![](media/image1.jpeg){width="6.916666666666667in"
height="1.1159722222222221in"}

# Legislative Bulletin..........................................September 29, 2006

**Contents:**

**S. 3930**---Military Commissions Act

**S. 3930**---**Military Commissions Act---*as received***

**(Sen. McConnell, R-KY)**

**[Order of Business:]{.underline}** The bill is scheduled to be
considered on Friday, September 29, 2006, subject to a closed rule. On
September 27, 2006, the House passed H.R. 6166 (identical to S. 3930) by
a vote of [253 -- 168](http://clerk.house.gov/evs/2006/roll491.xml).

**[Background:]{.underline}** In June 2006, the Supreme Court's decision
in *Hamdan v. Rumsfeld* invalidated the military commissions that the
Bush Administration had established by executive order to try war
criminals detained at Guantanamo Bay. The court held that the
commissions did not comply with the Uniform Code of Military Justice
(UCMJ) nor the U.S.'s obligations under Article 3 of the Geneva
Convention. As a result, legislation must be enacted to provide suitable
constitutional footing for these military commissions and the ongoing
terrorist interrogation program.

Recently, the Administration agreed to a compromise with key Members of
the Senate Armed Services Committee (SASC) over various evidentiary
issues and the appropriate manner in which to clarify the U.S.'s
obligations to detainees under international law. S. 3930 is the
embodiment of that compromise.

**[Summary:]{.underline}** S. 3930 authorizes the President to establish
military commissions to try alien unlawful enemy combatants engaged in
hostilities against the U.S. for any offense committed before, on, or
after September 11, 2001. The bill states expressly that this authority
should not be construed to alter or limit the President's constitutional
authority to establish military commissions in areas under martial law
or in occupied territories as circumstances require.

An unlawful enemy combatant is defined as a person who is engaged in (or
materially supporting) hostilities against the U.S. and is *not* a
member of the regular forces of a State party engaged in hostilities
against the U.S, a member of a militia or organized resistance belonging
to a State party under a responsible command, wearing a fixed
distinctive sign, carrying arms openly, and abiding by the law of the
war, or a member of an armed force who profess allegiance to another
country engaged in hostilities. Any detainee that a Combatant Status
Review Tribunal had determined to be an unlawful enemy combatant (prior
to enactment) would also be covered. Lawful enemy combatants would
continue to be tried under normal courts-marshal proceedings.

Specifically, S. 3930 establishes the procedures and requirements for
these military commissions by amending the Uniform Code of Military
Justice. The bill clarifies that many of the procedures for trial by
general courts-martial do not apply to trials by military commissions
and are therefore not binding. Such military commissions are deemed to
be "regularly constituted, affording all the necessary judicial
guarantees which are recognized as indispensable by civilized peoples
court for purposes of Article 3 of the Geneva Convention," but alien
enemy unlawful combatants would not be able to invoke the Convention as
a source of rights during his trial.

[Composition of Military Commissions]{.underline}: A military
commission, typically consisting of five members, would be convened by
the Secretary of Defense or his designee, and made up of commissioned
officers on active duty. The members would be selected for their age,
education, training, and expertise and could not include either the
accuser or a witness for the prosecution. A military judge would preside
over each commission, as prescribed by regulations to be developed by
the Secretary, and military trial counsel (the prosecution) and defense
counsel would be detailed for service.

[Self-Incrimination and Coerced Statements]{.underline}: S. 3930
requires a detainee to be informed of the charges against him as soon as
it is practicable. No person would be required to testify against
himself at any commission proceeding, and *no statement obtained by
torture would be admissible*. A statement obtained *before* December 30,
2005, where coercion is alleged, could be admitted if the judge finds it
reliable, probative, and serving the "interest of justice." This was the
approach advocated by the Administration and the House Armed Services
Committee (HASC) for all allegedly coerced statements. Under H.R. 6166,
a statement made *after* December 30, 2005, where coercion is alleged,
must satisfy a higher test to be admissible---it must not have been
secured through interrogation methods that violate "the cruel, unusual,
or inhumane treatment or punishment prohibited by the Fifth, Eighth, and
14^th^ Amendments" to the U.S. Constitution (the standard enacted in the
Detainee Treatment Act, DTA). This was the approach outlined in the SASC
version for all allegedly coercive statements. December 30, 2005 is the
date that the President signed DTA into law. According to press reports,
the compromise---by hinging the more rigorous test off of enactment of
DTA---protects statements gathered from the interrogation of Khalid
Sheikh Mohammed and 13 other al Qaeda operatives that might otherwise be
inadmissible.

[Hearsay and Classified Evidence]{.underline}: S. 3930 ensures a
detainee a minimum of rights during a commission's proceedings,
including an opportunity: to examine and respond to all evidence that
impacts guilt, innocence, or sentencing; to be present at all commission
sessions (subject to exceptions); and to be assisted by counsel. Hearsay
evidence, not otherwise admitted in general courts-marshal, *would* be
admitted if it is demonstrated to be reliable and probative. A detainee
would be represented by military counsel and could retain civilian
counsel, who is a U.S. citizen and cleared for access to classified
information. If a detainee retains civilian counsel, the military
counsel would then serve as an associate counsel. S. 3930 permits the
judge to excuse the detainee (after a warning) from a proceeding to
ensure the physical safety of individuals in the court room and prevent
disruption in the proceedings.

Classified information would be privileged from disclosure if
detrimental to national security, and the judge would be authorized, to
the extent practicable, to delete any classified information in
evidentiary documents. In addition, the sources or methods used to
collect otherwise admissible evidence would also be protected if
classified and the evidence yielded is reliable (although an
unclassified summary may be required for presentation to the commission
and the defense). However, if classified information could not be
appropriately redacted, *the prosecutor may be forced to forego the use
of such evidence completely*. The Administration and the HASC supported
an alternative---allowing the evidence to be offered and presented to
the accused's counsel but not the accused himself. This approach,
favored by the SASC, could allow a future detainee to escape prosecution
because the prosecution would not have the benefit of necessary but
classified evidence.

[Defense, Convictions, and Sentencing]{.underline}: S. 3930 provides an
affirmative defense that a detainee lacked mental responsibility to
appreciate the nature and quality or the wrongfulness of his acts. The
detainee would carry the burden of proving this defense by clear and
convincing evidence, and a majority of the members of the commission
would determine whether the defense had been established.

Members of a military commission would vote using a secret written
ballot on the findings and the sentence with respect to a detainee, and
two-thirds of the members would need to concur to secure a conviction or
determine a sentence. A death sentence would require the members'
unanimity, while a sentence of life in prison (or confinement lasting
longer than ten years) would require the concurrence of three-fourths of
the members. Cruel or unusual punishments, including flogging, branding,
tattooing, and the use of irons (other than for safe custody), are
expressly prohibited as permissible sentence. A sentence of confinement
could take place in any place under the control of the U.S. armed forces
or in any penal institution controlled by the U.S. or its allies.

All sentences would be carried out by the Secretary of Defense, and a
death sentence could not be executed until the appellate review process
is exhausted and the sentence is approved by the President (who could
commute, remit, or suspend the sentence).

[Appellate Review]{.underline}: S. 3930 establishes a Court of Military
Commission Review---composed of one or more panels, each with at least
three appellate military judges---for the purpose of reviewing military
commission decisions. The Court may act only with respect to matters of
law. Once this court has reviewed a commission's decision, an appeal
could be made to the U.S. Court of Appeals for the District of Columbia,
and later with a writ of certiorari, the U.S. Supreme Court. The
Secretary of Defense is tasked with providing a detainee with appellate
counsel.

[Substantive Offenses]{.underline}: The bill codifies certain offenses
that military commissions have tried in the past, which shall be triable
by commission upon enactment at any time without limitation, including:
murder in violation of the law of war, attacking civilians, attacking
civilian objects, attacking protected property, pillaging, denying
quarter, taking hostages, employing poison or similar weapons, using
protected persons as a shield, using protected property as a shield,
torture, inflicting severe physical or mental pain or suffering
(offense), intentionally causing serious bodily injury, mutilating or
maiming, destruction of property in violation of the law of war,
treachery, improperly using a flag of truce, improperly using a
distinctive emblem, intentionally mistreating a dead body, rape, sexual
assault or abuse, hijacking a vessel or aircraft, terrorism, providing
material support for terrorism, wrongfully aiding the enemy, spying,
conspiracy, and perjury or obstruction of justice.

[Treaty Obligations and the Geneva Convention]{.underline}: S. 3930
defines the U.S.'s responsibility under Article 3 of the Geneva
Convention, which prohibits "outrages upon personal dignity" and
"humiliating and degrading treatment." In the aftermath of *Hamdan*, the
vagueness of what Article 3 requires led to significant concerns that
U.S. personnel would lack sufficient guidance on how to appropriately
interrogate detainees without engaging in a war crime. Specifically, the
bill would prohibit "grave" breaches of Article 3 and authorizes the
President to interpret the meaning and application of the Geneva
Convention further and promulgate higher standards beyond grave
breaches. Grave breaches would include torture, cruel or inhuman
treatment (see below), performing biological experiments, murder,
mutilation or maiming, intentionally causing serious bodily injury,
rape, sexual assault or abuse, and taking hostages. Furthermore, no
detainee would be subject to "cruel, inhuman, or degrading treatment or
punishment---as prohibited by the Fifth, Eighth, and Fourteenth
Amendments of the Constitution," the same standard under the Detainee
Treatment Act.

Finally, S. 3930 clarifies that no person may invoke the Geneva
Convention, in any habeas corpus or other civil action in which the U.S.
is a party, as source of rights in a U.S. court. The bill states that no
court, justice, or judge shall have jurisdiction to consider an
application for a writ of habeas corpus filed by alien unlawful enemy
combatant.

**[Committee Action:]{.underline}** S. 3930 was introduced on September
25, 2006, and referred to the Housed Armed Services Committee for
consideration. However, S. 3930 is meant to supersede an earlier
pre-compromise version (H.R. 6054) of the legislation that was reported
on September 12, 2006.

[]{.mark}

**[Cost to Taxpayers:]{.underline}** A CBO cost estimate is not
available yet, but the HASC-reported version (H.R. 6054) would cost \$21
million in FY 2007, and \$141 million over five years, subject to
appropriations. The bill would not affect direct spending or revenues.

[]{.mark}

**[Does the Bill Expand the Size and Scope of the Federal
Government?:]{.underline}** No.

[]{.mark}

**[Constitutional Authority]{.underline}**: Committee Report 109-664
(accompanying H.R. 6054) cites constitutional authority in Article I,
Section 8 of the Constitution, but failed to cite a specific clause.
House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution." *\[emphasis added\]*

[]{.mark}

**[Does the Bill Contain Any New State-Government, Local Government, or
Private Sector Mandates?:]{.underline}** No.

[]{.mark}

**[RSC Staff Contact:]{.underline}** Russ Vought,
<russell.vought@mail.house.gov>, (202) 226-8581