial.
Requires members of a military commission to deliberate and vote in closed conference.
Prohibits: (1) a military commission from finding a person guilty of an offense, and determining a sentence, except by the concurrence of two-thirds of the members present at the time the vote is taken; and (2) from sentencing a person to suffer death except by the concurrence of all the members as to the findings and as to the sentence.
Sets forth other requirements relating to a commission, including requiring the accused in a military commission to be given specified minimum rights and protections.
Outlines procedures for, and courts of, appeal.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3044 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 3044
To amend chapter 47 of title 10, United States Code (the Uniform Code
of Military Justice), to provide standards for the use of military
commissions for the trial of offenses under the law of war or in
furtherance of international terrorism.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 23, 2005
Ms. Loretta Sanchez of California introduced the following bill; which
was referred to the Committee on Armed Services
_______________________________________________________________________
A BILL
To amend chapter 47 of title 10, United States Code (the Uniform Code
of Military Justice), to provide standards for the use of military
commissions for the trial of offenses under the law of war or in
furtherance of international terrorism.
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 ``Military Commissions Act of 2005''.
SEC. 2. USE OF MILITARY COMMISSIONS FOR OFFENSES UNDER LAW OF WAR OR IN
FURTHERANCE OF TERRORISM.
(a) In General.--Subchapter XI of chapter 47 of title 10, United
States Code (the Uniform Code of Military Justice), is amended by
inserting after section 935 (article 135) the following new section:
``Sec. 935a. Art. 135a. Military commissions for offenses against the
law of war or in furtherance of terrorism
``(a) A military commission covered by this section may be
appointed only by the President or a person designated by the President
for such purpose.
``(b) A military commission appointed under subsection (a) may try
any person, not a citizen of the United States, for one or more
offenses against the law of war or any offense defined in United States
law when such offense is committed in furtherance of international
terrorism as defined in section 2331 of title 18.
``(c) A military commission shall consist of not less than three
members and not more than seven members. However, in a case in which
the accused may be sentenced to a penalty of death, the commission
shall consist of seven members. The commission may also include not
more than two alternate members. Each member and alternate member shall
be a commissioned officer of the armed forces.
``(d) A military commission shall have a presiding officer, who
shall be a nonvoting member of the commission. The presiding officer
shall be a judge advocate and shall preside over the proceedings of the
commission to ensure a full, fair, and expeditious trial. The presiding
officer shall instruct the members of the commission on all matters of
law and procedure and shall rule upon all questions of law and all
interlocutory questions arising during the proceedings.
``(e) Trial and defense counsel shall be detailed for a military
commission on the same basis as such counsel are detailed for a general
court-martial under section 827 (article 27).
``(f) Members of a military commission shall deliberate and vote in
closed conference. Voting on the findings and on the sentence shall be
by secret written ballot.
``(g) A military commission covered by this section may not find a
person guilty of an offense, and may not determine a sentence, except
by the concurrence of two-thirds of the members present at the time the
vote is taken. The commission may not sentence a person to suffer death
except by the concurrence of all the members as to the findings and as
to the sentence.
``(h) A military commission may, under such limitations as the
President may prescribe, adjudge any punishment permitted by the law of
war, including death, imprisonment for life or for any lesser term,
payment of a fine or restitution, or such other lawful punishment or
punishments as the commission shall determine to be proper. The
sentence of death may be adjudged only if the accused has been found
guilty of spying or an offense causing the death of one or more
persons. A commission may not sentence any person to suffer death for
an offense committed before the person attained the age of eighteen
years. A sentence of death may not be executed until approved by the
President.
``(i) Pursuant to section 936 (article 36) of this chapter, the
President may prescribe rules of evidence and procedure for trial by a
military commission. The President may further delegate authority to
prescribe such rules to the Secretary of Defense. The accused in a
military commission shall be given the following minimum rights and
protections:
``(1) The accused shall have the right to a fair trial,
without adverse distinction based upon race, color, gender,
language, religion, birth, wealth, or any similar criteria.
``(2) The accused shall be presumed innocent until proven
guilty. The burden of proof shall be upon the prosecution to
prove each element of an offense beyond a reasonable doubt.
``(3) The accused shall be informed of the charges against
him in a language he understands as soon as practicable prior
to trial.
``(4) The accused shall have the right to a public trial,
unless the appointing authority or presiding officer determines
that a closed trial, or any portion thereof, is necessary to
the national security of the United States.
``(5) The accused may not be compelled to testify or
present evidence against himself.
``(6) No adverse inference will be drawn against him by
reason of a decision not to testify on his own behalf.
``(7) Evidence obtained through the use of torture (as
defined in section 2340 of title 18), will not be admitted in
evidence at trial by a military commission.
``(8) The accused shall be entitled to assistance of
counsel at all stages of proceedings and shall have adequate
time and facilities available for the preparation of his
defense. The accused shall have the right to represent himself
in trail by military commission, subject to the discretion of
the presiding officer.
``(9) The accused shall have the right to present evidence
and to cross-examine each witness.
``(10) The accused shall have equal opportunity to obtain
witnesses and other evidence in accordance with such
regulations as the President may prescribe.
``(11) The accused shall have access to all evidence that
trial counsel intends to offer at trial and all evidence known
to trial counsel or to the commission that tends to exculpate
him.
``(12) The accused shall have the right to be present at
each stage of the proceedings, unless he engages in conduct
that the presiding officer determines to be disruptive, or the
presiding officer determines that exclusion of the accused is
necessary to protect national security interests of the United
States. Detailed defense counsel may not be excluded from any
trial proceeding or any portion thereof.
``(13) The accused shall not be tried a second time for the
same offense.
``(j) A person found guilty by military commission shall have a
right to review of that finding and any adjudged sentence in accordance
with this section.
``(k)(1) After trial, the presiding officer shall promptly
authenticate a verbatim transcript and record of trial.
``(2) The appointing authority shall, within a reasonable period of
time, carry out an administrative review of the transcript and record
of trial and take such administrative actions as the appointing
authority considers appropriate, which may include directing the
commission to conduct any necessary supplemental proceedings.
``(3) The Secretary of Defense shall review the record of trial
and, within a reasonable period of time, take one or more of the
following actions of the case:
``(A) Approve, disapprove, commute, mitigate, or suspend
the sentence in whole or in part.
``(B) Approve or disapprove a finding of guilty, or change
a finding of guilty to a charge or specification to a finding
of guilty to a lesser included offense of the offense stated in
the charge.
``(4)(A) Following action by the Secretary of Defense, the Court of
Appeals for the Armed Forces shall review the record of a military
commission--
``(i) in any case in which the sentence extends to death or
to confinement in excess of five years; and
``(ii) in any other case that the President may prescribe.
``(B) In any case reviewed by it under this subsection, the Court
of Appeals for the Armed Forces may act only with respect to the
findings and sentence as in effect after review by the convening
authority and the Secretary of Defense under subsection (k)(3).
``(C) The Court of Appeals for the Armed Forces shall take action
only with respect to matters of law and shall take such action as is
permitted under section 867 (article 67) of this chapter.
``(5) The Supreme Court of the United States shall have
jurisdiction to review, by writ of certiorari, an action of the Court
of Appeals for the Armed Forces under this subsection.
``(l) The Secretary of Defense shall submit to Congress each order,
rule, and regulation prescribed under this section. Such order, rule,
or regulation may not take effect until 30 days after it is so
submitted.
``(m) Not later than March 15 of each year, the Secretary of
Defense shall submit to Congress a report on the use of military
commissions covered by this section during the preceding calendar year.
The report shall set forth a summary of each case covered by this
section during such year, together with the disposition and current
status of that case. The report shall also set forth a detailed
description of the activities of the Department with respect to
military commissions, a copy of all current rules and regulations
relating to the use of military commissions, and an accounting of all
funds expended on matters relating to the use of military
commissions.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such subchapter is amended by adding at the end the following new item:
``935a. Art. 135a. Military commissions for offenses against the law of
war or in furtherance of terrorism.''.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Armed Services.
Referred to the Subcommittee on Military Personnel.
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