A BILL

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A BILL

Page 1

109

CONGRESS

ESSION

__________

To facilitate bringing to justice terrorists and other unlawful enemy com-

batants through full and fair trials by military

commissions, and for other purposes.

IN THE

OF THE UNITED STATES

introduced the following bill; which was read

twice and referred to the Committee on

A BILL

To facilitate bringing to justice terrorists and other

unlawful enemy combatants through full and

fair trials by military commissions, and for

other purposes.

Be it enacted by the Senate and House of Repre-

sentatives of the United States of America in Congress

assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the �Military Commis-

sions Act of 2006�.

SEC. 2. FINDINGS.

Congress makes the following findings:

(1) For more than 10 years, the al Qaeda ter-

rorist organization has waged an unlawful war of

violence and terror against the United States and

its allies. Al Qaeda was involved in the bombing

Page 2

of the World Trade Center in New York City in

1993, the bombing of the United States Embassies

in Kenya and Tanzania in 1998, and the attack on

the U.S.S. Cole in Yemen in 2000. On September

11, 2001, al Qaeda launched the most deadly for-

eign attack on United States soil in history. Nine-

teen al Qaeda operatives hijacked four commercial

aircraft and piloted them into the World Trade

Center Towers in New York City and the head-

quarters of the United States Department of De-

fense at the Pentagon, and downed United Airlines

Flight 93. The attack destroyed the Towers, se-

verely damaged the Pentagon, and resulted in the

deaths of approximately 3,000 innocent people.

(2) Following the attacks on the United

States on September 11th, Congress recognized the

existing hostilities with al Qaeda and affiliated ter-

rorist organizations and, by the Authorization for

the Use of Military Force Joint Resolution (Public

Law 107-40), recognized that �the President has

authority under the Constitution to take action to

deter and prevent acts of international terrorism

against the United States� and authorized the

President �to use all necessary and appropriate

force against those nations, organizations, or per-

Page 3

sons he determines planned, authorized, commit-

ted, or aided the terrorist attacks that occurred on

September 11, 2001 . . . in order to prevent any fu-

ture acts of international terrorism against the

United States by such nations, organizations or

persons.�

(3) The President�s authority to convene

military commissions arises from the Constitu-

tion�s vesting in the President of the executive

power and the power of Commander in Chief of

the Armed Forces. As the Supreme Court of the

United States recognized in Madsen v. Kinsella,

343 U.S. 341, 346-48 (1952), �[s]ince our nation�s

earliest days, such commissions have been consti-

tutionally recognized agencies for meeting many

urgent governmental responsibilities related to

war. . . . They have taken many forms and borne

many names. Neither their procedure nor their ju-

risdiction has been prescribed by statute. It has

been adapted in each instance to the need that

called it forth.�

(4) In exercising the authority vested in the

President by the Constitution and laws of the

United States, including the Authorization for Use

of Military Force Joint Resolution, and in accor-

Page 4

dance with the law of war, the President has de-

tained enemy combatants in the course of this

armed conflict and issued the Military Order of

November 13, 2001, to govern the �Detention,

Treatment, and Trial of Certain Non-Citizens in

the War Against Terrorism.� This Order author-

ized the Secretary of Defense to establish military

commissions to try individuals subject to the Order

for any offenses triable by military commission

that such individuals are alleged to have commit-

ted.

(5) The Supreme Court in Hamdan v. Rums-

feld, 126 S. Ct. 2749 (2006), held that the military

commissions established by the Department of De-

fense under the President�s Military Order of No-

vember 13, 2001, were not consistent with certain

aspects of United States domestic law. The Con-

gress may by law, and does by enactment of this

statute, eliminate any deficiency of statutory au-

thority to facilitate bringing terrorists with whom

the United States is engaged in armed conflict to

justice for violations of the law of war and other

offenses triable by military commissions. The

prosecution of such individuals by military com-

missions established and conducted consistent with

Page 5

this Act fully complies with the Constitution, the

laws of the United States, treaties to which the

United States is a party, and the law of war.

(6) The use of military commissions is par-

ticularly important in this context because other al-

ternatives, such as the use of courts-martial, gener-

ally are impracticable. The terrorists with whom

the United States is engaged in armed conflict have

demonstrated a commitment to the destruction of

the United States and its people, to the violation of

the law of war, and to the abuse of American legal

processes. In a time of ongoing armed conflict, it

generally is neither practicable nor appropriate for

combatants like al Qaeda terrorists to be tried be-

fore tribunals that include all of the procedures as-

sociated with courts-martial.

(7) Many procedures for courts-martial

would not be practicable in trying the unlawful en-

emy combatants for whom this Act provides for

trial by military commission. For instance, court-

martial proceedings would in certain circum-

stances�

(A) compel the Government to share

classified information with the accused,

even though members of al Qaeda cannot be

Page 6

trusted with our Nation�s secrets and it

would not be consistent with the national se-

curity of the United States to provide them

with access to classified information;

(B) exclude the use of hearsay evi-

dence even though such evidence often will

be the best and most reliable evidence that

the accused has committed a war crime. For

example, many witnesses in military com-

mission trials are likely to be foreign nation-

als who are not amenable to process or may

be precluded for national security reasons

from entering the United States or Guan-

tanamo Bay to testify. Other witnesses may

be unavailable because of military necessity,

incarceration, injury, or death. In short, ap-

plying the hearsay rules from the Manual for

Courts-Martial or from the Federal Rules of

Evidence would make it virtually impossible

to bring terrorists to justice for their viola-

tions of the law of war;

rules for sworn and authenticated statements

when, due to the exigencies of wartime, the

United States cannot safely require members

Page 7

of the armed forces to gather evidence on

the battlefield, including civilian eye-

witness testimony, as though they were po-

lice officers. Nor can the United States di-

vert members from the front lines and their

duty stations to attend military commission

proceedings. Therefore, strict compliance

with such rules for evidence gathered on the

battlefield would be impracticable, given the

preeminent focus on military operations and

the chaotic nature of combat.

(8) The exclusive judicial review for which

this Act, and the Detainee Treatment Act of 2005,

provides is without precedent in the history of

armed conflicts involving the United States, ex-

ceeds the scope of judicial review historically pro-

vided for by military commissions, and is chan-

neled in a manner appropriately tailored to�

(A) the circumstances of the conflicts

between the United States and international

terrorist organizations; and

(B) the need to ensure fair treatment

of those detained as enemy combatants, to

minimize the diversion of members of the

armed forces from other wartime duties, and

Page 8

to protect the national security of the United

States.

(9) In early 2002, as memorialized in a

memorandum dated February 7, 2002, the Presi-

dent determined that common Article 3 of the Ge-

neva Conventions did not apply with respect to the

United States conflict with al Qaeda because al

Qaeda was not a party to those treaties and the

conflict with al Qaeda was an armed conflict of an

international character. That was the interpretation

of the United States prior to the Supreme Court�s

decision in Hamdan on June 29, 2006. Hamdan�s

statement to the contrary makes it appropriate to

clarify the standards imposed by common Article

3. This Act makes clear that the prohibitions

against cruel, inhuman, and degrading treatment

found in the Detainee Treatment Act of 2005 fully

satisfy the obligations of the United States with re-

spect to the standards for detention and treatment

established by section 1 of common Article 3, ex-

cept for those obligations arising under paragraphs

(b) and (d). In addition, the Act makes clear that

the Geneva Conventions are not a source of judi-

cially enforceable individual rights, thereby reaf-

firming that enforcement of the obligations im-

Page 9

posed by the Conventions is a matter between the

nations that are parties to them.

SEC. 3. AUTHORIZATION FOR MILITARY COMMIS-

SIONS.

(a) I

ENERAL

.�The President is authorized to

establish military commissions for violations of the law

of war and other offenses triable by military commissions

as provided in section 4 of this Act (chapter 47A of title

10).

(b) C

ONSTRUCTION

.�The authority granted in

subsection (a) shall not be construed to limit the authority

of the President under the Constitution of the United

States or the laws thereof to establish military commis-

sions on the battlefield, in occupied territories, or in other

armed conflicts should circumstances so require.

COPE OF

UNISHMENT

UTHORITY

.�A mili-

tary commission established pursuant to subsection (a)

shall have authority to impose upon any person found

guilty after a proceeding under this Act a sentence that is

appropriate to the offense or offenses for which there was

a finding of guilt, which sentence may include death

where authorized by this Act, imprisonment for life or a

term of years, payment of a fine or restitution, or such

other lawful punishment or condition of punishment as

the commission shall determine to be proper.

Page 10

(d) E

XECUTION OF

UNISHMENT

.�The Secretary of

Defense shall be authorized to carry out a sentence of

punishment decreed by a military commission pursuant

to subsection (a) in accordance with such procedures as

the Secretary may prescribe.

(e) A

NNUAL

EPORT ON

RIALS BY

ILITARY

OMMISSION

.�

(1) A

NNUAL

EPORT

EQUIRED

.�Not later

than December 31 each year, the Secretary of De-

fense shall submit to the Armed Services Commit-

tees of the House of Representatives and the Sen-

ate an annual report on the conduct of trials by

military commissions established pursuant to sub-

section (a) during such year.

(2) F

ORM

.�Each such report shall be sub-

mitted in unclassified form, with classified annex,

if necessary and consistent with national security.

SEC. 4. MILITARY COMMISSIONS

(a) M

ILITARY

OMMISSIONS

.�

(1) I

ENERAL

.�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

�Sec.

�948a. Definitions.

�948b. Military commissions generally.

Page 11

�948c. Persons subject to military commissions.

�948d. Jurisdiction of military commissions.

�� 948a. Definitions

�In this chapter:

�(1) A

LIEN

.�The term �alien� means an in-

dividual who is not a citizen of the United States.

�(2) C

LASSIFIED

NFORMATION

.� 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 En-

ergy Act of 1954 (42 U.S.C. 2014(y)).

�(3) C

OMMISSION

.�The term �commission�

means a military commission established pursuant

to chapter 47A of title 10, United States Code.

�(4) C

ONVENING

UTHORITY

.�The term

�convening authority� shall be the Secretary of De-

fense or his designee.

�(5) L

AWFUL

NEMY

OMBATANT

.�The

term �lawful enemy combatant� means an individ-

ual determined by or under the authority of the

Page 12

President or Secretary of Defense (whether on an

individualized or collective basis) to be: (i) a

member of the regular forces of a State party en-

gaged in hostilities against the United States or its

co-belligerents; (ii) a member of a militia, volun-

teer corps, or organized resistance movement be-

longing to a State party engaged in such hostilities,

which are under responsible command, wear a

fixed distinctive sign recognizable at a distance,

carry their arms openly, and abide by the law of

war; or (iii) a member of a regular armed forces

who professes allegiance to a government engaged

in such hostilities, but not recognized by the

United States.

�(6) S

ECRETARY

.�The term �Secretary�

means the Secretary of Defense.

�(7) U

NLAWFUL

NEMY

OMBATANT

.�The

term �unlawful enemy combatant� means an indi-

vidual determined by or under the authority of the

President or the Secretary of Defense�

�(A) to be part of or affiliated with a

force or organization�including but not

limited to al Qaeda, the Taliban, any interna-

tional terrorist organization, or associated

forces�engaged in hostilities against the

Page 13

United States or its co-belligerents in viola-

tion of the law of war;

�(B) to have committed a hostile act

in aid of such a force or organization so en-

gaged; or

�(C) to have supported hostilities in

aid of such a force or organization so en-

gaged.

�This definition includes any individual de-

termined by a Combatant Status Review Tribunal,

before the effective date of this Act, to have been

properly detained as an enemy combatant, but ex-

cludes any alien determined by the President or the

Secretary of Defense (whether on an individual-

ized or collective basis), or by any competent tri-

bunal established under their authority, to be (i) a

lawful enemy combatant (including a prisoner of

war), or (ii) a protected person whose trial by these

military commissions would be inconsistent with

Articles 64-76 of the Geneva Convention Relative

to the Protection of Civilian Persons in Time of

War of August 12, 1949. For purposes of this sec-

tion, the term �protected person� refers to the cate-

gory of persons described in Article 4 of the Ge-

Page 14

neva Convention Relative to the Protection of Ci-

vilian Persons in Time of War of August 12, 1949.

�(6) G

ENEVA

ONVENTIONS

.�The term

�Geneva Conventions� means the international

conventions signed at Geneva on August 12, 1949,

including common Article 3.

�� 948b. Military commissions generally

�(a) P

URPOSE

.�This chapter codifies and estab-

lishes procedures governing the use of military commis-

sions to try unlawful enemy combatants for violations of

the law of war and other offenses triable by military

commissions. Although military commissions tradition-

ally have been constituted by order of the President, the

decision of the Supreme Court in Hamdan v. Rumsfeld

makes it both necessary and appropriate to codify proce-

dures for military commissions as set forth herein.

�(b) R

ULE OF

ONSTRUCTION

.�The procedures for

military commissions set forth in this chapter are mod-

eled after the procedures established for courts-martial in

the Uniform Code of Military Justice. However, it would

be neither desirable nor practicable to try unlawful en-

emy combatants by court-martial procedures. The trial of

such persons by military commission presents new chal-

lenges that require that interpretations of this Act not be

unduly influenced by the rules and procedures developed

Page 15

for courts-martial. Therefore, no construction or applica-

tion of chapter 47 of this title shall be binding in the con-

struction or application of this chapter.

�(c) Alien unlawful enemy combatants may be

tried for violations of the law of war and other offenses

triable by military commissions committed against the

United States or its co-belligerents before, on, or after

September 11, 2001.

�(d) A military commission established under this

chapter is a regularly constituted court, affording all the

necessary �judicial guarantees which are recognized as

indispensable by civilized peoples� for purposes of com-

mon Article 3 of the Geneva Conventions.

�� 948c. Persons subject to military commissions

�Alien unlawful enemy combatants, as defined in

section 948a of this title, shall be subject to trial by mili-

tary commissions as set forth in this chapter.

�� 948d. Jurisdiction of military commissions

�(a) Military commissions shall have jurisdiction

to try any offense made punishable under this chapter,

when committed by an alien unlawful enemy combatant.

Military commissions shall not have jurisdiction over

lawful enemy combatants. Lawful enemy combatants

who violate the law of war are subject to chapter 47 of

Title 10, United States Code. Courts-martial established

Page 16

under chapter 47 shall have jurisdiction to try a lawful

enemy combatant for any offense made punishable under

this chapter.

�(b) Military commissions shall not have jurisdic-

tion over any individual determined by the President or

the Secretary of Defense (whether on an individualized

or collective basis), or by any competent tribunal estab-

lished under their authority, to be a �protected person�

whose trial by these military commissions would be in-

consistent with Articles 64-76 of the Geneva Convention

Relative to the Protection of Civilian Persons in Time of

War of August 12, 1949. Such persons shall be tried in

courts-martial or other tribunals consistent with their

status under the Geneva Conventions. For purposes of

this section, the term �protected person� refers to the

category of persons described in Article 4 of the Geneva

Convention Relative to the Protected of Civilian Persons

in Time of War of August 12, 1949.

�(c) Military commissions may, under such limita-

tions as the Secretary of Defense may prescribe, adjudge

any punishment not forbidden by this chapter, including

the penalty of death where authorized by this chapter.

�SUBCHAPTER II�COMPOSITION OF MILITARY

COMMISSIONS

�Sec.

�948h. Who may convene military commissions.

�948i. Who may serve on military commissions.

Page 17

�948j. Military judge of a military commission.

�948k. Detail of trial counsel and defense counsel.

�948l. Detail or employment of reporters and interpreters.

�948m. Number of members; excuse of members; absent and

additional members.

�� 948h. Who may convene military commissions

�(a) The Secretary may issue orders convening

military commissions to try individuals under this chap-

ter.

�(b) The Secretary may delegate his authority to

convene military commissions or to promulgate any

regulations under this chapter.

�� 948i. Who may serve on military commissions

�(a) I

ENERAL

.�Any commissioned officer of

the United States armed forces on active duty is eligible

to serve on a military commission. Eligible commis-

sioned officers shall include, without limitation, reserve

personnel on active duty, National Guard personnel on

active duty in Federal service, and retired personnel re-

called to active duty.

�(b) D

ETAIL OF

EMBERS

.�When convening a

commission, the convening authority shall detail as

members thereof such members of the armed forces as, in

his opinion, are fully qualified for the duty by reason of

age, education, training, experience, length of service,

and judicial temperament. No member of an armed force

shall be eligible to serve as a member of a commission

Page 18

when he is the accuser or a witness for the prosecution or

has acted as an investigator or counsel in the same case.

�(c) E

XCUSE OF

EMBERS

.�Before a commission

is assembled for the trial of a case, the convening author-

ity may excuse a member of the commission from par-

ticipating in the case.

�� 948j. Military judge of a military commission

�(a) D

ETAIL OF A

ILITARY

UDGE

.�A military

judge shall be detailed to each commission. The Secre-

tary shall prescribe regulations providing for the manner

in which military judges are detailed to such commis-

sions. The military judge shall preside over each com-

mission to which he has been detailed. The convening

authority shall not prepare or review any report concern-

ing the effectiveness, fitness, or efficiency of the military

judge so detailed relating to his performance of duty as a

military judge.

�(b) E

LIGIBILITY

.�A military judge shall be a

commissioned officer of the armed forces who is a mem-

ber of the bar of a Federal court or a member of the bar

of the highest court of a State, and who is certified to be

qualified for duty as a military judge by the Judge Advo-

cate General of the armed force of which such military

judge is a member. A commissioned officer who is certi-

fied to be qualified for duty as a military judge of a

Page 19

commission may perform such other duties as are as-

signed to him by or with the approval of that Judge Ad-

vocate General or his designee.

�(c) I

NELIGIBILITY OF

ERTAIN

NDIVIDUALS

.�No

person is eligible to act as military judge in any case in

which he is the accuser or a witness or has acted as inves-

tigator or a counsel in the same case.

�(d) C

ONSULTATION WITH

EMBERS

; I

NELIGIBILITY

OTE

.�Except as provided in section 949d of this ti-

tle, the military judge detailed to the commission may not

consult with the members of the commission except in

the presence of the accused, trial counsel, and defense

counsel, nor may he vote with the members of the com-

mission.

�� 948k. Detail of trial counsel and defense counsel

�(a) D

ETAIL OF

OUNSEL

ENERALLY

.�

�(1) Trial counsel and military defense

counsel shall be detailed for each commission.

�(2) Assistant trial counsel and assistant and

associate military defense counsel may be detailed

for each commission.

�(3) Military defense counsel shall be de-

tailed as soon as practicable after the swearing of

charges against the person accused.

Page 20

�(4) The Secretary shall prescribe regula-

tions providing for the manner in which counsel

are detailed for military commissions and for the

persons who are authorized to detail counsel for

such military commissions.

�(b) T

RIAL

OUNSEL

.�Subject to subsection (d),

trial counsel detailed for a military commission under

this chapter must be�

�(1) a judge advocate (as that term is defined

in section 801 of this title) who is�

�(A) a graduate of an accredited law

school or is a member of the bar of a Federal

court or of the highest court of a State; and

�(B) certified as competent to perform

duties as trial counsel before general courts-

martial by the Judge Advocate General of

the armed force of which he is a member; or

�(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 commission pursuant to regula-

tions prescribed by the Secretary.

�(c) M

ILITARY

EFENSE

OUNSEL

.�Subject to

subsection (d), military defense counsel detailed for a

Page 21

military commission under this chapter must be a judge

advocate (as so defined) who is�

�(1) a graduate of an accredited law school

or a member of the bar of a Federal court or of the

highest court of a State; and

�(2) certified as competent to perform duties

as defense counsel before general courts-martial by

the Judge Advocate General of the armed force of

which he is a member.

�(d) I

NELIGIBILITY OF

ERTAIN

NDIVIDUALS

.�No

person who has acted as an investigator, military judge,

or member of a military commission under this chapter

may act later as trial counsel or defense counsel in the

same case. No person who has acted for the prosecution

may act later in the same case for the defense, nor may

any person who has acted for the defense act later in the

same case for the prosecution.

�� 948l. Detail or employment of reporters and inter-

preters

�(a) C

OURT

EPORTERS

.�Under such regulations

as the Secretary may prescribe, the convening authority

of a military commission shall detail or employ qualified

court reporters, who shall record the proceedings of and

testimony taken before that commission.

Page 22

�(b) I

NTERPRETERS

.�Under like regulations the

convening authority may detail or employ interpreters

who shall interpret for the commission, and, as necessary,

for trial counsel and defense counsel.

�(c) T

RANSCRIPT

; R

ECORD

.�The transcript shall

be under the control of the convening authority, which is

responsible for preparing the record of the proceedings.

�� 948m. Number of members; excuse of members;

absent and additional members

�(a) N

UMBER OF

EMBERS

.�(1) A military com-

mission 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 mem-

bers prescribed by section 949m(c) of this title.

�(b) E

XCUSE OF

EMBERS

.�No member of a mili-

tary commission may be absent or excused after the

commission has been assembled for the trial of the ac-

cused unless excused�

�(1) as a result of challenge;

�(2) by the military judge for physical dis-

ability or other good cause; or

�(3) by order of the convening authority for

good cause.

Page 23

�(c) A

BSENT AND

DDITIONAL

EMBERS

.�

Whenever a military commission is reduced below the

requisite number of members, the trial may not proceed

unless the convening authority details new members suf-

ficient to provide not less than the requisite number. The

trial may proceed with the new members present after the

recorded evidence previously introduced before the

members of the commission has been read to the com-

mission in the presence of the military judge, the accused

(except as provided by section 949d of this title), and

counsel for both sides.

�SUBCHAPTER III�PRE-TRIAL PROCEDURE

�Sec.

�948q. Charges and specifications.

�948r. Compulsory self-incrimination prohibited; statements

obtained by torture.

�948s. Service of charges.

�� 948q. Charges and specifications

�(a) C

HARGES AND

PECIFICATIONS

.�Charges and

specifications against an accused shall be signed by a

person subject to chapter 47 of this title under oath before

a commissioned officer of the armed forces authorized to

administer oaths and shall state�

�(1) that the signer has personal knowledge

of, or reason to believe, the matters set forth

therein; and

�(2) that they are true in fact to the best of

his knowledge and belief.

Page 24

�(b) N

OTICE TO

CCUSED

.�Upon the swearing of

the charges and specifications in accordance with subsec-

tion (a), the accused shall be informed of the charges and

specifications against him as soon as practicable.

� 948r. Compulsory self-incrimination prohibited;

statements obtained by torture

�(a) I

ENERAL

.�No person shall be required to

testify against himself at a commission proceeding.

�(b) S

TATEMENTS

BTAINED BY

ORTURE

.�A

statement obtained by use of torture, as defined in 18

U.S.C. � 2340, whether or not under color of law, shall

not be admissible against the accused, except against a

person accused of torture as evidence the statement was

made.

�(c) S

TATEMENTS NOT

BTAINED BY

ORTURE

.�

No otherwise admissible statement may be received in

evidence, including statements allegedly obtained by co-

ercion, if the military judge finds that the circumstances

under which the statement was made render it unreliable

or lacking in probative value.

�� 948s. Service of charges

�The trial counsel assigned to the case shall cause

to be served upon the accused and counsel a copy of the

charges upon which trial is to be had in English and, if

appropriate, in another language that the accused under-

Page 25

stands, sufficiently in advance of trial to prepare a de-

fense.

�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.

�� 949a. Rules

�(a) P

ROCEDURES

.�Pretrial, trial, and post-trial

procedures, including elements and modes of proof, for

cases triable by military commission under this chapter

shall be prescribed by the Secretary, but may not be con-

trary to or inconsistent with this chapter.

�(b) R

ULES OF

VIDENCE

.�Subject to such excep-

tions and limitations as the Secretary may provide by

regulation, evidence in a military commission shall be

admissible if the military judge determines that the evi-

dence would have probative value to a reasonable person.

�(c) H

EARSAY

VIDENCE

.�Hearsay evidence is

admissible, unless the military judge finds that the cir-

cumstances render it unreliable or lacking in probative

Page 26

value, provided that the proponent of the evidence makes

the evidence known to the adverse party in advance of

trial or hearing.

�The military judge shall exclude any evidence the

probative value of which is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

misleading the members of the commission, or by con-

siderations of undue delay, waste of time, or needless

presentation of cumulative evidence.

�� 949b. Unlawfully influencing action of military

commission

�(a) I

ENERAL

.�(1) No authority convening a

military commission under this chapter may censure, rep-

rimand, or admonish the commission or any member,

military judge, or counsel thereof, with respect to the

findings or sentence adjudged by the commission, or with

respect to any other exercises of its or his functions in the

conduct of the proceedings.

�(2) No person may attempt to coerce or, by any

unauthorized means, influence the action of a commis-

sion or any member thereof, in reaching the findings or

sentence in any case, or the action of any convening, ap-

proving, or reviewing authority with respect to his judi-

cial acts.

Page 27

�(3) The foregoing provisions of this subsection

shall not apply with respect to�

�(A) general instructional or informational

courses in military justice if such courses are de-

signed solely for the purpose of instructing mem-

bers of a command in the substantive and proce-

dural aspects of military commissions; or

�(B) statements and instructions given in

open proceedings by the military judge or counsel.

�(b) P

ROHIBITION ON

ONSIDERATION OF

CTIONS

OMMISSION IN

VALUATION OF

ITNESS

. In the

preparation of an effectiveness, fitness, or efficiency re-

port or any other report or document used in whole or in

part for the purpose of determining whether a commis-

sioned officer of the armed forces is qualified to be ad-

vanced, in grade, or in determining the assignment or

transfer of any such officer or in determining whether

any such officer should be retained on active duty, no

person may�

�(1) consider or evaluate the performance of

duty of any member of a military commission un-

der this chapter; or

�(2) give a less favorable rating or evalua-

tion to any commissioned officer because of the

zeal with which such officer, in acting as counsel,

Page 28

represented any accused before a military commis-

sion under this chapter.

�� 949c. Duties of trial counsel and defense counsel

�(a) T

RIAL

OUNSEL

.�The trial counsel of a mili-

tary commission shall prosecute in the name of the

United States.

�(b) D

EFENSE

OUNSEL

.�(1) The accused shall be

represented in his defense before a military commission

as provided in this subsection.

�(2) The accused shall be represented by military

counsel detailed under section 948k of this title.

�(3) The accused may be represented by civilian

counsel if retained by him, provided that civilian coun-

sel�

�(A) is a United States citizen;

�(B) is admitted to the practice of law in a

State, district, territory, or possession of the United

States, or before a Federal court;

�(C) has not been the subject of any sanction

of disciplinary action by any court, bar, or other

competent governmental authority for relevant

misconduct;

�(D) has been determined to be eligible for

access to information classified at the level Secret

or higher; and

Page 29

�(E) has signed a written agreement to com-

ply with all applicable regulations or instructions

for counsel, including any rules of court for con-

duct during the proceedings.

�Civilian defense counsel shall protect any classi-

fied information received during the course of their rep-

resentation of the accused in accordance with all applica-

ble law governing the protection of classified informa-

tion, and shall not divulge such information to any person

not authorized to receive it.

�(4) If the accused is represented by civilian coun-

sel, military counsel detailed shall act as associate coun-

sel.

�(5) The accused is not entitled to be represented

by more than one military counsel. However, the person

authorized under regulations prescribed under section

948k of this title to detail counsel in his sole discretion

may detail additional military counsel.

�(6) Defense counsel may cross-examine each wit-

ness for the prosecution who testifies before the commis-

sion.

�� 949d. Sessions

�(a) S

ESSIONS

ITHOUT

RESENCE OF

EMBERS

.�

(1) At any time after the service of charges which have

been referred for trial by military commission, the mili-

Page 30

tary judge may call the commission into session without

the presence of the members for the purpose of�

�(A) hearing and determining motions rais-

ing defenses or objections which are capable of de-

termination 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 un-

der this chapter, whether or not the matter is ap-

propriate for later consideration or decision by the

members of the commission;

�(C) if permitted by regulations of the Sec-

retary, receiving the pleas of the accused; and

�(D) performing any other procedural func-

tion which may be performed by the military judge

under this chapter or under rules prescribed pursu-

ant to section 949a of this title and which does not

require the presence of the members of the com-

mission.

�(2) Except as provided in subsection (e), any pro-

ceedings under paragraph (1) shall be conducted in the

presence of the accused, defense counsel, and trial coun-

sel, and shall be made part of the record.

�(b) P

ROCEEDINGS IN

RESENCE OF

CCUSED

.�

Except as provided in subsections (c) and (e), all pro-

Page 31

ceedings of a military commission under this chapter

shall be in the presence of the accused, defense counsel,

and trial counsel, and shall be made a part of the record.

�(c) D

ELIBERATIONS OR

OTE OF

EMBERS

.�

When the members of the commission deliberate or vote,

only the members may be present.

�(d) P

UBLIC

ROCEEDINGS

.�(1) The military

commission shall hold open and public proceedings.

�(2) The military judge may close to the public all

or a part of the proceedings of a military commission un-

der this chapter only upon making a specific finding that

such closure is necessary to�

�(A) protect information the disclosure of

which could reasonably be expected to cause iden-

tifiable damage to the public interest or the na-

tional security, including intelligence or law en-

forcement sources, methods, or activities; or

�(B) ensure the physical safety of individu-

als.

�(e) L

IMITED

XCLUSION OF THE

CCUSED FOR THE

ROTECTION OF

LASSIFIED

NFORMATION

.�(1) The mili-

tary judge may, subject to the provisions of this subsec-

tion, permit the admission in a military commission un-

der this chapter of classified information outside the

presence of the accused.

Page 32

�(2) The military judge shall not exclude the ac-

cused from any portion of the proceeding except upon a

specific finding that extraordinary circumstances exist

such that�

�(A) the exclusion of the accused�

�(i) is necessary to protect classified

information the disclosure of which to the

accused could reasonably be expected to

cause identifiable damage to the national se-

curity, including intelligence or law en-

forcement sources, methods, or activities; or

�(ii) is necessary to ensure the physi-

cal safety of individuals; or

�(iii) is necessary to prevent disrup-

tion of the proceedings by the accused; and

�(B) the exclusion of the accused�

�(i) is no broader than necessary; and

�(ii) will not deprive the accused of a

full and fair trial.

�(3)(A) A finding under paragraph (2) may be

based upon a presentation, including an ex parte or in

camera presentation, by either trial counsel or defense

counsel.

�(B) Before trial counsel may make a presentation

described in subparagraph (A) requesting the admission

Page 33

of classified evidence outside the presence of the ac-

cused, the head of the executive or military department or

governmental agency which has control over the matter

(after personal consideration by that officer) shall certify

in writing to the military judge that�

�(i) the disclosure of such classified infor-

mation to the accused could reasonably be ex-

pected to prejudice the national security; and

�(ii) such evidence has been declassified to

the maximum extent possible, consistent with the

requirements of national security.

�(4)(A) No evidence shall be admitted if the ac-

cused is not present for its admission or the evidence is

not otherwise provided to the accused, unless the evi-

dence is classified information and the military judge

makes a specific finding that�

�(i) consideration of the evidence by the

commission, without the presence of the accused,

is warranted; and

�(ii) admission of an unclassified summary

or redacted version of that evidence would not be

an adequate substitute and, in the case of testi-

mony, alternative methods to obscure the identity

of the witness are not adequate; and

Page 34

�(iii) admission of the evidence would not

deprive the accused of a full and fair trial.

�(B) If the accused is excluded from a portion of

the proceeding, the accused shall be provided with a re-

dacted transcript of the proceeding and, to the extent

practicable, an unclassified summary of any evidence in-

troduced. Under no circumstances shall such a summary

or redacted transcript compromise the interests warrant-

ing the exclusion of the accused under this subsection.

�(5)(A) Military defense counsel shall be present

and able to participate in all trial proceedings, and shall

be given access to all evidence admitted under subpara-

graph (4).

�(B) Civilian defense counsel shall be permitted to

be present and to participate in all trial proceedings, and

shall be given access to evidence admitted under sub-

paragraph (4), provided that civilian defense counsel has

obtained the necessary security clearances and that such

presence and access are consistent with regulations that

the Secretary may prescribe to protect classified informa-

tion.

�(C) Notwithstanding any other provision of law,

any defense counsel who receives classified information

admitted pursuant to subparagraph (4) shall not be obli-

Page 35

gated to, and may not, disclose that evidence to the ac-

cused.

�(f) A

DMISSION OF

TATEMENTS OF

CCUSED

.�(1)

Notwithstanding any other provision in this chapter, no

statement made by the accused during an interrogation,

even if otherwise classified, may be admitted into evi-

dence in a military commission under this chapter unless

the accused is present for its admission or the evidence is

otherwise provided to the accused.

�(2) For purposes of this subsection, a �statement�

is a statement communicated knowingly and directly by

the accused in response to questioning by foreign or

United States military, intelligence, or criminal investiga-

tive personnel. This paragraph shall not be construed to

prevent the redaction of intelligence sources or methods,

which do not constitute statements of the accused, from

any document provided to the accused or admitted into

evidence.

�� 949e. Continuances

�The military judge may, for reasonable cause,

grant a continuance to any party for such time, and as of-

ten, as may appear to be just.

�� 949f. Challenges

�(a) C

HALLENGES

UTHORIZED

.�The military

judge and members of the commission may be chal-

Page 36

lenged by the accused or the trial counsel for cause stated

to the commission. The military judge shall determine

the relevance and validity of the challenges for cause,

and may not receive a challenge to more than one person

at a time. Challenges by the trial counsel shall ordinarily

be presented and decided before those by the accused are

offered.

�(b) P

EREMPTORY

HALLENGES

.�Each accused

and the trial counsel is entitled to one peremptory chal-

lenge, but the military judge may not be challenged ex-

cept for cause.

�(c) C

HALLENGES

GAINST

DDITIONAL

EM-

BERS

.�Whenever additional members are detailed to the

court, and after any challenges for cause against such ad-

ditional members are presented and decided, each ac-

cused and the trial counsel are entitled to one peremptory

challenge against members not previously subject to per-

emptory challenge.

�� 949g. Oaths

�(a) I

ENERAL

.�(1) Before performing their re-

spective duties, military judges, members of commis-

sions, trial counsel, defense counsel, reporters, and inter-

preters shall take an oath to perform their duties faith-

fully.

Page 37

�(2) The form of the oath required by paragraph

(1), the time and place of the taking thereof, the manner

of recording the same, and whether the oath shall be

taken for all cases in which these duties are to be per-

formed or for a particular case, shall be as prescribed in

regulations of the Secretary. These regulations may pro-

vide that�

�(A) an oath to perform faithfully duties as a

military judge, trial counsel, or defense counsel,

may be taken at any time by any judge advocate or

other person certified to be qualified or competent

for duty; and

�(B) if such an oath is taken it need not

again be taken at the time the judge advocate, or

other person is detailed to that duty.

�(b) W

ITNESSES

.�Each witness before a military

commission under this chapter shall be examined on

oath.

�(c) O

ATH

EFINED

.�As used in this section,

�oath� includes an affirmation.

�� 949h. Former jeopardy

�(a) I

ENERAL

.�No person may, without his

consent, be tried by a commission a second time for the

same offense.

Page 38

�(b) S

COPE OF

RIAL

.�No proceeding in which

the accused has been found guilty by military commis-

sion upon any charge or specification is a trial in the

sense of this section until the finding of guilty has be-

come final after review of the case has been fully com-

pleted.

�� 949i. Pleas of the accused

�(a) P

LEA OF

UILTY

.�If an accused after a

plea of guilty sets up matter inconsistent with the plea, or

if it appears that he has entered the plea of guilty through

lack of understanding of its meaning and effect, or if he

fails or refuses to plead, a plea of not guilty shall be en-

tered in the record, and the commission shall proceed as

though he had pleaded not guilty.

�(b) F

INDING OF

UILT

FTER

UILTY

LEA

.�

With respect to any charge or specification to which a

plea of guilty has been made by the accused and accepted

by the military judge, a finding of guilty of the charge or

specification may be entered immediately without a vote.

This finding shall constitute the finding of the commis-

sion unless the plea of guilty is withdrawn prior to an-

nouncement of the sentence, in which event the proceed-

ings shall continue as though the accused had pleaded not

guilty.

Page 39

�� 949j. Opportunity to obtain witnesses and other

evidence

�(a) I

ENERAL

.�(1) Defense counsel in a mili-

tary commission under this chapter shall have a reason-

able opportunity to obtain witnesses and other evidence,

including evidence in the possession of the United States,

as specified in regulations prescribed by the Secretary.

�(2) Process issued in military commissions to

compel witnesses to appear and testify and to compel the

production of other evidence�

�(A) shall be similar to that which courts of

the United States having criminal jurisdiction may

lawfully issue; and

�(B) shall run to any place where the United

States shall have jurisdiction thereof.

�(b) T

REATMENT OF

ERTAIN

TEMS

.�The military

judge in a military commission under this chapter may,

upon a sufficient showing, authorize trial counsel in mak-

ing documents available to the defense through discovery

conducted pursuant to such rules as the Secretary shall

prescribe�

�(1) to delete specified items of classified

information from such documents;

�(2) to substitute an unclassified summary of

the information for such classified documents; or

Page 40

�(3) to substitute an unclassified statement

admitting relevant facts that classified information

would tend to prove.

�(c) D

ISCLOSURE OF

XCULPATORY

VIDENCE

.�

(1) As soon as practicable, trial counsel in a military

commission under this chapter shall disclose to the de-

fense the existence of any evidence known to trial coun-

sel that reasonably tends to exculpate the accused.

�(2) Exculpatory evidence that is classified may be

provided solely to defense counsel, and not the accused,

after in camera review by the military judge.

�(3) Before classified evidence may be withheld

from the accused under this subsection, the executive or

military department or governmental agency which has

control over the matter shall ensure and shall certify in

writing to the military judge that the disclosure of such

evidence to the accused could reasonably be expected to

prejudice the national security and that such evidence has

been declassified to the maximum extent possible, con-

sistent with the requirements of national security.

�(4) Any classified exculpatory evidence that is

not disclosed to the accused under this subsection�

�(A) shall be provided to military defense

counsel; and

Page 41

�(B) shall be provided to civilian defense

counsel, provided that civilian defense counsel has

obtained the necessary security clearances and ac-

cess to such evidence is consistent with regulations

that the Secretary may prescribe to protect classi-

fied 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, meth-

ods, or activities, or other national security inter-

ests.

�(5) Notwithstanding any other provision of law,

any defense counsel who receives evidence under this

subsection shall not be obligated to, and may not, dis-

close that evidence to the accused.

�� 949k. Defense of lack of mental responsibility

�(a) A

FFIRMATIVE

EFENSE

.�It is an affirmative

defense in a trial by military commission that, at the time

of the commission of the acts constituting the offense, the

accused, as a result of a severe mental disease or defect,

was unable to appreciate the nature and quality or the

wrongfulness of the acts. Mental disease or defect does

not otherwise constitute a defense.

Page 42

�(b) B

URDEN OF

ROOF

.�The accused has the

burden of proving the defense of lack of mental responsi-

bility by clear and convincing evidence.

�(c) F

INDINGS

OLLOWING

SSERTION OF

E-

FENSE

.�Whenever lack of mental responsibility of the

accused with respect to an offense is properly at issue,

the military judge shall instruct the members of the

commission as to the defense of lack of mental responsi-

bility under this section and shall charge them to find the

accused�

�(1) guilty;

�(2) not guilty; or

�(3) not guilty only by reason of lack of

mental responsibility.

�(d) M

AJORITY

OTE

EQUIRED FOR

INDING

.�

The accused shall be found not guilty only by reason of

lack of mental responsibility under subsection (c)(3) only

if a majority of the members of the commission at the

time the vote is taken determines that the defense of lack

of mental responsibility has been established.

�� 949l. Voting and rulings

�(a) V

OTE BY

ECRET

RITTEN

ALLOT

.�Voting

by members of a military commission on the findings and

on the sentence shall be by secret written ballot.

Page 43

�(b) R

ULINGS

.�(1) The military judge shall rule

upon all questions of law, including the admissibility of

evidence, and all interlocutory questions arising during

the proceedings.

�(2) Any such ruling made by the military judge

upon any question of law or any interlocutory question

other than the factual issue of mental responsibility of the

accused is conclusive and constitutes the ruling of the

commission. However, the military judge may change

his ruling at any time during the trial.

�(c) I

NSTRUCTIONS

RIOR TO

OTE

.�Before a vote

is taken of the findings, the military judge shall, in the

presence of the accused and counsel, instruct the mem-

bers of the commission as to the elements of the offense

and charge them�

�(1) that the accused must be presumed to be

innocent until his guilt is established by legal and

competent evidence beyond reasonable doubt;

�(2) that in the case being considered, if

there is a reasonable doubt as to the guilt of the ac-

cused, 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

Page 44

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.

�� 949m. Number of votes required

�(a) C

ONVICTION

.�No person may be convicted of

any offense, except as provided in section 949i(b) of this

title or by concurrence of two-thirds of the members pre-

sent at the time the vote is taken.

�(b) S

ENTENCES

.�(1) Except as provided in para-

graphs (2) and (3), sentences shall be determined by a

military commission by the concurrence of two-thirds of

the members present at the time the vote is taken.

�(2) No person may be sentenced to suffer death,

except insofar as�

�(A) death has been expressly authorized

under this Act for an offense of which the accused

has been found guilty;

�(B) the charges referred to the commission

expressly sought the penalty of death;

�(C) the accused was convicted of the of-

fense by the concurrence of all the members of the

military commission present at the time the vote is

taken; and

Page 45

�(D) all members of the military commis-

sion present at the time the vote was taken con-

curred in the sentence of death.

�(3) No person may be sentenced to life imprison-

ment or to confinement for more than 10 years, except by

the concurrence of three-fourths of the members at the

time the vote is taken.

�(c) N

UMBER OF

EMBERS

EQUIRED FOR

EN-

ALTY OF

EATH

.�(1) Except as provided in paragraph

(2), in a case in which the penalty of death is sought, the

number of members shall be not less than 12.

�(2) In any case described in paragraph (1) in

which 12 members are not reasonably available because

of physical conditions or military exigencies, the conven-

ing authority shall specify a lesser number of members

for the military commission (but not fewer than 5 mem-

bers), 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 au-

thority shall make a detailed written statement, to be ap-

pended to the record, stating why a greater number of

members were not reasonably available.

�� 949n. Military commission to announce action

�A military commission shall announce its find-

ings and sentence to the parties as soon as determined.

Page 46

�� 949o. Record of trial

�(a) R

ECORD

; A

UTHENTICATION

.�Each military

commission shall keep a separate, substantially verbatim,

record of the proceedings in each case brought before it,

and the record shall be authenticated by the signature of

the military judge. If the record cannot be authenticated

by the military judge by reason of his death, disability, or

absence, it shall be authenticated by the signature of the

trial counsel or by that of a member of the commission if

the trial counsel is unable to authenticate it by reason of

his death, disability, or absence. Where appropriate, and

as provided by regulation, the record of the military

commission may contain a classified annex.

�(b) C

OMPLETE

ECORD

EQUIRED

.�A complete

record of the proceedings and testimony shall be pre-

pared in every military commission established under this

chapter.

�(c) P

ROVISION OF

OPY TO

CCUSED

.�A copy of

the record of the proceedings of each military commis-

sion shall be given to the accused as soon as it is authen-

ticated. Where the record contains classified informa-

tion, or a classified annex, the accused shall receive a re-

dacted version of the record. The appropriate defense

counsel shall have access to the unredacted record, as

provided by regulation.

Page 47

�SUBCHAPTER V�SENTENCES

�Sec.

�949s. Cruel or unusual punishments prohibited.

�949t. Maximum limits.

�949u. Execution of confinement.

�� 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 commis-

sion or inflicted upon any person subject to this chapter.

The use of irons, single or double, except for the purpose

of safe custody, is prohibited.

�� 949t. Maximum limits

�The punishment which a military commission

may direct for an offense may not exceed such limits as

the President or Secretary may prescribe for that offense.

�� 949u. Execution of confinement

�(a) I

ENERAL

.�Under such regulations as the

Secretary may prescribe, a sentence of confinement ad-

judged by a military commission may be carried into exe-

cution 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.

Page 48

�(b) T

REATMENT

URING

ONFINEMENT BY

THER

THAN THE

RMED

ORCES

.�Persons confined under sub-

section (a)(2) in a penal or correctional institution not

under the control of one of the armed forces are subject

to the same discipline and treatment as persons confined

or committed by the courts of the United States or of the

State, Territory, District of Columbia, or place in which

the institution is situated.

�SUBCHAPTER VI�POST-TRIAL PROCEDURE

AND REVIEW OF MILITARY COMMISSIONS

�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 of the United

States.

�950h. Appellate counsel.

�950i. Execution of sentence; suspension of sentence.

�950j. Finality or proceedings, findings, and sentences.

�� 950a. Error of law; lesser included offense

�(a) E

RROR OF

.�A finding or sentence of a

military commission may not be held incorrect on the

ground of an error of law unless the error materially

prejudices the substantial rights of the accused.

�(b) L

ESSER

NCLUDED

FFENSE

.�Any reviewing

authority with the power to approve or affirm a finding of

guilty may approve or affirm, instead, so much of the

finding as includes a lesser included offense.

Page 49

�� 950b. Review by the convening authority

�(a) N

OTICE TO

ONVENING

UTHORITY OF

IND-

INGS AND

ENTENCE

.�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) S

UBMITTAL OF

ATTERS BY

CCUSED TO

ONVENING

UTHORITY

.�(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 chap-

ter.

�(2)(A) Except as provided in subparagraph (B), a

submittal under paragraph (1) shall be made in writing

within 20 days after the accused has been given an au-

thenticated 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 para-

graph (1), the convening authority, for good cause, may

extend the applicable period under subparagraph (A) for

not more than an additional 20 days.

�(3) The accused may waive his right to make a

submission to the convening authority under paragraph

(1). Such a waiver must be made in writing and may not

Page 50

be revoked. For the purposes of subsection (c)(2), the

time within which the accused may make a submission

under this subsection shall be deemed to have expired

upon the submission of such a waiver to the convening

authority.

�(c) A

CTION BY THE

ONVENING

UTHORITY

.�(1)

The authority under this section to modify the findings

and sentence of a military commission under this chapter

is a matter of the sole discretion and prerogative of the

convening authority.

�(3)(A) Action on the sentence of a military com-

mission shall be taken by the convening authority.

�(B) Subject to regulations of the Secretary, such

action may be taken only after consideration of any mat-

ters submitted by the accused under subsection (b) or af-

ter the time for submitting such matters expires, which-

ever is earlier.

�(C) In taking action under this paragraph, the

convening authority, in his sole discretion, may approve,

disapprove, commute, or suspend the sentence in whole

or in part. The convening authority may not increase the

sentence beyond that which is found by the commission.

�(3) Action on the findings of a military commis-

sion by the convening authority is not required. How-

Page 51

ever, the convening authority, in his sole discretion,

may�

�(A) dismiss any charge or specification by

setting aside a finding of guilty thereto; or

�(B) change a finding of guilty to a charge

to a finding of guilty to an offense that is a lesser

included offense of the offense stated in the

charge.

�(4) The convening authority shall serve on the ac-

cused or on defense counsel notice of any action taken by

the convening authority under this subsection.

�(d) O

RDER OF

EVISION OR

EHEARING

.�(1) Sub-

ject to paragraphs (2) and (3), the convening authority, in

his sole discretion, may order a proceeding in revision or

a rehearing.

�(2)(A) Except as provided in subparagraph (B), a

proceeding in revision may be ordered if�

�(i) there is an apparent error or omission in

the record; or

�(ii) the record shows improper or inconsis-

tent action by a military commission with respect

to the findings or sentence that can be rectified

without material prejudice to the substantial rights

of the accused.

�(B) In no case may a proceeding in revision�

Page 52

�(i) reconsider a finding of not guilty of any

specification or a ruling which amounts to a find-

ing of not guilty;

�(ii) reconsider a finding of not guilty of any

charge, unless there has been a finding of guilty

under a specification laid under that charge, which

sufficiently alleges a violation;

�(iii) increase the severity of the sentence

unless the sentence prescribed for the offense is

mandatory.

�(3) A rehearing may be ordered by the convening

authority if he disapproves the findings and sentence and

states the reasons for disapproval of the findings. If such

a person disapproves the findings and sentence and does

not order a rehearing, he shall dismiss the charges. A re-

hearing as to the findings may not be ordered where there

is a lack of sufficient evidence in the record to support

the findings. A rehearing as to the sentence may be or-

dered if the convening authority disapproves the sen-

tence.

�� 950c. Waiver or withdrawal of appeal

�(a) W

AIVER OF

IGHT OF

EVIEW

.�(1) In each

case subject to appellate review under section 950f and

950g of this title, except a case in which the sentence as

approved under section 950b of this title includes death,

Page 53

the accused may file with the convening authority a

statement expressly waiving the right of the accused to

such review.

�(2) A waiver under paragraph (1) shall be signed

by both the accused and by a defense counsel.

�(3) A waiver under paragraph (1) must be filed, if

at all, within 10 days after notice on the action is served

on the accused under section 950b(c)(4) of this title. The

convening authority, for good cause, may extend the pe-

riod for such filing by not more than 30 days.

�(b) W

ITHDRAWAL OF

PPEAL

.�Except in a case

in which the sentence as approved under section 950b of

this title includes death, the accused may withdraw an

appeal at any time.

�(c) E

FFECT OF

AIVER OR

ITHDRAWAL

.�A

waiver of the right to appellate review or the withdrawal

of an appeal under this section bars review under section

950f or 950g of this title.

�� 950d. Appeal by the United States

�(a) I

NTERLOCUTORY APPEAL

.�(1) Except as pro-

vided in paragraph (2), in a trial by military commission

under this chapter, the United States may take an inter-

locutory appeal to the Court of Military Commission Re-

view of any order or ruling of the military judge that�

Page 54

�(A) terminates commission proceedings

with respect to a charge or specification;

�(B) excludes evidence that is substantial

proof of a fact material in the proceeding; or

�(C) relates to a matter under subsection (d),

(e), or (f) of section 949d of this title.

�(2) The United States may not appeal under para-

graph (1) an order or ruling that is, or amounts to, a find-

ing of not guilty by the commission with respect to the

charge or specification.

�(b) N

OTICE OF

PPEAL

.�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) A

PPEAL

.�An appeal under this section shall

be forwarded by means prescribed under regulations of

the Secretary directly to the Court of Military Commis-

sion 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) C

OURT OF

PPEALS

.�The United States may

appeal an adverse ruling under subsection (c) to the

United States Court of Appeals for the District of Co-

lumbia Circuit by filing a petition for review in the Court

of Appeals within 10 days after the date of such ruling.

Page 55

Review under this subsection shall be at the discretion of

the Court of Appeals.

�� 950e. Rehearings

�(a) C

OMPOSITION OF

ILITARY

OMMISSION FOR

EHEARING

.�Each rehearing under this chapter shall

take place before a military commission composed of

members not members of the commission which first

heard the case.

�(b) S

COPE OF

EHEARING

.�(1) Upon a rehear-

ing�

�(A) the accused may not be tried for any

offense of which he was found not guilty by the

first commission; and

�(B) no sentence in excess of or more than

the original sentence may be imposed unless�

�(i) the sentence is based upon a find-

ing of guilty of an offense not considered

upon the merits in the original proceedings;

�(ii) unless the sentence prescribed for

the offense is mandatory.

�(2) Upon a rehearing, if the sentence approved af-

ter the first commission was in accordance with a pretrial

agreement and the accused at the rehearing changes his

plea with respect to the charges or specifications upon

Page 56

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 pun-

ishment not in excess of that lawfully adjudged at the

first commission.

�� 950f. Review by Court of Military Commission Re-

view

�(a) C

OURT

STABLISHED

.�(1) The Secretary

shall establish a Court of Military Commission Review

which shall be composed of one or more panels, and each

such panel shall be composed of not less than three ap-

pellate military judges.

�(2) For the purpose of reviewing military com-

mission decisions, the court may sit in panels or as a

whole in accordance with rules prescribed by the Secre-

tary.

�(b) C

OMPOSITION OF THE

OURT

.�(1) The Secre-

tary shall assign appellate military judges to a Court of

Military Commission Review.

�(2) Each appellate military judge shall meet the

qualifications for military judges prescribed by section

948j(b) of this Act or shall be a civilian with comparable

qualifications.

Page 57

�(3) No person may be appointed to serve as an

appellate military judge in any case in which that person

acted as a military judge, counsel, or reviewing official.

�(c) R

IGHT OF

PPEAL

.�The accused may appeal

from the final decision of a military commission, and the

United States may appeal as provided in section 950d of

this title, to the Court of Military Commission Review in

accordance with procedures prescribed under regulations

of the Secretary.

�(d) S

COPE OF

EVIEW

.�In ruling on an appeal

under this section, the Court of Military Commission Re-

view may act only with respect to matters of law.

�� 950g. Review by the United States Court of Ap-

peals for the District of Columbia Circuit

and the Supreme Court of the United

States

�(a) I

ENERAL

.�(1)(A) Except as provided in

subparagraph (B), the United States Court of Appeals for

the District of Columbia Circuit shall have exclusive ju-

risdiction to determine the validity of a final judgment

rendered by a military commission, pursuant to Section

1005(e)(3) of the Detainee Treatment Act of 2005.

�(B) The Court of Appeals shall not review the fi-

nal judgment until all other appeals under this chapter

have been waived or exhausted.

Page 58

�(2) A petition for review must be filed by the ac-

cused in the Court of Appeals by no longer than 20 days

from the earlier of when�

�(A) written notice of the final decision of

the Court of Military Commission Review is

served on the accused or on defense counsel; or

�(B) the accused submits, in the form pre-

scribed by section 950c of this title, a written no-

tice waiving his right to appeal under section 950f

of this title.

�(b) R

EVIEW BY

UPREME

OURT

.�The Supreme

Court of the United States may review by writ of certio-

rari the final judgment of the Court of Appeals pursuant

to section 1257 of title 28, United States Code.

�� 950h. Appellate counsel

�(a) A

PPOINTMENT

.�The Secretary shall, by regu-

lation, establish procedures for the appointment of appel-

late counsel for the United States and for the accused in

military commissions under this chapter. Appellate

counsel shall meet the qualifications for appearing before

military commissions under this chapter.

�(b) R

EPRESENTATION OF

NITED

TATES

.�

Appellate counsel may represent the United States in any

appeal or review proceeding under this chapter. Appel-

late Government counsel may represent the United States

Page 59

before the Supreme Court in cases arising under this

chapter when requested to do so by the Attorney General.

�(c) R

EPRESENTATION OF

CCUSED

.�The accused

shall be represented by appellate military counsel before

the Court of Military Commission Review, the United

State Court of Appeals for the District of Columbia Cir-

cuit, or the Supreme Court, or by civilian counsel if re-

tained by him.

�� 950i. Execution of sentence; suspension of sentence

�(a) E

XECUTION OF

ENTENCE OF

EATH

NLY

PON

PPROVAL BY THE

RESIDENT

.�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) E

XECUTION OF

ENTENCE OF

EATH

NLY

PON

INAL

UDGMENT OF

EGALITY OF

ROCEEDINGS

.�

(1) If the sentence of a military commission under this

chapter extends to death, the sentence may not be exe-

cuted until there is a final judgment as to the legality of

the proceedings (and with respect to death, approval un-

der subsection (a)).

�(2) A judgment as to legality of the proceedings is

final for purposes of paragraph (1) when�

Page 60

�(A) review is completed by the Court of

Military Commission Review and�

�(i) the time for the accused to file a

petition for review by the Court of Appeals

for the D.C. Circuit has expired; and

�(ii) the accused has not filed a timely

petition for such review; and

�(iii) the case is not otherwise under

review by that Court; or

�(B) review is completed in accordance with

the judgment of the Court of Appeals for the D.C.

Circuit and�

�(i) a petition for a writ of certiorari is

not timely filed;

�(ii) such a petition is denied by the

Supreme Court; or

�(iii) review is otherwise completed in

accordance with the judgment of the Su-

preme Court.

�(c) S

USPENSION OF

ENTENCE

.�The Secretary, or

the convening authority acting on the case (if other than

the Secretary), may suspend the execution of any sen-

tence or part thereof in the case, except a sentence of

death.

Page 61

�� 950j. Finality of proceedings, findings, and sen-

tences

�(a) F

INALITY

.�The appellate review of records of

trial provided by this chapter, the proceedings, findings,

and sentences of military commissions as approved, re-

viewed, or affirmed as required by this chapter, are final

and conclusive. Orders publishing the proceedings of

military commissions are binding upon all departments,

courts, agencies, and officers of the United States, subject

only to the authority of the President.

�(b) P

ROVISIONS OF

HAPTER

OLE

ASIS FOR

E-

VIEW OF

ILITARY

OMMISSION

ROCEDURES AND

C-

TIONS

.�Except as otherwise provided in this chapter,

and notwithstanding any other law (including section

2241 of title 28, United States Code, or any other habeas

corpus provision), no court, justice, or judge shall have

jurisdiction to hear or consider any claim or cause of ac-

tion whatsoever, including any action pending on or filed

after the date of enactment of this chapter, relating to the

prosecution, trial, or judgment of a military commission

convened under this section, including challenges to the

lawfulness of the procedures of military commissions

under this chapter.

�SUBCHAPTER VII�PUNITIVE MATTERS

�Sec.

�950p. Substantive offenses.

�950q. Principals.

Page 62

�950r. Accessory after the fact.

�950s. Conviction of lesser offenses.

�950t. Attempts.

�950u. Solicitation.

�950v. Crimes triable by military commission.

�950w. Perjury and obstruction of justice.

�950x. Contempt.

�� 950p. Substantive offenses generally

�(a) P

URPOSE

.�The following provisions codify

offenses that have traditionally been triable by military

commissions. This Act does not establish new crimes

that did not exist before its establishment, but rather codi-

fies those crimes for trial by military commission.

�(b) E

FFECT

.�Because these provisions are de-

clarative of existing law, they do not preclude trial for

crimes that occurred prior to their effective date.

�� 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; or

�(2) causes an act to be done which if di-

rectly performed by him would be punishable by

this chapter; or

�(3) is a superior commander who, with re-

gard 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

Page 63

done so and the superior failed to take the neces-

sary and reasonable measures to prevent such acts

or to punish the perpetrators thereof.

�� 950r. Accessory after the fact

�Any person subject to this chapter who, knowing

that an offense punishable by this chapter has been com-

mitted, receives, comforts, or assists the offender in order

to hinder or prevent his apprehension, trial, or punish-

ment shall be punished as a military commission may di-

rect.

�� 950s. Conviction of lesser offenses

�An accused may be found guilty of an offense

necessarily included in the offense charged or of an at-

tempt to commit either the offense charged or an offense

necessarily included therein.

�� 950t. Attempts

�(a) I

ENERAL

.�Any person subject to this

chapter who attempts to commit any offense punishable

by this Act shall be punished as a military commission

may direct.

�(b) S

COPE OF

FFENSE

.�An act, done with spe-

cific 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 at-

tempt to commit that offense.

Page 64

�(c) E

FFECT OF

ONSUMMATION

.�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.

�� 950u. Solicitation

�Any person subject to this chapter who solicits or

advises another or others to commit one or more substan-

tive offenses triable by military commission shall, if the

offense solicited or advised is attempted or committed, be

punished with the punishment provided for the commis-

sion of the offense, but, if the offense solicited or advised

is not committed or attempted, he shall be punished as a

military commission may direct.

�� 950v. Crimes triable by military commission

�(a) D

EFINITIONS AND

ONSTRUCTION

.�(1) For

purposes of this chapter, the term �military objective� re-

fers to combatants and those objects during an armed

conflict which, by their nature, location, purpose, or use,

effectively contribute to the opposing force�s war-

fighting or war-sustaining capability and whose total or

partial destruction, capture, or neutralization would con-

stitute a definite military advantage to the attacker under

the circumstances at the time of the attack.

�(2) For purposes of this section only, �protected

person� refers to any person entitled to protection under

Page 65

one or more of the Geneva Conventions, including civil-

ians not taking an active part in hostilities, military per-

sonnel placed hors de combat by sickness, wounds, or

detention, and military medical or religious personnel.

�(3) For purposes of this chapter, the term �pro-

tected property� refers to property specifically protected

by the law of war such as buildings dedicated to religion,

education, art, science or charitable purposes, historic

monuments, hospitals, or places where the sick and

wounded are collected, provided they are not being used

for military purposes or are not otherwise military objec-

tives. Such property would include objects properly

identified by one of the distinctive emblems of the Ge-

neva Conventions but does not include all civilian prop-

erty.

�(4) The intent required for offenses (1), (2), (3),

(4) and (12) under subsection (b) precludes their applica-

bility with regard to collateral damage or to death, dam-

age, or injury incident to a lawful attack.

�(b) O

FFENSES

.�The following enumerated of-

fenses, when committed in the context of and associated

with armed conflict, shall be triable by military commis-

sion under this chapter at any time without limitation�

�(1) M

URDER OF

ROTECTED

ERSONS

.�

Any person who intentionally kills one or more

Page 66

protected persons is guilty of the offense of inten-

tionally killing protected persons and shall be sub-

ject to whatever punishment the commission may

direct, including the penalty of death.

�(2) A

TTACKING

IVILIANS

.�Any person

who intentionally engages in an attack upon a ci-

vilian population as such or individual civilians not

taking active part in hostilities is guilty of the of-

fense of attacking civilians and shall be subject to

whatever punishment the commission may direct,

including, if death results to one or more of the

victims, the penalty of death.

�(3) A

TTACKING

IVILIAN

BJECTS

.�Any

person who intentionally engages in an attack upon

civilian objects (property that is not a military ob-

jective) shall be guilty of the offense of attacking

civilian objects and shall be subject to whatever

punishment the commission may direct.

�(4) A

TTACKING

ROTECTED

ROPERTY

.�

Any person who intentionally engages in an attack

upon protected property shall be guilty of the of-

fense of attacking protected property and shall be

subject to whatever punishment the commission

may direct.

Page 67

�(5) P

ILLAGING

.�Any person who inten-

tionally and in the absence of military necessity

appropriates or seizes property for private or per-

sonal use, without the consent of a person with au-

thority to permit such appropriation or seizure,

shall be guilty of the offense of pillaging and shall

be subject to whatever punishment the commission

may direct.

�(6) D

ENYING

UARTER

.�Any person who,

with effective command or control over subordi-

nate groups, declares, orders, or otherwise indi-

cates to those forces that there shall be no survi-

vors or surrender accepted, with the intent there-

fore to threaten an adversary or to conduct hostili-

ties such that there would be no survivors or sur-

render accepted, shall be guilty of denying quarter

and shall be subject to whatever punishment the

commission may direct.

�(7) T

AKING

OSTAGES

.�Any person who,

having knowingly seized or detained one or more

persons, threatens to kill, injure, or continue to de-

tain such person or persons with the intent of com-

pelling 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

Page 68

release of such person or persons, shall be guilty of

the offense of taking hostages and shall be subject

to whatever punishment the commission may di-

rect, including, if death results to one or more of

the victims, the penalty of death.

�(8) E

MPLOYING

OISON OR

NALOGOUS

EAPONS

.�Any person who intentionally, as a

method of warfare, employs a substance or a

weapon that releases a substance that causes death

or serious and lasting damage to health in the ordi-

nary course of events, through its asphyxiating,

bacteriological, or toxic properties, shall be guilty

of employing poison or analogous weapons and

shall be subject to whatever punishment the com-

mission may direct, including, if death results to

one or more of the victims, the penalty of death.

�(9) U

SING

ROTECTED

ERSONS

HIELDS

.�Any person who positions, or otherwise

takes advantage of, a protected person with the in-

tent 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 pun-

ishment the commission may direct, including, if

Page 69

death results to one or more of the victims, the

penalty of death.

�(10) U

SING

ROTECTED

ROPERTY

HIELDS

.�Any person who positions, or otherwise

takes advantage of the location of, protected prop-

erty under the law of war with the intent to shield a

military objective from attack or to shield, favor,

or impede military operations, shall be guilty of

the offense of using protected property as shields

and shall be subject to whatever punishment the

commission may direct.

�(11) T

ORTURE

.�Any person who commits

an act specifically intended to inflict severe physi-

cal or mental pain or suffering (other than pain or

suffering incidental to lawful sanctions) upon an-

other person within his custody or physical control

for the purpose of obtaining information or a con-

fession, punishment, intimidation, coercion, or any

reason based on discrimination of any kind, shall

be guilty of torture and subject to whatever pun-

ishment the commission may direct, including, if

death results to one or more of the victims, the

penalty of death. �Severe mental pain or suffering�

has the meaning provided in 18 U.S.C. � 2340(2).

Page 70

�(12) C

RUEL OR

NHUMAN

REATMENT

.�

Any person who commits an act intended to inflict

severe physical or mental pain or suffering (other

than pain or suffering incidental to lawful sanc-

tions), including severe physical abuse, upon an-

other person within his custody or physical control

shall be guilty of cruel or inhuman treatment and

subject to whatever punishment the commission

may direct, including, if death results to one or

more of the victims, the penalty of death. �Severe

mental pain or suffering� has the meaning provided

in 18 U.S.C. � 2340(2).

�(13) I

NTENTIONALLY

AUSING

ERIOUS

ODILY

NJURY

.�Any person who intentionally

causes serious bodily injury to one or more per-

sons, including lawful combatants, in violation of

the law of war shall be guilty of the offense of

causing serious bodily injury and shall be subject

to whatever punishment the commission may di-

rect, including, if death results to one or more of

the victims, the penalty of death. �Serious bodily

injury� has the meaning provided in 18 U.S.C. �

113(b)(2).

�(14) M

UTILATING OR

AIMING

.�Any per-

son who intentionally injures one or more pro-

Page 71

tected persons, by disfiguring the person or per-

sons 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 punish-

ment the commission may direct, including, if

death results to one or more of the victims, the

penalty of death.

�(15) M

URDER

IOLATION OF THE

AW OF

.�Any person who intentionally kills one or

more persons, including lawful combatants, in vio-

lation of the law of war shall be guilty of the of-

fense of murder in violation of the law of war and

shall be subject to whatever punishment the com-

mission may direct, including the penalty of death.

�(16) D

ESTRUCTION OF

ROPERTY IN

IOLA-

TION OF THE

AW OF

.�Any person who in-

tentionally destroys property belonging to another

person in violation of the law of war shall be guilty

of the offense of destruction of property in viola-

tion of the law of war and shall be subject to what-

ever punishment the commission may direct.

�(17) U

SING

REACHERY OR

ERFIDY

.�Any

person who, after inviting the confidence or belief

Page 72

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 punish-

ment the commission may direct.

�(18) I

MPROPERLY

SING A

LAG OF

RUCE

.�Any person who uses a flag of truce to

feign an intention to negotiate, surrender, or oth-

erwise 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 punish-

ment the commission may direct.

�(19) I

MPROPERLY

SING A

ISTINCTIVE

MBLEM

.�Any person 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 what-

ever punishment the commission may direct.

�(20) I

NTENTIONALLY

ISTREATING A

EAD

ODY

.�Any person who intentionally mistreats

the body of a dead person, without justification by

legitimate military necessary, shall be guilty of the

Page 73

offense of mistreating a dead body and shall be

subject to whatever punishment the commission

may direct.

�(21) R

APE

.�Any person who forcibly or

with coercion or threat of force wrongfully invades

the body of a person by penetrating, however

slightly, the anal or genital opening of the victim

with any part of the body of the accused or with

any foreign object shall be guilty of the offense of

rape and shall be subject to whatever punishment

the commission may direct.

�(22) H

IJACKING OR

AZARDING A

ESSEL

IRCRAFT

.�Any person subject to this chapter

who intentionally seizes, exercises unauthorized

control over, or endangers the safe navigation of, a

vessel or aircraft that was not a legitimate military

target is guilty of the offense of hijacking or haz-

arding a vessel or aircraft and shall be subject to

whatever punishment the commission may direct,

including, if death results to one or more of the

victims, the penalty of death.

�(23) T

ERRORISM

.�Any person subject to

this chapter who intentionally kills or inflicts great

bodily harm on one or more persons, or intention-

ally engages in an act that evinces a wanton disre-

Page 74

gard for human life, in a manner calculated to in-

fluence or affect the conduct of government or ci-

vilian population by intimidation or coercion, or to

retaliate against government conduct, shall be

guilty of the offense of terrorism and shall be sub-

ject to whatever punishment the commission may

direct, including, if death results to one or more of

the victims, the penalty of death.

�(24) P

ROVIDING

ATERIAL

UPPORT FOR

ERRORISM

.�Any person who provides material

support or resources, knowing or intending that

they are to be used in preparation for, or in carry-

ing out, an act of terrorism (as defined in subsec-

tion (b)(23) of this section), or who intentionally

provides material support or resources to an inter-

national terrorist organization engaged in hostili-

ties against the United States, knowing that such

organization has engaged or engages in terrorism

(as defined in subsection (b)(23) of this section),

shall be guilty of the offense of providing material

support for terrorism and shall be subject to what-

ever punishment the commission may direct. The

term �material support or resources� has the mean-

ing provided in 18 U.S.C. � 2339A(b).

Page 75

�(25) W

RONGFULLY

IDING THE

NEMY

.�

Any person who, in breach of an allegiance or duty

to the United States, knowingly and intentionally

aids an enemy of the United States or one its co-

belligerents shall be guilty of the offense of wrong-

fully aiding the enemy and shall be subject to

whatever punishment the commission may direct.

�(26) S

PYING

.�Any person who, with intent

or reason to believe that it is to be used to the in-

jury of the United States or to the advantage of a

foreign power, collects or attempts to collect cer-

tain information by clandestine means or while

acting under false pretenses, for the purpose of

conveying such information to an enemy of the

United States or one of its co-belligerents, shall be

guilty of the offense of spying and shall be subject

to whatever punishment the commission may di-

rect, including the penalty of death.

�(27) C

ONSPIRACY

.�Any person who con-

spires to commit one or more substantive offenses

triable under this section, and who knowingly does

any overt act to effect the object of the conspiracy,

shall be guilty of conspiracy and shall be subject to

whatever punishment the commission may direct,

Page 76

including, if death results to one or more of the

victims, the penalty of death.

�� 950w. Perjury and obstruction of justice

�The military commissions also may try offenses

and impose punishments for perjury, false testimony, or

obstruction of justice related to military commissions.

�� 950x. Contempt

�A military commission may punish for contempt

any person who uses any menacing word, sign, or gesture

in its presence, or who disturbs its proceedings by any

riot or disorder.�.

(2) T

ABLES OF

HAPTERS

MENDMENTS

.�

The tables of chapters at the beginning of subtitle

A and part II of subtitle A of title 10, United States

Code, are each amended by inserting after the item

relating to chapter 47 the following new item:

�CHAPTER 47A�MILITARY COMMISIONS

�SUBCHAPTER I�GENERAL PROVISIONS

�SUBCHAPTER II�COMPOSITION OF COURTS-

MARTIAL

�SUBCHAPTER III�PRE-TRIAL PROCEDURE

�SUBCHAPTER IV�TRIAL PROCEDURE

�SUBCHAPTER V�SENTENCES

�SUBCHAPTER VI�POST-TRIAL PROCEDURE

AND REVIEW OF MILITARY COMMIS-

SIONS

�SUBCHAPTER VII�PUNITIVE MATTERS

(b) S

UBMITTAL OF

ROCEDURES TO

ONGRESS

.�

(1) S

UBMITTAL OF

ROCEDURES

.�Not later

than 90 days after the date of the enactment of this

Page 77

Act, the Secretary shall submit to the Committees

on Armed Forces of the Senate and the House of

Representatives a report setting forth the proce-

dures for military commissions prescribed under

Chapter 47A of title 10, United States Code (as

added by subsection (a)).

(2) S

UBMITTAL OF

ODIFICATIONS

.�Not

later than 60 days before the date on which any

proposed modification of the procedures described

in paragraph (1) shall go into effect, the Secretary

shall submit to the committees of Congress re-

ferred to in that paragraph a report describing such

modifications.

SEC. 5. JUDICIAL REVIEW.

Section 2241 of title 28, United States Code, is

amended by replacing subsection (e) with the following:

�(e) Except as provided for in this subsection, and

notwithstanding any other law, no court, justice, or judge

shall have jurisdiction to hear or consider any claim or

cause of action, including an application for a writ of ha-

beas corpus, pending on or filed after the date of enact-

ment of this Act, against the United States or its agents,

brought by or on behalf of any alien detained by the

United States as an unlawful enemy combatant, relating

Page 78

to any aspect of the alien�s detention, transfer, treatment,

or conditions of confinement:

�(1) C

OMBATANT

TATUS

EVIEW

RIBU-

NALS

.�The United States Court of Appeals for the

District of Columbia Circuit shall have exclusive

jurisdiction to determine the validity of any final

decision of a Combatant Status Review Tribunal.

The scope of such review is defined in section

1005(e)(2) of the Detainee Treatment Act of 2005.

If the Court grants a detainee�s petition for review,

the Department of Defense may conduct a new

Combatant Status Review Tribunal.

�(2) M

ILITARY

OMMISSIONS

.�Review

shall be had only of final judgments of military

commissions as provided for pursuant to section

247 of the Military Commissions Act of 2006.

�(3) I

NFORMATION CONSIDERED

.�The court

may consider classified information submitted in

camera and ex parte in making any determination

under this section.�.

SEC. 6. SATISFACTION OF TREATY OBLIGATIONS.

(a) I

ENERAL

.�Satisfaction of the prohibitions

against cruel, inhuman, and degrading treatment set forth

in Section 1003 of the Detainee Treatment Act of 2005

(title X of Public Law 109-148; 119 Stat. 2739; 42

Page 79

U.S.C. 2000dd) shall fully satisfy United States obliga-

tions 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 ob-

ligations imposed by subsections 1(b) and 1(d) of such

Article.

(b) R

IGHTS

UDICIALLY

NFORCEABLE

.�

(1) I

ENERAL

.�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 pur-

pose in any court of the United States or its States

or territories.

(2) C

ONSTRUCTION

.�Paragraph (1) may not

be construed to affect the obligations of the United

States under the Geneva Conventions.

ENEVA

ONVENTIONS

EFINED

.�In this sec-

tion, the term �Geneva Conventions� means the interna-

tional conventions signed at Geneva on August 12, 1949,

including common Article 3.

SEC. 7. WAR CRIMES ACT AMENDMENT.

Section 2441 of title 18, United States Code is

amended by replacing subsection (c)(3) with the follow-

ing:

Page 80

�(3) which constitutes any of the following serious

violations of common Article 3 of the international con-

ventions signed at Geneva 12 August 1949, when com-

mitted in the context of and in association with an armed

conflict not of an international character�

�(1) T

ORTURE

.�Any person who commits,

or conspires or attempts to commit, an act specifi-

cally intended to inflict severe physical or mental

pain or suffering (other than pain or suffering inci-

dental to lawful sanctions) upon another person

within his custody or physical control for the pur-

pose of obtaining information or a confession, pun-

ishment, intimidation, coercion, or any reason

based on discrimination of any kind, shall be guilty

of a violation of this subsection. �Severe mental

pain or suffering� has the meaning provided in 18

U.S.C. � 2340(2).

�(2) C

RUEL OR

NHUMAN

REATMENT

.�Any

person who commits, or conspires or attempts to

commit, an act intended to inflict severe physical

or mental pain or suffering (other than pain or suf-

fering incidental to lawful sanctions), including

severe physical abuse, upon another person within

his custody or physical control shall be guilty of a

violation of this subsection. �Severe mental pain

Page 81

or suffering� has the meaning provided in 18

U.S.C. � 2340(2).

�(3) P

ERFORMING

IOLOGICAL

XPERI-

MENTS

.�Any person who subjects, or conspires or

attempts to subject, one or more persons within his

custody or physical control to biological experi-

ments without a legitimate medical purpose and in

so doing endangers the body or health of such per-

son or persons shall be guilty of a violation of this

subsection.

�(4) M

URDER

.�Any person who intention-

ally 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, shall be guilty of a violation of this

subsection. The intent required for this offense

precludes its applicability with regard to collateral

damage or to death, damage, or injury incident to a

lawful attack.

�(5) M

UTILATION OR

AIMING

.�Any per-

son who intentionally injures, or conspires or at-

tempts to injure, or injures whether intentionally or

Page 82

unintentionally in the course of committing any

other offense under this section, one or more per-

sons taking no active part in the hostilities, includ-

ing those placed hors de combat by sickness,

wounds, detention, or any other cause, by disfigur-

ing 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 a violation of

this subsection. The intent required for this of-

fense precludes its applicability with regard to col-

lateral damage or to death, damage, or injury inci-

dent to a lawful attack.

�(6) I

NTENTIONALLY

AUSING

REAT

UF-

FERING OR

ERIOUS

NJURY

.�Any person who in-

tentionally causes, or conspires or attempts to

cause, serious bodily injury 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, shall be guilty of a

violation of this subsection. The intent required

for this offense precludes its applicability with re-

gard to collateral damage or to death, damage, or

injury incident to a lawful attack. �Serious bodily

Page 83

injury� has the meaning provided in 18 U.S.C.

� 113(b)(2).

�(7) R

APE

.�Any person who forcibly or

with coercion or threat of force wrongfully in-

vades, 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 ob-

ject shall be guilty of a violation of this subsection.

�(8) S

EXUAL

SSAULT OR

BUSE

.�Any

person who forcibly or with coercion or threat of

force engages, or conspires or attempts to engage,

in sexual contact with one or more persons, or

causes, or conspires or attempts to cause, one or

more persons to engage in sexual contact, shall be

guilty of a violation of this subsection. For pur-

poses of this offense, �sexual contact� has the

meaning provided in 18 U.S.C. � 2246(3).

�(9) T

AKING

OSTAGES

.�Any person who,

having knowingly seized or detained one or more

persons, threatens to kill, injure, or continue to de-

tain such person or persons with the intent of com-

pelling 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

Page 84

release of such person or persons, shall be guilty of

a violation of this subsection. Any person who at-

tempts to engage or conspires to engage in this of-

fense shall also be guilty under this subsection.�.

SEC. 8. CONFORMING AMENDMENTS.

(a) Section 1004(b) of the Detainee Treatment Act

of 2005 (10 U.S.C. � 801 note) is amended to conform

with this Act as follows�

(1) by replacing �may provide� with �shall

provide�; and

(2) by adding �or investigation� after

�criminal prosecution�; and

(3) by adding �whether before United States

courts or agencies, foreign courts or agencies, or

international courts or agencies,� after �described

in that subsection�;

(b) Section 1005 of the Detainee Treatment Act of

2005 (10 U.S.C. � 801 note) is amended to conform with

this Act as follows�

(1) by striking subsection (e)(3)(B) and re-

numbering subsections (e)(3)(C) and (e)(3)(D) as

subsections (e)(3)(B) and (e)(3)(C), respectively;

and

(2) in subsection (e)(3)(A), by striking �pur-

suant to Military Commission Order No. 1, August

Page 85

31, 2005 (or any successor military order)� and in-

serting �by a military commission under chapter

47a of title 10�; and

(3) in former subsection (e)(3)(C)(i), by

striking �pursuant to the military order� and insert-

ing �by a military commission�; and

(4) in former subsection (e)(3)(C)(ii), by

striking �pursuant to such military order� and in-

serting �by such a military commission�; and

(5) in former subsection (e)(3)(D)(i) by

striking �specified in the military order� and in-

serting �specified for a military commission�; and

(6) and in former subsection (e)(3)(C)(i), by

striking �at Guantanamo Bay, Cuba�; and

(7) in former subsection (e)(2)(B)(i) by re-

placing �the Department of Defense at Guan-

tanamo Bay, Cuba� with �United States�.

amended to conform with this Act by adding, �(a)(13)

Lawful enemy combatants who violate the law of war.�

(d) Section 821 of title 10, United States Code, is

amended to conform with this Act by striking the phrase

�by statute or the law of war�.

(e) Section 836 of title 10, United States Code, is

amended to conform with this Act as follows�in subsec-

Page 86

tion (a), by replacing �military commissions and other

military tribunals� with �and other military tribunals (ex-

cluding military commissions)�.

SEC. 9. RETROACTIVE APPLICATION.

This Act shall take effect on the date of the enact-

ment of this Act and shall apply retroactively, including

to any aspect of the detention, treatment, or trial of any

person detained at any time since September 11, 2001,

and to any claim or cause of action pending on or after

the date of the enactment of this Act.

SEC. 10. SEVERABILITY.

If any provision of this Act, or the application of a

provision to any person or circumstance, is held to be un-

constitutional, the remainder of this Act, and the applica-

tion of the provisions to any other person or circum-

stance, shall not be affected thereby.