Military Commissions Act of 2006 - (Sec. 2) States that the authority under this Act to establish military commissions (commissions) may not be construed to alter or limit the the President's authority under the Constitution or laws of the United States to establish commissions on the battlefield or in occupied territories should circumstances so require.
(Sec. 3) Amends the Uniform Code of Military Justice (UCMJ) to codify and establish procedures governing the use of military commissions to try unlawful enemy combatants (combatants) for violations of offenses specifically made triable by commissions under this Act. Authorizes the President to establish such commissions. States that commissions shall not have jurisdiction over lawful enemy combatants as defined under this Act. Defines lawful and unlawful enemy combatants. Authorizes commissions to prescribe any punishment, including death when authorized. Requires an annual report from the Secretary of Defense to the congressional defense committees on any trials conducted.
Authorizes military commissions to be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose. Makes eligible to serve on a commission any commissioned officer of the Armed Forces on active duty. Requires to be detailed to each commission a military judge, trial and military defense counsel, and reporters and interpreters. Requires at least five members in each commission.
Prescribes commission pre-trial procedures, including charges and specifications. Prohibits a person from being required to testify against himself at a commission proceeding. Prohibits a statement obtained by the use of torture from being admissible against the accused, except against a person accused of torture as evidence the statement was made.
Prescribes commission trial procedures, including: (1) rules of evidence; (2) duties of trial and defense counsel; (3) pleas of the accused; (4) opportunity to obtain witnesses and other evidence; (5) the defense of lack of mental responsibility; and (6) the record of trial. Requires: (1) a two-thirds commission member vote for conviction; (2) a three-fourths member vote for a sentence of life imprisonment or confinement of more than ten years; and (3) a unanimous vote by at least 12 members in a case in which the death penalty is sought. Prohibits any sentence from including cruel or unusual punishments such as flogging, branding, or marking or tattooing of the body.
Prescribes post-trial procedures, including: (1) review by the convening authority; (2) appeal by the United States; (3) rehearings; (4) reviews by the Court of Military Commission Review, the U.S. Court of Appeals for the District of Columbia, and the U.S. Supreme Court; and (5) the execution of sentences.
Makes the following offenses triable by commissions: (1) murder of protected persons; (2) attacking civilians; (3) attacking civilian objects; (4) attacking protected property; (5) pillaging; (6) denying quarter; (7) taking hostages; (8) employing poison or analogous weapons; (9) using protected persons as shields; (10) using protected property as shields; (11) torture; (12) cruel or inhuman treatment; (13) intentionally causing serious bodily injury; (14) mutilating or maiming; (15) murder in violation of the law of war; (16) destruction of property in violation of the law of war; (17) using treachery or perfidy; (18) improperly using a flag of truce; (19) improperly using a distinctive emblem; (20) intentionally mistreating a dead body; (21) rape; (22) hijacking or hazarding a vessel or aircraft; (23) terrorism; (24) providing material support for terrorism; (25) wrongfully aiding the enemy; (26) spying; (27) conspiracy; (28) perjury and obstruction of justice; and (29) contempt.
Requires a report from the Secretary to the defense committees setting forth commission procedures prescribed under this Act.
Amends the federal criminal code to include the following as violations of the War Crimes Act: (1) torture; (2) cruel or inhuman treatment; (3) performing biological experiments; (4) murder; (5) mutilation or maiming; (6) intentionally causing great suffering or serious injury; (7) rape; (8) sexual assault; and (9) taking hostages.
(Sec. 5) Gives the U.S. Court of Appeals for the District of Columbia exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.
(Sec. 6) States that satisfaction of the prohibitions against cruel, inhuman, and degrading treatment set forth in the Detainee Treatment Act of 2005 shall fully satisfy U.S. obligations with respect to the standards for suspect detention and treatment established under the Geneva Conventions, with specified exceptions. Prohibits any person in a habeas or other action from invoking the Geneva Conventions as a source of rights for any purpose in any court of the United States or its states or territories.
(Sec. 7) Requires (cuurently, authorizes) the U.S. to provide counsel to government personnel engaged in authorized interrogations.
(Sec. 8) States that this Act shall take effect on the date of the enactment of this Act and shall apply retroactively, including to: (1) any aspect of the detention, treatment, or trial of any person detained at any time since September 11, 2001; and (2) any claim or cause of action pending on or after the date of the enactment of this Act.
(Sec. 9) Makes subject to UCMJ provisions lawful enemy combatants who violate the law of war.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6054 Introduced in House (IH)]
109th CONGRESS
2d Session
H. R. 6054
To amend title 10, United States Code, to authorize trial by military
commission for violations of the law of war, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 12, 2006
Mr. Hunter (for himself, Mr. Boehner, Mr. Sensenbrenner, Mr. Calvert,
Mrs. Miller of Michigan, Mr. Miller of Florida, Mr. Shuster, Mr. Franks
of Arizona, Mr. Wilson of South Carolina, Mr. Saxton, Mr. Porter, Mr.
Kline, Mr. Hefley, Mr. Hayes, Mr. Sweeney, Mr. Chocola, and Mr.
LoBiondo) introduced the following bill; which was referred to the
Committee on Armed Services, and in addition to the Committees on the
Judiciary and International Relations, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To amend title 10, United States Code, to authorize trial by military
commission for violations of the law of war, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Military
Commissions Act of 2006''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
1. Short title; table of contents.
2. Construction of Presidential authority to establish military
commissions.
3. Military commissions.
4. Clarification of conduct constituting war crime offense under
Federal Criminal Code.
5. Judicial review.
6. Satisfaction of treaty obligations.
7. Revisions to Detainee Treatment Act of 2005 relating to protection
of certain United States Government
personnel.
8. Retroactive applicability.
SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH MILITARY
COMMISSIONS.
The authority to establish military commissions under chapter 47A
of title 10, United States Code, as added by section 3(a), may not be
construed to alter or limit the authority of the President under the
Constitution to establish military commissions on the battlefield or in
occupied territories should circumstances so require.
SEC. 3. MILITARY 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..................................... 948a
``II. Composition of Military Commissions................... 948h
``III. Pre-Trial Procedure.................................. 948q
``IV. Trial Procedure....................................... 949a
``V. Sentences.............................................. 949s
``VI. Post-Trial Procedure and Review of Military 950a
Commissions.
``VII. Punitive Matters..................................... 950p
``SUBCHAPTER I--GENERAL PROVISIONS
``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``948e. Annual report to congressional committees.
``Sec. 948a. Definitions
``In this chapter:
``(1) Unlawful enemy combatant.--(A) The term `unlawful
enemy combatant' means an individual determined by or under the
authority of the President or the Secretary of Defense--
``(i) to be part of or affiliated with a force or
organization (including al Qaeda, the Taliban, any
international terrorist organization, or associated
forces) that is engaged in hostilities against the
United States or its co-belligerents in violation of
the law of war;
``(ii) to have committed a hostile act in aid of
such a force or organization so engaged; or
``(iii) to have supported hostilities in aid of
such a force or organization so engaged.
``(B) Such term includes any individual determined by a
Combatant Status Review Tribunal before the date of the
enactment of the Military Commissions Act of 2006 to have been
properly detained as an enemy combatant.
``(C) Such term does not include 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 a military
commission under this chapter would be inconsistent
with Articles 64 through 76 of the Geneva Convention
Relative to the Protection of Civilian Persons in Time
of War of August 12, 1949.
``(D) For purposes of subparagraph (C)(ii), 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.
``(2) Geneva conventions.--The term `Geneva Conventions'
means the international conventions signed at Geneva on August
12, 1949, including Common Article 3.
``(3) 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)).
``(4) Alien.--The term `alien' means an individual who is
not a citizen of the United States.
``Sec. 948b. Military commissions generally
``(a) Authority for Military Commissions Under This Chapter.--The
President is authorized to establish military commissions for
violations of offenses triable by military commission as provided in
this chapter.
``(b) Construction of Provisions.--The procedures for military
commissions set forth in this chapter are based upon the procedures for
trial by general courts-martial under chapter 47 of this title (the
Uniform Code of Military Justice). Chapter 47 of this title, including
any construction or application of such chapter and any administrative
practice under such chapter, does not apply to trial by military
commission under this chapter.
``(c) Status of Commissions Under Common Article 3.--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
``Any alien unlawful enemy combatant is subject to trial by
military commission under this chapter.
``Sec. 948d. Jurisdiction of military commissions
``(a) Jurisdiction.--A military commission under this chapter shall
have jurisdiction to try any offense made punishable by this chapter
when committed by an alien unlawful enemy combatant before, on, or
after September 11, 2001.
``(b) Punishments.--A military commission under this chapter may,
under such limitations as the Secretary of Defense may prescribe,
adjudge any punishment not forbidden by this chapter, including the
penalty of death when authorized under this chapter.
``Sec. 948e. Annual report to congressional committees
``(a) Annual Report Required.--Not later than December 31 each
year, the Secretary of Defense shall submit to the Committees on Armed
Services of the Senate and the House of Representatives a report on any
trials conducted by military commissions under this chapter during such
year.
``(b) Form.--Each report under this section shall be submitted in
unclassified form, but may include a classified annex.
``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS
``Sec.
``948h. Who may convene military commissions.
``948i. Who may serve on military commissions.
``948j. Military judges.
``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
``Military commissions under this chapter may be convened by the
Secretary of Defense or by any officer or official of the United States
designated by the Secretary for that purpose.
``Sec. 948i Who may serve on military commissions
``(a) In General.--Any commissioned officer of the armed forces on
active duty is eligible to serve on a military commission under this
chapter.
``(b) Detail of Members.--When convening a military commission
under this chapter, the convening authority shall detail as members of
the commission such members of the armed forces eligible under
subsection (a), as in the opinion of the convening authority, 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 is eligible to serve as a member of a military
commission when such member 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 military commission under this
chapter is assembled for the trial of a case, the convening authority
may excuse a member from participating in the case.
``Sec. 948j. Military judges
``(a) Detail of Military Judge.--A military judge shall be detailed
to each military commission under this chapter. The Secretary of
Defense shall prescribe regulations providing for the manner in which
military judges are so detailed to military commissions. The military
judge shall preside over each military commission to which he has been
detailed.
``(b) Qualifications.--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 under section 826 of this title
(article 26 of the Uniform Code of Military Justice) as a military
judge in general courts-martial by the Judge Advocate General of the
armed force of which such military judge is a member.
``(c) Ineligibility of Certain Individuals.--No person is eligible
to act as military judge in a case of a military commission under this
chapter if 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.--A military
judge detailed to a military commission under this chapter may not
consult with the members of the commission except in the presence of
the accused (except as otherwise provided in section 949d of this
title), trial counsel, and defense counsel, nor may he vote with the
members of the commission.
``(e) Other Duties.--A commissioned officer who is certified to be
qualified for duty as a military judge of a military commission under
this chapter may perform such other duties as are assigned to him by or
with the approval of the Judge Advocate General of the armed force of
which such officer is a member or the designee of such Judge Advocate
General.
``(f) Prohibition on Evaluation of Fitness by Convening
Authority.--The convening authority of a military commission under this
chapter shall not prepare or review any report concerning the
effectiveness, fitness, or efficiency of a military judge detailed to
the military commission which relates to his performance of duty as a
military judge on the military 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 military commission under
this chapter.
``(2) Assistant trial counsel and assistant and associate defense
counsel may be detailed for a military commission under this chapter.
``(3) Military defense counsel for a military commission under this
chapter shall be detailed as soon as practicable after the swearing of
charges against the accused.
``(4) The Secretary of Defense shall prescribe regulations
providing for the manner in which trial counsel and military defense
counsel are detailed for military commissions under this chapter and
for the persons who are authorized to detail such counsel for such
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 (article 1 of the Uniform Code of Military
Justice) 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
``(2) a civilian who is--
``(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
military commission pursuant to regulations prescribed
by the Secretary of Defense.
``(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 is 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 in any case may act later as trial
counsel or military defense counsel in the same case. No person who has
acted for the prosecution before a military commission under this
chapter may act later in the same case for the defense, nor may any
person who has acted for the defense before a military commission under
this chapter 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 of
Defense may prescribe, the convening authority of a military commission
under this chapter shall detail to or employ for the commission
qualified court reporters, who shall make a verbatim recording of the
proceedings of and testimony taken before the commission.
``(b) Interpreters.--Under such regulations as the Secretary of
Defense may prescribe, the convening authority of a military commission
under this chapter may detail to or employ for the military commission
interpreters who shall interpret for the commission and, as necessary,
for trial counsel and defense counsel.
``(c) Transcript; Record.--The transcript of a military commission
under this chapter shall be under the control of the convening
authority of the commission, who shall also be 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 under
this chapter may be absent or excused after the military commission has
been assembled for the trial of a case 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 under this chapter is reduced below the number of members
required by subsection (a), the trial may not proceed unless the
convening authority details new members sufficient to provide not less
than such number. The trial may proceed with the new members present
after the recorded evidence previously introduced before the members
has been read to the military commission in the presence of the
military judge, the accused (except as provided in section 949d of this
title), and counsel for both sides.
``SUBCHAPTER III--PRE-TRIAL PROCEDURE
``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; treatment of
statements obtained by torture and other
statements.
``948s. Service of charges.
``Sec. 948q. Charges and specifications
``(a) Charges and Specifications.--Charges and specifications
against an accused in a military commission under this chapter 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 the
signer's 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 against him as soon as practicable.
``Sec. 948r. Compulsory self-incrimination prohibited; treatment of
statements obtained by torture and other statements
``(a) In General.--No person shall be required to testify against
himself at a proceeding of a military commission under this chapter.
``(b) Exclusion of Statements Obtained by Torture.--A statement
obtained by use of torture, whether or not under color of law, shall
not be admissible against the accused in a military commission under
this chapter, except against a person accused of torture as evidence
the statement was made.
``(c) Other Statements.--An otherwise admissible statement,
including a statement allegedly obtained by coercion, shall not be
admitted in evidence in a military commission under this chapter if the
military judge finds that the circumstances under which the statement
was made render the statement unreliable or lacking in probative value.
``(d) Torture.--In this section, the term `torture' has the meaning
given that term in section 2340 of title 18.
``Sec. 948s. Service of charges
``The trial counsel assigned to a case before a military commission
under this chapter shall cause to be served upon the accused and
military defense counsel a copy of the charges upon which trial is to
be had. Such charges shall be served in English and, if appropriate, in
another language that the accused understands. Such service shall be
made sufficiently in advance of trial to prepare a defense.
``SUBCHAPTER IV--TRIAL PROCEDURE
``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.
``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 of
Defense, but may not be contrary to or inconsistent with this chapter.
``(b) Rules of Evidence.--(1) Subject to such exceptions and
limitations as the Secretary may prescribe by regulation, evidence in a
military commission under this chapter shall be admissible if the
military judge determines that the evidence would have probative value
to a reasonable person.
``(2) Hearsay evidence is admissible unless the military judge
finds that the circumstances render the evidence unreliable or lacking
in probative value. However, such evidence may be admitted only if the
proponent of the evidence makes the evidence known to the adverse party
in advance of trial or hearing.
``(3) The military judge shall exclude any evidence the probative
value of which is substantially outweighed--
``(A) by the danger of unfair prejudice, confusion of the
issues, or misleading the members of the commission; or
``(B) by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
``(c) Notification to Congressional Committees of Changes to
Procedures.--Not later than 60 days before the date on which any
proposed modification of the procedures in effect for military
commissions under this chapter goes into effect, the Secretary of
Defense shall submit to the Committee on Armed Services of the Senate
and the Committee on Armed Services of the House of Representatives a
report describing the modification.
``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 military
commission, or any member, military judge, or counsel thereof, with
respect to the findings or sentence adjudged by the military
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 military commission under this
chapter, 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) Paragraphs (1) and (2) do 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 a 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 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
under this chapter 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 under this chapter 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 the accused, but only if such civilian counsel--
``(A) is a United States citizen;
``(B) is admitted to the practice of law in a State,
district, 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
classified information that is 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.
``(4) Civilian defense counsel shall protect any classified
information received during the course of representation of the accused
in accordance with all applicable law governing the protection of
classified information and may not divulge such information to any
person not authorized to receive it.
``(5) If the accused is represented by civilian counsel, military
counsel detailed shall act as associate counsel.
``(6) 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 that
person's sole discretion, may detail additional military counsel to
represent the accused.
``(7) Defense counsel may cross-examine each witness for the
prosecution who testifies before a military commission under this
chapter.
``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 under this chapter, the military judge may call the military
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;
``(C) if permitted by regulations prescribed by the
Secretary of Defense, 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.
``(2) Except as provided in subsections (c), (d), and (e), any
proceedings under paragraph (1) shall--
``(A) be conducted in the presence of the accused, defense
counsel, and trial counsel; and
``(B) 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, including any consultation of the members with the
military judge or counsel, shall--
``(1) be in the presence of the accused, defense counsel,
and trial counsel; and
``(2) be made a part of the record.
``(c) Deliberation or Vote of Members.--When the members of a
military commission under this chapter deliberate or vote, only the
members may be present.
``(d) Closure of Proceedings.--(1) The military judge may close to
the public all or part of the proceedings of a military commission
under this chapter, but only in accordance with this subsection.
``(2)(A) The military judge may close to the public all or a
portion of the proceedings of a military commission under paragraph
(1), or permit the admission of classified information outside the
presence of the accused, based upon a presentation (including an ex
parte or in camera presentation) by either the prosecution or the
defense.
``(B) Trial counsel may not make a presentation requesting the
admission of classified information outside the presence of the accused
unless the head of the department or agency which has control over the
matter (after personal consideration by that officer) certifies in
writing to the military judge that--
``(i) the disclosure of the classified information to the
accused could reasonably be expected to prejudice the national
security; and
``(ii) that such evidence has been declassified to the
maximum extent possible, consistent with the requirements of
national security.
``(3) The military judge may close to the public all or a portion
of the proceedings of a military commission under paragraph (1) 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) Exclusion of Accused From Certain Proceedings.--(1) The
military judge may not exclude the accused from any portion of the
proceeding except upon a specific finding of each of the following:
``(A) That 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;
``(ii) is necessary to ensure the physical safety
of individuals; or
``(iii) is necessary to prevent disruption of the
proceedings by the accused.
``(B) That the exclusion of the accused--
``(i) is no broader than necessary; and
``(ii) will not deprive the accused of a full and
fair trial.
``(2)(A) A finding under paragraph (1) may be based upon a
presentation, including a presentation ex parte or in camera, by either
trial counsel or defense counsel.
``(B) Before trial counsel may make a presentation for purposes of
subparagraph (A) requesting the admission of classified information
that has not been provided to the accused, the head of the executive or
military department or governmental agency concerned shall ensure, and
shall certify in writing to the military judge, that such evidence has
been declassified to the maximum extent possible, consistent with the
requirements of national security.
``(3)(A) No evidence may be admitted that has not been provided to
the accused unless the evidence is classified information and the
military judge makes a specific finding that--
``(i) consideration of that evidence by the military
commission, without the presence of the accused, is warranted;
``(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 proceedings,
the accused shall be provided with a redacted transcript of the
proceedings from which excluded 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 paragraph (1).
``(4)(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 paragraph (3).
``(B) Civilian defense counsel shall be permitted to be present and
to participate in proceedings from which the accused is excluded under
this subsection, and shall be given access to classified information
admitted under this subsection, if--
``(i) civilian defense counsel has obtained the necessary
security clearances; and
``(ii) the presence of civilian defense counsel or access
of civilian defense counsel to such information, as applicable,
is consistent with regulations to protect classified
information that the Secretary of Defense may prescribe.
``(C) Any defense counsel who receives classified information
admitted under this subsection shall not be obligated to, and may not,
disclose that information to the accused.
``(D) At all times the accused must have defense counsel with
sufficient security clearance to participate in any proceeding,
including an ex parte or in camera presentation, with respect to
classified information.
``(5) If evidence has been admitted under this subsection that has
not been provided to the accused, the judge shall instruct the members
of the commission--
``(A) that such evidence was so admitted; and
``(B) that, in weighing the value of that evidence, the
commission shall consider the fact that such evidence was
admitted without having been provided to the accused.
``(f) Admission of Statements of Accused.--(1) A statement
described in paragraph (2) that is made by the accused during an
interrogation, even if otherwise classified, may not be admitted into
evidence in a military commission under this chapter unless the accused
is present for the admission of the statement into evidence or the
statement is otherwise provided to the accused.
``(2) A statement of an accused described in this paragraph is a
statement communicated knowingly and directly by the accused in
response to questioning by United States or foreign military,
intelligence, or criminal investigative personnel.
``(3) This subsection 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 in a military commission under this chapter
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 a
military commission under this chapter may be challenged by the accused
or trial counsel for cause stated to the commission. The military judge
shall determine the relevance and validity of challenges for cause. The
military judge may not receive a challenge to more than one person at a
time. Challenges by trial counsel shall ordinarily be presented and
decided before those by the accused are offered.
``(b) Peremptory Challenges.--Each accused and the trial counsel
are entitled to one peremptory challenge. The military judge may not be
challenged except for cause.
``(c) Challenges Against Additional Members.--Whenever additional
members are detailed to a military commission under this chapter, 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 in
a military commission under this chapter, military judges, members,
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 duties are to be
performed or for a particular case, shall be as prescribed in
regulations of the Secretary of Defense. Those 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 the duty; and
``(B) if such an oath is taken, such oath 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.
``Sec. 949h. Former jeopardy
``(a) In General.--No person may, without his consent, be tried by
a military commission under this chapter a second time for the same
offense.
``(b) Scope of Trial.--No proceeding in which the accused has been
found guilty by military commission under this chapter 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) Entry of Plea of Not Guilty.--If an accused in a military
commission under this chapter after a plea of guilty sets up matter
inconsistent with the plea, or if it appears that the accused has
entered the plea of guilty through lack of understanding of its meaning
and effect, or if the accused fails or refuses to plead, a plea of not
guilty shall be entered in the record, and the military commission
shall proceed as though the accused 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 in a military commission under this chapter and accepted by the
military judge, a finding of guilty of the charge or specification may
be entered immediately without a vote. The 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) Right of Defense Counsel.--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 provided in regulations prescribed
by the Secretary of Defense.
``(b) Process for Compulsion.--Process issued in a military
commission under this chapter to compel witnesses to appear and testify
and to compel the production of other evidence--
``(1) shall be similar to that which courts of the United
States having criminal jurisdiction may lawfully issue; and
``(2) shall run to any place where the United States shall
have jurisdiction thereof.
``(c) Treatment of Classified Information.--The military judge in a
military commission under this chapter, upon a sufficient showing, may
authorize trial counsel, in making documents available to the accused
through discovery conducted pursuant to such rules as the Secretary of
Defense shall prescribe, to delete specified items of classified
information from such documents and, when such a deletion is made--
``(1) to substitute an unclassified summary of the
classified information in such documents; or
``(2) to substitute an unclassified statement admitting
relevant facts that classified information in such documents
would tend to prove.
``(d) 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 consists of classified information
may be provided solely to defense counsel, and not the accused, after
review in camera by the military judge.
``(3) Before evidence may be withheld from the accused under this
subsection, the head of the executive or military department or
government agency concerned shall ensure, and shall certify in writing
to the military judge, that--
``(A) the disclosure of such evidence to the accused could
reasonably be expected to prejudice the national security; and
``(B) 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;
``(B) shall be provided to civilian defense counsel, if
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) A 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 under this chapter 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 in a military commission under
this chapter 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 in a military commission under this chapter, 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--
``(1) guilty;
``(2) not guilty; or
``(3) subject to subsection (d), not guilty by reason of
lack of mental responsibility.
``(d) Majority Vote Required for Finding.--The accused shall be
found not guilty by reason of lack of mental responsibility under
subsection (c)(3) only if a majority of the members present 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 under this chapter on the findings and on the
sentence shall be by secret written ballot.
``(b) Rulings.--(1) The military judge in a military commission
under this chapter shall rule upon all questions of law, including the
admissibility of evidence and all interlocutory questions arising
during the proceedings.
``(2) Any ruling made by the military judge upon a question of law
or an interlocutory question (other than the factual issue of mental
responsibility of the accused) is conclusive and constitutes the ruling
of the military commission. However, a 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 of a military commission under this chapter, the military
judge shall, in the presence of the accused and counsel, instruct the
members 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 a 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 by a military
commission under this chapter 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) No person may be sentenced by a military
commission to suffer death, except insofar as--
``(A) the penalty of death is expressly authorized under
this chapter for an offense of which the accused has been found
guilty;
``(B) trial counsel expressly sought the penalty of death
by filing an appropriate notice in advance of trial;
``(C) the accused is convicted of the offense by the
concurrence of all the members; and
``(D) all the members concur in the sentence of death.
``(2) No person may be sentenced to life imprisonment, or to
confinement for more than 10 years, by a military commission under this
chapter except by the concurrence of three-fourths of the members
present at the time the vote is taken.
``(3) All other 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.
``(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 of the military commission under this
chapter 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 9 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 under this chapter shall announce its
findings and sentence to the parties as soon as determined.
``Sec. 949o. Record of trial
``(a) Record; Authentication.--Each military commission under this
chapter shall keep a separate, 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 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 in regulations prescribed by the
Secretary of Defense, the record of a military commission under this
chapter may contain a classified annex.
``(b) Complete Record Required.--A complete record of the
proceedings and testimony shall be prepared in every military
commission under this chapter.
``(c) Provision of Copy to Accused.--A copy of the record of the
proceedings of the military commission under this chapter shall be
given the accused as soon as it is authenticated. If the record
contains classified information, or a classified annex, the accused
shall be given a redacted version of the record. The appropriate
defense counsel shall have access to the unredacted record, as provided
in regulations prescribed by the Secretary of Defense.
``SUBCHAPTER V--SENTENCES
``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``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 under this chapter or inflicted under this
chapter upon any person subject to this chapter. The use of irons,
single or double, except for the purpose of safe custody, is prohibited
under this chapter.
``Sec. 949t. Maximum limits
``The punishment which a military commission under this chapter may
direct for an offense may not exceed such limits as the President or
Secretary of Defense may prescribe for that offense.
``Sec. 949u. Execution of confinement
``(a) In General.--Under such regulations as the Secretary of
Defense may prescribe, a sentence of confinement adjudged by a military
commission under this chapter 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 an armed force are
subject to the same discipline and treatment as persons confined or
committed by the courts of the United States or of the State, District
of Columbia, or place in which the institution is situated.
``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY
COMMISSIONS
``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District
of Columbia Circuit and the Supreme Court.
``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
under this chapter 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 by a military commission
under this chapter 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 afer 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 may, for good cause, 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 submittal to the
convening authority under paragraph (1). Such a waiver shall 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 submittal under this
subsection shall be deemed to have expired upon the submittal of a
waiver under this paragraph to the convening authority.
``(c) Action by Convening Authority.--(1) The authority under this
subsection 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) The convening authority shall take action on the sentence
of a military commission under this chapter.
``(B) Subject to regulations prescribed by the Secretary of
Defense, action on the sentence under this paragraph 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 may, in his sole discretion, approve, disapprove, commute, or
suspend the sentence in whole or in part. The convening authority may
not increase a sentence beyond that which is found by the military
commission.
``(3) The convening authority is not required to take action on the
findings of a military commission under this chapter. If the convening
authority takes action on the findings, the convening authority may, 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 of a military commission under
this chapter may, in his sole discretion, order a proceeding in
revision or a rehearing.
``(2)(A) Except as provided in subparagraph (B), a proceeding in
revision may be ordered by the convening authority if--
``(i) there is an apparent error or omission in the record;
or
``(ii) the record shows improper or inconsistent action by
the 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 a 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;
or
``(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 the
convening authority disapproves the findings and sentence and states
the reasons for disapproval of the findings. If the convening authority
disapproves the finding and sentence and does not order a rehearing,
the convening authority shall dismiss the charges. A rehearing as to
the findings may not be ordered by the convening authority when there
is a lack of sufficient evidence in the record to support the findings.
A rehearing as to the sentence may be ordered by the convening
authority if the convening authority disapproves the sentence.
``Sec. 950c. Appellate referral; waiver or withdrawal of appeal
``(a) Automatic Referral for Appellate Review.--Except as provided
under subsection (b), in each case in which the final decision of a
military commission (as approved by the convening authority) includes a
finding of guilty, the convening authority shall refer the case to the
Court of Military Commission Review. Any such referral shall be made in
accordance with procedures prescribed under regulations of the
Secretary.
``(b) Waiver of Right of Review.--(1) In each case subject to
appellate review under section 950f of this title, except a case in
which the sentence as approved under section 950b of this title extends
to 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 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 or on
defense counsel 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.
``(c) Withdrawal of Appeal.--Except in a case in which the sentence
as approved under section 950b of this title extends to death, the
accused may withdraw an appeal at any time.
``(d) 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 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 proceedings of the military commission
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
military commission with respect to a 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 specified in regulations prescribed the Secretary of Defense,
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) Appeal From Adverse Ruling.--The United States may appeal an
adverse ruling on an appeal 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 under this chapter composed of members who were not members
of the military 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 military 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) the sentence prescribed for the offense is
mandatory.
``(2) Upon a rehearing, if the sentence approved after the first
military 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 military commission.
``Sec. 950f. Review by Court of Military Commission Review
``(a) Establishment.--The Secretary of Defense 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. For the purpose of reviewing military
commission decisions under this chapter, the court may sit in panels or
as a whole in accordance with rules prescribed by the Secretary.
``(b) Appellate Military Judges.--The Secretary shall assign
appellate military judges to a Court of Military Commission Review.
Each appellate military judge shall meet the qualifications for
military judges prescribed by section 948j(b) of this title or shall be
a civilian with comparable qualifications. 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) Cases to Be Reviewed.--The Court of Military Commission
Review, in accordance with procedures prescribed under regulations of
the Secretary, shall review the record in each case that is referred to
the Court by the convening authority under section 950c of this title
with respect to any matter of law raised by the accused.
``(d) Scope of Review.--In a case reviewed by it 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
``(a) Exclusive Appellate Jurisdiction.--(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 (as approved by the convening authority) under this chapter.
``(B) The Court of Appeals may 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 not later than 20 days after the date on which--
``(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 the right
of the accused to review by the Court of Military Commission
Review under section 950f of this title.
``(b) Standard for Review.--In a case reviewed by it under this
section, the Court of Appeals may act only with respect to matters of
law.
``(c) Scope of Review.--The jurisdiction of the Court of Appeals on
an appeal under subsection (a) shall be limited to the consideration
of--
``(1) whether the final decision was consistent with the
standards and procedures specified in this chapter; and
``(2) to the extent applicable, the Constitution.
``(d) Supreme Court.--The Supreme Court may review by writ of
certiorari the final judgment of the Court of Appeals pursuant to
section 1257 of title 28.
``Sec. 950h. Appellate counsel
``(a) Appointment.--The Secretary of Defense 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 counsel
appearing before military commissions under this chapter.
``(b) Representation of United States.--Appellate counsel appointed
under subsection (a)--
``(1) shall represent the United States in any appeal or
review proceeding under this chapter before the Court of
Military Commission Review; and
``(2) may, when requested to do so by the Attorney General
in a case arising under this chapter, represent the United
States before the United States Court of Appeals for the
District of Columbia Circuit or the Supreme Court.
``(c) Representation of Accused.--The accused shall be represented
by appellate counsel appointed under subsection (a) before the Court of
Military Commission Review, the United States Court of Appeals for the
District of Columbia Circuit, and the Supreme Court, and by civilian
counsel if retained by the accused. Any such civilian counsel shall
meet the qualifications under paragraph (3) of section 949c(b) of this
title for civilian counsel appearing before military commissions under
this chapter and shall be subject to the requirements of paragraph (4)
of that section. The provisions of subparagraph (D) of section
949d(e)(5) of this title shall apply with respect to appellate counsel.
``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 judgement as to the legality of the proceedings
(and with respect to death, approval under subsection (a)).
``(2) A judgement as to legality of proceedings is final for
purposes of paragraph (1) when--
``(A) the time for the accused to file a petition for
review by the Court of Appeals for the District of Columbia
Circuit has expired and the accused has not filed a timely
petition for such review and the case is not otherwise under
review by that Court; or
``(B) review is completed in accordance with the judgment
of the United States Court of Appeals for the District of
Columbia 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 of the Defense, 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 or proceedings, findings, and sentences
``(a) Finality.--The appellate review of records of trial provided
by this chapter, and 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 under this chapter are binding upon
all departments, courts, agencies, and officers of the United States,
except as otherwise provided by the President.
``(b) Provisions of Chapter Sole Basis for Review of Miliary
Commission Procedures and Actions.--Except as otherwise provided in
this chapter and notwithstanding any other provision of law (including
section 2241 of title 28 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 the enactment of the Military Commissions
Act of 2006, relating to the prosecution, trial, or judgment of a
military commission under this chapter, including challenges to the
lawfulness of procedures of military commissions under this chapter.
``SUBCHAPTER VII--PUNITIVE MATTERS
``Sec.
``950p. Statement of substantive offenses.
``950q. Principals.
``950r. Accessory after the fact.
``950s. Conviction of lesser included offense.
``950t. Attempts.
``950u. Solicitation.
``950v. Crimes triable by military commissions.
``950w. Perjury and obstruction of justice.
``950x. Contempt.
``Sec. 950p. Statement of substantive offenses
``(a) Purpose.--The provisions of this subchapter codify offenses
that have traditionally been triable by military commissions. This
chapter does not establish new crimes that did not exist before its
enactment, but rather codifies those crimes for trial by military
commission.
``(b) Effect.--Because the provisions of this subchapter (including
provisions that incorporate definitions in other provisions of law) are
declarative of existing law, they do not preclude trial for crimes that
occurred before the date of the enactment of this chapter.
``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 under
this chapter may direct.
``Sec. 950s. Conviction of lesser included offense
``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 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 chapter shall be punished as a
military commission under this chapter 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 under this chapter 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 under this chapter may direct.
``Sec. 950v. Crimes triable by military commissions
``(a) Definitions and Construction.--In this section:
``(1) Military objective.--The term `military objective'
refers to--
``(A) combatants; and
``(B) those objects during an armed conflict--
``(i) which, by their nature, location,
purpose, or use, effectively contribute to the
opposing force's war-fighting or war-sustaining
capability; and
``(ii) the total or partial destruction,
capture, or neutralization of which would
constitute a definite military advantage to the
attacker under the circumstances at the time of
the attack.
``(2) Protected person.--The term `protected person' refers
to any person entitled to protection under one or more of the
Geneva Conventions, including--
``(A) civilians not taking an active part in
hostilities;
``(B) military personnel placed hors de combat by
sickness, wounds, or detention; and
``(C) military medical or religious personnel.
``(3) Protected property.--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), if such
property is not being used for military purposes or is not
otherwise a military objective. Such term includes objects
properly identified by one of the distinctive emblems of the
Geneva Conventions.
``(4) Construction.--The intent specified for an offense
under paragraph (1), (2), (3), (4), or (12) of subsection (b)
precludes the applicability of such offense with regard to--
``(A) collateral damage; or
``(B) death, damage, or injury incident to a lawful
attack.
``(b) Offenses.--The following offenses shall be triable by
military commission under this chapter at any time without limitation:
``(1) Murder of protected persons.--An alien unlawful enemy
combatant who intentionally kills one or more protected persons
is guilty of the offense of intentionally killing a protected
person and shall be subject to whatever punishment a commission
may direct, including the penalty of death.
``(2) Attacking civilians.--An alien unlawful enemy
combatant 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
a commission may direct, including, if death results to one or
more of the victims, the penalty of death.
``(3) Attacking civilian objects.--An alien unlawful enemy
combatant who intentionally engages in an attack upon property
that is not a military objective shall be guilty of the offense
of attacking civilian objects and shall be subject to whatever
punishment a commission may direct.
``(4) Attacking protected property.--An alien unlawful
enemy combatant 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
a commission may direct.
``(5) Pillaging.--An alien unlawful enemy combatant 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 a
commission may direct.
``(6) Denying quarter.--An alien unlawful enemy combatant
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 a commission may direct.
``(7) Taking hostages.--An alien unlawful enemy combatant
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 a commission may direct, including, if death results
to one or more of the victims, the penalty of death.
``(8) Employing poison or analogous weapons.--An alien
unlawful enemy combatant 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 a commission may direct,
including, if death results to one or more of the victims, the
penalty of death.
``(9) Using protected persons as shields.--An alien
unlawful enemy combatant 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 a commission may direct, including, if death results
to one or more of the victims, the penalty of death.
``(10) Using protected property as shields.--An alien
unlawful enemy combatant 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 a
commission may direct.
``(11) Torture.--An alien unlawful enemy combatant who
commits an act specifically intended to inflict severe physical
pain or suffering or severe 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 a commission may direct, including, if death results
to one or more of the victims, the penalty of death. In this
paragraph, the term `severe mental pain or suffering' has the
meaning given that term in section 2340(2) of title 18.
``(12) Cruel or inhuman treatment.--An alien unlawful enemy
combatant who commits an act intended to inflict severe
physical pain or suffering or severe 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 a commission may
direct, including, if death results to one or more of the
victims, the penalty of death. In this paragraph, the term
`severe mental pain or suffering' has the meaning given that
term in section 2340(2) of title 18.
``(13) Intentionally causing serious bodily injury.--An
alien unlawful enemy combatant 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 a commission may direct,
including, if death results to one or more of the victims, the
penalty of death. In this paragraph, the term `serious bodily
injury' has the meaning given that term in section 113(b)(2) of
title 18.
``(14) Mutilating or maiming.--An alien unlawful enemy
combatant 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 a 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.--An alien
unlawful enemy combatant 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 a
commission may direct, including the penalty of death.
``(16) Destruction of property in violation of the law of
war.--An alien unlawful enemy combatant 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 a commission may direct.
``(17) Using treachery or perfidy.--An alien unlawful enemy
combatant 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 a commission may direct.
``(18) Improperly using a flag of truce.--An alien unlawful
enemy combatant 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 a commission may direct.
``(19) Improperly using a distinctive emblem.--An alien
unlawful enemy combatant who intentionally uses a distinctive
emblem recognized by the law of war for combatant purposes in a
manner prohibited by the law of war shall be guilty of
improperly using a distinctive emblem and shall be subject to
whatever punishment a commission may direct.
``(20) Intentionally mistreating a dead body.--An alien
unlawful enemy combatant 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 a commission
may direct.
``(21) Rape.--An alien unlawful enemy combatant 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 a
commission may direct.
``(22) Hijacking or hazarding a vessel or aircraft.--An
alien unlawful enemy combatant subject to this title 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 a commission may direct,
including, if death results to one or more of the victims, the
penalty of death.
``(23) Terrorism.--An alien unlawful enemy combatant
subject to this title 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 a commission may direct, including, if death results
to one or more of the victims, the penalty of death.
``(24) Providing material support for terrorism.--An alien
unlawful enemy combatant 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 paragraph (23)), or who intentionally provides
material support or resources to an international terrorist
organization engaged in hostilities against the United States,
knowing that such organization has engaged or engages in
terrorism (as defined in paragraph (23)), shall be guilty of
the offense of providing material support for terrorism and
shall be subject to whatever punishment a commission may
direct. In this paragraph, the term `material support or
resources' has the meaning given that term in section 2339A(b)
of title 18.
``(25) Wrongfully aiding the enemy.--An alien unlawful
enemy combatant 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 co-belligerents shall be guilty of the
offense of wrongfully aiding the enemy and shall be subject to
whatever punishment a commission may direct.
``(26) Spying.--An alien unlawful enemy combatant 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 a commission may direct, including the penalty of
death.
``(27) Conspiracy.--An alien unlawful enemy combatant 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 a
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
``A military commission under this chapter may try offenses and
impose punishments for perjury, false testimony, or obstruction of
justice related to military commissions under this chapter.
``Sec. 950x. Contempt
``A military commission under this chapter 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 at the beginning of 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:
``47A. Military Commissions................................. 948a''.
(b) Conforming Amendment to UCMJ.--Section 836(a) of title 10,
United States Code (article 36(a) of the Uniform Code of Military
Justice)), is amended by inserting ``, except as provided in chapter
47A of this title,'' after ``but which may not''.
(c) Submittal of Procedures to Congress.--Not later than 90 days
after the date of the enactment of this Act, the Secretary of Defense
shall submit to the Committees on Armed Services 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)).
SEC. 4. CLARIFICATION OF CONDUCT CONSTITUTING WAR CRIME OFFENSE UNDER
FEDERAL CRIMINAL CODE.
(a) Applicability Only to Serious Violations of Common Article 3.--
Section 2441 of title 18, United States Code is amended--
(1) by striking paragraph (3) of subsection (c) and
inserting the following:
``(3) which constitutes a serious violation of common
Article 3 of the 1949 Geneva Conventions, when committed in the
context of and in association with an armed conflict not of an
international character; or''; and
(2) by adding at the end the following new subsection:
``(d) Covered Common Article 3 Violations.--
``(1) Serious violations.--In subsection (c)(3), the term
`serious violation of common Article 3 of the 1949 Geneva
Conventions' means any of the following:
``(A) Torture.--The act of a person who commits, or
conspires or attempts to commit, an act specifically
intended to inflict severe physical pain or suffering
or severe mental pain or suffering (as such term is
defined in section 2340(2) of this title), other than
pain or suffering incidental to lawful sanctions, upon
another person within his custody or physical control
for the purpose of obtaining information or a
confession, punishment, intimidation, coercion, or any
reason based on discrimination of any kind.
``(B) Cruel or inhuman treatment.--The act of a
person who commits, or conspires or attempts to commit,
an act intended to inflict severe physical pain or
suffering or severe mental pain or suffering (as such
term is defined in section 2340(2) of this title),
other than pain or suffering incidental to lawful
sanctions, and including severe physical abuse, upon
another person within his custody or physical control.
``(C) Performing biological experiments.--The act
of a person who subjects, or conspires or attempts to
subject, one or more persons within his custody or
physical control to biological experiments and in so
doing endangers the body or health of such person or
persons.
``(D) Murder.--The act of a person who
intentionally kills, or conspires or attempts to kill,
or kills whether intentionally or unintentionally in
the course of committing any other offense under this
section, one or more persons taking no active part in
the hostilities, including those placed hors de combat
by sickness, wounds, detention, or any other cause.
``(E) Mutilation or maiming.--The act of a person
who intentionally injures, or conspires or attempts to
injure, or injures whether intentionally or
unintentionally in the course of committing any other
offense under this section, one or more persons taking
no active part in the hostilities, including those
placed hors de combat by sickness, wounds, detention,
or any other cause, by disfiguring the person or
persons by any mutilation thereof or by permanently
disabling any member, limb, or organ of his body,
without any legitimate medical or dental purpose.
``(F) Intentionally causing great suffering or
serious injury.--The act of a person who intentionally
causes, or conspires or attempts to cause, serious
bodily injury (as such term is defined in section
113(b)(2) of this title) to one or more persons taking
no active part in the hostilities, including those
placed hors de combat by sickness, wounds, detention,
or any other cause.
``(G) Rape.--The act of a person who forcibly or
with coercion or threat of force wrongfully invades, or
conspires or attempts to invade, the body of a person
by penetrating, however slightly, the anal or genital
opening of the victim with any part of the body of the
accused or with any foreign object.
``(H) Sexual assault or abuse.--The act of a person
who forcibly or with coercion or threat of force
engages, or conspires or attempts to engage, in sexual
contact (as such term is defined in section 2246(3) of
this title) with one or more persons, or causes, or
conspires or attempts to cause, one or more persons to
engage in sexual contact (as so defined).
``(I) Taking hostages.--The act of a person who--
``(i) 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; or
``(ii) attempts to engage or conspires to
engage in conduct under clause (i).
``(2) Inapplicability of specified provisions with respect
to certain conduct.--The intent specified for the conduct
stated in subparagraphs (D), (E), and (F) of paragraph (1)
precludes the applicability of those subparagraphs with regard
to--
``(A) collateral damage; or
``(B) death, damage, or injury incident to a lawful
attack.''.
(b) Retroactive Applicability.--The amendments made by this section
shall take effect as of November 26, 1997, as if enacted immediately
after the amendments made by section 583 of Public Law 105-118 (as
amended by section 4002 of Public Law 107-273).
SEC. 5. JUDICIAL REVIEW.
Section 2241 of title 28, United States Code, is amended by
striking both the subsection (e) added by section 1005(e)(1) of Public
Law 109-148 (119 Stat. 2742) and the subsection (e) added by section
1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the
following new subsection (e):
``(e)(1) 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 the enactment of the Military Commissions Act
of 2006, 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.
``(2) 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 Secretary of Defense may conduct a new
Combatant Status Review Tribunal.
``(3) Review shall be had only of final judgments of military
commissions as provided for pursuant to section 950g of title 10,
United States Code.
``(4) 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 (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
Geneva Conventions, with the exception of the obligations imposed by
subsections 1(b) and 1(d) of such Article .
(b) Rights Not Judicially Enforceable.--
(1) In general.--No person in any habeas action or any
other action may invoke the Geneva Conventions or any protocols
thereto as a source of rights, whether directly or indirectly,
for any purpose in any court of the United States or its States
or territories.
(2) Construction.--Paragraph (1) may not be construed to
affect the obligations of the United States under the Geneva
Conventions.
(c) Geneva Conventions Defined.--In this section, the term ``Geneva
Conventions'' means the international conventions signed at Geneva on
August 12, 1949, including common Article 3.
SEC. 7. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING TO
PROTECTION OF CERTAIN UNITED STATES GOVERNMENT PERSONNEL.
(a) Counsel and Investigations.--Section 1004(b) of the Detainee
Treatment Act of 2005 (42 U.S.C. 2000dd-1(b)) is amended--
(1) by striking ``may provide'' and inserting ``shall
provide'';
(2) by inserting ``or investigation'' after ``criminal
prosecution''; and
(3) by inserting ``whether before United States courts or
agencies, foreign courts or agencies, or international courts
or agencies,'' after ``described in that subsection''.
(b) Protection of Personnel.--Section 1004 of the Detainee
Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to
any criminal prosecution that--
(1) relates to the detention and interrogation of aliens
described in such section;
(2) is grounded in section 2441(c)(3) of title 18, United
States Code; and
(3) relates to actions occurring between September 11,
2001, and December 30, 2005.
SEC. 8. RETROACTIVE APPLICABILITY.
This Act shall take effect on the date of the enactment of this Act
and shall apply retroactively, including--
(1) to any aspect of the detention, treatment, or trial of
any person detained at any time since September 11, 2001; and
(2) to any claim or cause of action pending on or after the
date of the enactment of this Act.
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Referred to the Committee on Armed Services, and in addition to the Committees on the Judiciary, and International Relations, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Armed Services, and in addition to the Committees on the Judiciary, and International Relations, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Armed Services, and in addition to the Committees on the Judiciary, and International Relations, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Armed Services, and in addition to the Committees on the Judiciary, and International Relations, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Committee Consideration and Mark-up Session Held.
Ordered to be Reported (Amended) by the Yeas and Nays: 52 - 8.
Reported (Amended) by the Committee on Armed Services. H. Rept. 109-664, Part I.
Reported (Amended) by the Committee on Armed Services. H. Rept. 109-664, Part I.
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House Committee on Judiciary Granted an extension for further consideration ending not later than Sept. 18, 2006.
House Committee on International Relations Granted an extension for further consideration ending not later than Sept. 18, 2006.
House Committee on Judiciary Granted an extension for further consideration ending not later than Sept. 22, 2006.
House Committee on International Relations Granted an extension for further consideration ending not later than Sept. 22, 2006.
Committee Consideration and Mark-up Session Held.
Ordered to be Reported by the Yeas and Nays: 20 - 19.
House Committee on Judiciary Granted an extension for further consideration ending not later than Sept. 25, 2006.
Committee on International Relations discharged.
Committee on International Relations discharged.
Reported (Amended) by the Committee on Judiciary. H. Rept. 109-664, Part II.
Reported (Amended) by the Committee on Judiciary. H. Rept. 109-664, Part II.
Placed on the Union Calendar, Calendar No. 409.