109TH CONGRESS
2D SESSION

H. R. 6166
AN ACT

To amend title 10, United States Code, to authorize trial
by military commission for violations of the law of war,and for other purposes.
1

Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

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1
2

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE.—This Act may be cited as the

3 ‘‘Military Commissions Act of 2006’’.
4(b) TABLE OF CONTENTS.—The table of contents for

5 this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Construction of Presidential authority to establish military commissions.
Sec. 3. Military commissions.
Sec. 4. Amendments to Uniform Code of Military Justice.
Sec. 5. Treaty obligations not establishing grounds for certain claims.
Sec. 6. Implementation of treaty obligations.
Sec. 7. Habeas corpus matters.
Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to protection ofcertain United States Government personnel.
Sec. 9. Review of judgments of military commissions.
Sec. 10. Detention covered by review of decisions of Combatant Status Review
Tribunals of propriety of detention.

6

SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO

7

ESTABLISH MILITARY COMMISSIONS.

8

The authority to establish military commissions

9 under chapter 47A of title 10, United States Code, as
10 added by section 3(a), may not be construed to alter or
11 limit the authority of the President under the Constitution
12 of the United States and laws of the United States to es13 tablish military commissions for areas declared to be
14 under martial law or in occupied territories should cir15 cumstances so require.
16
17
18

SEC. 3. MILITARY COMMISSIONS.

(a) MILITARY COMMISSIONS.—(1) IN

GENERAL.—Subtitle

A of title 10,19

United States Code, is amended by inserting after

20

chapter 47 the following new chapter:•HR 6166 EH

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1‘‘CHAPTER 47A—MILITARY COMMISSIONS‘‘Subchapter‘‘I. General Provisions ..............................................................................
‘‘II. Composition of Military Commissions ...............................................
‘‘III. Pre-Trial Procedure .........................................................................
‘‘IV. Trial Procedure .................................................................................
‘‘V. Sentences ............................................................................................
‘‘VI. Post-Trial Procedure and Review of Military Commissions .............
‘‘VII. Punitive Matters .............................................................................

2

948a
948h
948q
949a
949s
950a
950p

‘‘SUBCHAPTER I—GENERAL PROVISIONS‘‘Sec.
‘‘948a. Definitions.
‘‘948b. Military commissions generally.
‘‘948c. Persons subject to military commissions.
‘‘948d. Jurisdiction of military commissions.
‘‘948e. Annual report to congressional committees.

3 ‘‘§ 948a. Definitions
4
5
6‘‘In this chapter:‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The
term ‘unlawful enemy combatant’ means—7‘‘(i) a person who has engaged in hos-8tilities or who has purposefully and materially9supported hostilities against the United States10or its co-belligerents who is not a lawful enemy

11

combatant (including a person who is part of12

the Taliban, al Qaeda, or associated forces); or

13‘‘(ii) a person who, before, on, or after the

14

date of the enactment of the Military Commis-

15

sions Act of 2006, has been determined to be16

an unlawful enemy combatant by a Combatant

17

Status Review Tribunal or another competent•HR 6166 EH

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tribunal established under the authority of the2

President or the Secretary of Defense.

3‘‘(B) CO-BELLIGERENT.—In this paragraph,4

the term ‘co-belligerent’, with respect to the United

5

States, means any State or armed force joining and6

directly engaged with the United States in hostilities

7or directly supporting hostilities against a common

8enemy.

9‘‘(2) LAWFUL ENEMY COMBATANT.—The term

10

‘lawful enemy combatant’ means a person who is—

11‘‘(A) a member of the regular forces of a

12State party engaged in hostilities against the13

United States;

14‘‘(B) a member of a militia, volunteer

15

corps, or organized resistance movement belong-16

ing to a State party engaged in such hostilities,

17

which are under responsible command, wear a18

fixed distinctive sign recognizable at a distance,

19

carry their arms openly, and abide by the law

20of war; or21‘‘(C) a member of a regular armed force

22

who professes allegiance to a government en-

23

gaged in such hostilities, but not recognized by

24

the United States.

•HR 6166 EH

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1
2
3
4

‘‘(3) ALIEN.—The term ‘alien’ means a person
who is not a citizen of the United States.
‘‘(4) CLASSIFIEDINFORMATION.—The

term‘classified information’ means the following:

5‘‘(A) Any information or material that has

6been determined by the United States Govern-

7

ment pursuant to statute, Executive order, or8

regulation to require protection against unau-

9thorized disclosure for reasons of national secu-

10

rity.

11

‘‘(B) Any restricted data, as that term is12

defined in section 11 y. of the Atomic Energy

13

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

14‘‘(5) GENEVA CONVENTIONS.—The term ‘Gene-15

va Conventions’ means the international conventions

16

signed at Geneva on August 12, 1949.

17 ‘‘§ 948b. Military commissions generally
18‘‘(a) PURPOSE.—This chapter establishes procedures

19 governing the use of military commissions to try alien un20 lawful enemy combatants engaged in hostilities against the
21 United States for violations of the law of war and other
22 offenses triable by military commission.
23‘‘(b) AUTHORITYFOR

MILITARY COMMISSIONS

24 UNDER THIS CHAPTER.—The President is authorized to
25 establish military commissions under this chapter for of-•HR 6166 EH

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1 fenses triable by military commission as provided in this2 chapter.
3‘‘(c) CONSTRUCTION OF PROVISIONS.—The proce-4 dures for military commissions set forth in this chapter
5 are based upon the procedures for trial by general courts6 martial under chapter 47 of this title (the Uniform Code
7 of Military Justice). Chapter 47 of this title does not, by
8 its terms, apply to trial by military commission except as
9 specifically provided in this chapter. The judicial construc10 tion and application of that chapter are not binding on
11 military commissions established under this chapter.
12‘‘(d) INAPPLICABILITY OF CERTAIN PROVISIONS.—

13 (1) The following provisions of this title shall not apply
14 to trial by military commission under this chapter:
15‘‘(A) Section 810 (article 10 of the Uniform

16

Code of Military Justice), relating to speedy trial,

17

including any rule of courts-martial relating to18

speedy trial.

19‘‘(B) Sections 831(a), (b), and (d) (articles

20

31(a), (b), and (d) of the Uniform Code of Military

21

Justice), relating to compulsory self-incrimination.

22‘‘(C) Section 832 (article 32 of the Uniform

23

Code of Military Justice), relating to pretrial inves-24

tigation.

•HR 6166 EH

71‘‘(2) Other provisions of chapter 47 of this title shall

2 apply to trial by military commission under this chapter
3 only to the extent provided by this chapter.
4‘‘(e) TREATMENT OF RULINGS AND PRECEDENTS.—

5 The findings, holdings, interpretations, and other prece6 dents of military commissions under this chapter may not
7 be introduced or considered in any hearing, trial, or other8 proceeding of a court-martial convened under chapter 47
9 of this title. The findings, holdings, interpretations, and10 other precedents of military commissions under this chap11 ter may not form the basis of any holding, decision, or
12 other determination of a court-martial convened under
13 that chapter.
14‘‘(f) STATUS OF COMMISSIONS UNDER COMMON AR-

15

TICLE 3.—A military commission established under this16 chapter is a regularly constituted court, affording all the
17 necessary ‘judicial guarantees which are recognized as in18 dispensable by civilized peoples’ for purposes of common
19 Article 3 of the Geneva Conventions.
20‘‘(g) GENEVA CONVENTIONS NOT ESTABLISHING

21 SOURCE OF RIGHTS.—No alien unlawful enemy combat22 ant subject to trial by military commission under this
23 chapter may invoke the Geneva Conventions as a source
24 of rights.

•HR 6166 EH

81 ‘‘§ 948c. Persons subject to military commissions
2‘‘Any alien unlawful enemy combatant is subject to3 trial by military commission under this chapter.
4 ‘‘§ 948d. Jurisdiction of military commissions
5‘‘(a) JURISDICTION.—A military commission under

6 this chapter shall have jurisdiction to try any offense made7 punishable by this chapter or the law of war when com8 mitted by an alien unlawful enemy combatant before, on,
9 or after September 11, 2001.
10‘‘(b) LAWFUL ENEMY COMBATANTS.—Military com-

11 missions under this chapter shall not have jurisdiction
12 over lawful enemy combatants. Lawful enemy combatants
13 who violate the law of war are subject to chapter 47 of
14 this title. Courts-martial established under that chapter
15 shall have jurisdiction to try a lawful enemy combatant
16 for any offense made punishable under this chapter.
1718‘‘(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANTSTATUS DISPOSITIVE.—A finding, whether be-

19 fore, on, or after the date of the enactment of the Military
20 Commissions Act of 2006, by a Combatant Status Review
21 Tribunal or another competent tribunal established under
22 the authority of the President or the Secretary of Defense
23 that a person is an unlawful enemy combatant is disposi24 tive for purposes of jurisdiction for trial by military com25 mission under this chapter.

•HR 6166 EH91‘‘(d) PUNISHMENTS.—A military commission under2 this chapter may, under such limitations as the Secretary
3 of Defense may prescribe, adjudge any punishment not
4 forbidden by this chapter, including the penalty of death
5 when authorized under this chapter or the law of war.
6 ‘‘§ 948e. Annual report to congressional committees7‘‘(a) ANNUAL REPORT REQUIRED.—Not later than

8 December 31 each year, the Secretary of Defense shall
9 submit to the Committees on Armed Services of the Sen10 ate and the House of Representatives a report on any
11 trials conducted by military commissions under this chap12 ter during such year.
13‘‘(b) FORM.—Each report under this section shall be

14 submitted in unclassified form, but may include a classi15 fied annex.
16‘‘SUBCHAPTER II—COMPOSITION OF MILITARY17

COMMISSIONS‘‘Sec.
‘‘948h. Who may convene military commissions.
‘‘948i. Who may serve on military commissions.
‘‘948j. Military judge of a military commission.
‘‘948k. Detail of trial counsel and defense counsel.
‘‘948l. Detail or employment of reporters and interpreters.
‘‘948m. Number of members; excuse of members; absent and additional members.

18 ‘‘§ 948h. Who may convene military commissions
19‘‘Military commissions under this chapter may be

20 convened by the Secretary of Defense or by any officer•HR 6166 EH

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1 or official of the United States designated by the Secretary
2 for that purpose.
3 ‘‘§ 948i. Who may serve on military commissions
4‘‘(a) IN GENERAL.—Any commissioned officer of the

5 armed forces on active duty is eligible to serve on a mili6 tary commission under this chapter.
7‘‘(b) DETAIL OF MEMBERS.—When convening a mili-

8 tary commission under this chapter, the convening author9 ity shall detail as members of the commission such mem10 bers of the armed forces eligible under subsection (a), as
11 in the opinion of the convening authority, are best quali12 fied for the duty by reason of age, education, training,
13 experience, length of service, and judicial temperament.
14 No member of an armed force is eligible to serve as a
15 member of a military commission when such member is
16 the accuser or a witness for the prosecution or has acted
17 as an investigator or counsel in the same case.
18‘‘(c) EXCUSE OF MEMBERS.—Before a military com-

19 mission under this chapter is assembled for the trial of
20 a case, the convening authority may excuse a member
21 from participating in the case.
22 ‘‘§ 948j. Military judge of a military commission
23‘‘(a) DETAIL OF MILITARY JUDGE.—A military judge

24 shall be detailed to each military commission under this
25 chapter. The Secretary of Defense shall prescribe regula-•HR 6166 EH

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1 tions providing for the manner in which military judges
2 are so detailed to military commissions. The military judge
3 shall preside over each military commission to which he4 has been detailed.
5‘‘(b) QUALIFICATIONS.—A military judge shall be a

6 commissioned officer of the armed forces who is a member
7 of the bar of a Federal court, or a member of the bar
8 of the highest court of a State, and who is certified to
9 be qualified for duty under section 826 of this title (article
10 26 of the Uniform Code of Military Justice) as a military
11 judge in general courts-martial by the Judge Advocate
12 General of the armed force of which such military judge
13 is a member.
14‘‘(c) INELIGIBILITY OF CERTAIN INDIVIDUALS.—No

15 person is eligible to act as military judge in a case of a
16 military commission under this chapter if he is the accuser
17 or a witness or has acted as investigator or a counsel in
18 the same case.
19‘‘(d) CONSULTATION WITH MEMBERS; INELIGI-

20

BILITY TO VOTE.—A military judge detailed to a military

21 commission under this chapter may not consult with the
22 members of the commission except in the presence of the
23 accused (except as otherwise provided in section 949d of
24 this title), trial counsel, and defense counsel, nor may he
25 vote with the members of the commission.

•HR 6166 EH121‘‘(e) OTHER DUTIES.—A commissioned officer who

2 is certified to be qualified for duty as a military judge of
3 a military commission under this chapter may perform
4 such other duties as are assigned to him by or with the
5 approval of the Judge Advocate General of the armed
6 force of which such officer is a member or the designee
7 of such Judge Advocate General.
8‘‘(f) PROHIBITION ON EVALUATION OF FITNESS BY

9 CONVENING AUTHORITY.—The convening authority of a
10 military commission under this chapter shall not prepare
11 or review any report concerning the effectiveness, fitness,
12 or efficiency of a military judge detailed to the military
13 commission which relates to his performance of duty as
14 a military judge on the military commission.
15 ‘‘§ 948k. Detail of trial counsel and defense counsel
16‘‘(a) DETAIL OF COUNSEL GENERALLY.—(1) Trial

17 counsel and military defense counsel shall be detailed for
18 each military commission under this chapter.
19‘‘(2) Assistant trial counsel and assistant and asso-

20 ciate defense counsel may be detailed for a military com21 mission under this chapter.
22‘‘(3) Military defense counsel for a military commis-

23 sion under this chapter shall be detailed as soon as prac24 ticable after the swearing of charges against the accused.

•HR 6166 EH

131‘‘(4) The Secretary of Defense shall prescribe regula-

2 tions providing for the manner in which trial counsel and3 military defense counsel are detailed for military commis4 sions under this chapter and for the persons who are au5 thorized to detail such counsel for such commissions.
6‘‘(b) TRIAL COUNSEL.—Subject to subsection (e),7 trial counsel detailed for a military commission under this8 chapter must be—9‘‘(1) a judge advocate (as that term is defined10

in section 801 of this title (article 1 of the Uniform

11

Code of Military Justice) who—

12‘‘(A) is a graduate of an accredited law

13school or is a member of the bar of a Federal

14

court or of the highest court of a State; and

15‘‘(B) is certified as competent to perform16

duties as trial counsel before general courts-

17

martial by the Judge Advocate General of the18

armed force of which he is a member; or19‘‘(2) a civilian who—20
21‘‘(A) is a member of the bar of a Federal
court or of the highest court of a State; and22‘‘(B) is otherwise qualified to practice be-23

fore the military commission pursuant to regu-

24

lations prescribed by the Secretary of Defense.

•HR 6166 EH141‘‘(c) MILITARY DEFENSE COUNSEL.—Subject to sub-2 section (e), military defense counsel detailed for a military
3 commission under this chapter must be a judge advocate
4 (as so defined) who is—5‘‘(1) a graduate of an accredited law school or

6

is a member of the bar of a Federal court or of the7highest court of a State; and8‘‘(2) certified as competent to perform duties as

9defense counsel before general courts-martial by the10

Judge Advocate General of the armed force of which11

he is a member.

12‘‘(d) CHIEF PROSECUTOR; CHIEF DEFENSE COUN-

13

SEL.—(1) The Chief Prosecutor in a military commission

14 under this chapter shall meet the requirements set forth
15 in subsection (b)(1).
16‘‘(2) The Chief Defense Counsel in a military com-

17 mission under this chapter shall meet the requirements set
18 forth in subsection (c)(1).
19‘‘(e) INELIGIBILITY OF CERTAIN INDIVIDUALS.—No

20 person who has acted as an investigator, military judge,
21 or member of a military commission under this chapter
22 in any case may act later as trial counsel or military de23 fense counsel in the same case. No person who has acted
24 for the prosecution before a military commission under
25 this chapter may act later in the same case for the de-•HR 6166 EH

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1 fense, nor may any person who has acted for the defense
2 before a military commission under this chapter act later
3 in the same case for the prosecution.
4 ‘‘§ 948l. Detail or employment of reporters and inter5
6preters‘‘(a) COURT REPORTERS.—Under such regulations

7 as the Secretary of Defense may prescribe, the convening
8 authority of a military commission under this chapter
9 shall detail to or employ for the commission qualified court
10 reporters, who shall make a verbatim recording of the pro11 ceedings of and testimony taken before the commission.
12‘‘(b) INTERPRETERS.—Under such regulations as the

13 Secretary of Defense may prescribe, the convening author14 ity of a military commission under this chapter may detail
15 to or employ for the military commission interpreters who
16 shall interpret for the commission and, as necessary, for
17 trial counsel and defense counsel and for the accused.
18‘‘(c) TRANSCRIPT; RECORD.—The transcript of a

19 military commission under this chapter shall be under the
20 control of the convening authority of the commission, who
21 shall also be responsible for preparing the record of the
22 proceedings.

•HR 6166 EH

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1 ‘‘§ 948m. Number of members; excuse of members; ab2
3sent and additional members‘‘(a) NUMBER OF MEMBERS.—(1) A military com-

4 mission under this chapter shall, except as provided in
5 paragraph (2), have at least five members.
6‘‘(2) In a case in which the accused before a military

7 commission under this chapter may be sentenced to a pen8 alty of death, the military commission shall have the num9 ber of members prescribed by section 949m(c) of this title.
10‘‘(b) EXCUSE OF MEMBERS.—No member of a mili-

11 tary commission under this chapter may be absent or ex12 cused after the military commission has been assembled
13 for the trial of a case unless excused—
14‘‘(1) as a result of challenge;

15‘‘(2) by the military judge for physical disability

16
17

or other good cause; or‘‘(3) by order of the convening authority for18

good cause.

19‘‘(c) ABSENT AND ADDITIONAL MEMBERS.—When-

20 ever a military commission under this chapter is reduced
21 below the number of members required by subsection (a),22 the trial may not proceed unless the convening authority
23 details new members sufficient to provide not less than
24 such number. The trial may proceed with the new mem25 bers present after the recorded evidence previously intro26 duced before the members has been read to the military•HR 6166 EH

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1 commission in the presence of the military judge, the ac2 cused (except as provided in section 949d of this title),
3 and counsel for both sides.
4‘‘SUBCHAPTER III—PRE-TRIAL PROCEDURE‘‘Sec.
‘‘948q. Charges and specifications.
‘‘948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements.
‘‘948s. Service of charges.

5 ‘‘§ 948q. Charges and specifications
6‘‘(a) CHARGES AND SPECIFICATIONS.—Charges and7 specifications against an accused in a military commission
8 under this chapter shall be signed by a person subject to
9 chapter 47 of this title under oath before a commissioned
10 officer of the armed forces authorized to administer oaths
11 and shall state—
12‘‘(1) that the signer has personal knowledge of,13

or reason to believe, the matters set forth therein;

14

and

15

‘‘(2) that they are true in fact to the best of the16

signer’s knowledge and belief.

17‘‘(b) NOTICE TO ACCUSED.—Upon the swearing of

18 the charges and specifications in accordance with sub19 section (a), the accused shall be informed of the charges
20 against him as soon as practicable.

•HR 6166 EH

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1 ‘‘§ 948r. Compulsory self-incrimination prohibited;2

treatment of statements obtained by tor-3

ture and other statements

4‘‘(a) IN GENERAL.—No person shall be required to

5 testify against himself at a proceeding of a military com6 mission under this chapter.
7‘‘(b) EXCLUSION OF STATEMENTS OBTAINED BY

8 TORTURE.—A statement obtained by use of torture shall9 not be admissible in a military commission under this
10 chapter, except against a person accused of torture as evi11 dence that the statement was made.
12‘‘(c) STATEMENTS OBTAINED BEFORE ENACTMENT

13

OF DETAINEE TREATMENT ACT OF 2005.—A statement

14 obtained before December 30, 2005 (the date of the enact15 ment of the Defense Treatment Act of 2005) in which the
16 degree of coercion is disputed may be admitted only if the
17 military judge finds that—18‘‘(1) the totality of the circumstances renders

19

the statement reliable and possessing sufficient pro-20

bative value; and21‘‘(2) the interests of justice would best be

22

served by admission of the statement into evidence.

23‘‘(d) STATEMENTS OBTAINED AFTER ENACTMENT

24

OF DETAINEE TREATMENT ACT OF 2005.—A statement

25 obtained on or after December 30, 2005 (the date of the
26 enactment of the Defense Treatment Act of 2005) in•HR 6166 EH

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1 which the degree of coercion is disputed may be admitted
2 only if the military judge finds that—3‘‘(1) the totality of the circumstances renders

4

the statement reliable and possessing sufficient pro-5

bative value;

6‘‘(2) the interests of justice would best be

7

served by admission of the statement into evidence;

8

and

9

‘‘(3) the interrogation methods used to obtain10

the statement do not amount to cruel, inhuman, or11degrading treatment prohibited by section 1003 of

12

the Detainee Treatment Act of 2005.

13 ‘‘§ 948s. Service of charges
14‘‘The trial counsel assigned to a case before a military

15 commission under this chapter shall cause to be served
16 upon the accused and military defense counsel a copy of
17 the charges upon which trial is to be had. Such charges
18 shall be served in English and, if appropriate, in another19 language that the accused understands. Such service shall
20 be made sufficiently in advance of trial to prepare a de21 fense.
22‘‘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.
•HR 6166 EH

20‘‘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.

1 ‘‘§ 949a. Rules
2‘‘(a) PROCEDURES AND RULES OF EVIDENCE.—Pre-

3 trial, trial, and post-trial procedures, including elements
4 and modes of proof, for cases triable by military commis5 sion under this chapter may be prescribed by the Secretary
6 of Defense, in consultation with the Attorney General.
7 Such procedures shall, so far as the Secretary considers
8 practicable or consistent with military or intelligence ac9 tivities, apply the principles of law and the rules of evi10 dence in trial by general courts-martial. Such procedures
11 and rules of evidence may not be contrary to or incon12 sistent with this chapter.
13‘‘(b) RULES FOR MILITARY COMMISSION.—(1) Not-

14 withstanding any departures from the law and the rules
15 of evidence in trial by general courts-martial authorized
16 by subsection (a), the procedures and rules of evidence in
17 trials by military commission under this chapter shall in18 clude the following:
19‘‘(A) The accused shall be permitted to present

20

evidence in his defense, to cross-examine the wit-

21

nesses who testify against him, and to examine and•HR 6166 EH

211

respond to evidence admitted against him on the2issue of guilt or innocence and for sentencing, as

3

provided for by this chapter.

4‘‘(B) The accused shall be present at all ses-5

sions of the military commission (other than those6

for deliberations or voting), except when excluded

7

under section 949d of this title.

8910‘‘(C) The accused shall receive the assistance ofcounsel as provided for by section 948k.
‘‘(D) The accused shall be permitted to rep-11

resent himself, as provided for by paragraph (3).

12‘‘(2) In establishing procedures and rules of evidence

13 for military commission proceedings, the Secretary of De14 fense may prescribe the following provisions:
15‘‘(A) Evidence shall be admissible if the mili-

16

tary judge determines that the evidence would have17

probative value to a reasonable person.

18‘‘(B) Evidence shall not be excluded from trial

19

by military commission on the grounds that the evi-

20

dence was not seized pursuant to a search warrant

21

or other authorization.

22‘‘(C) A statement of the accused that is other-23

wise admissible shall not be excluded from trial by24

military commission on grounds of alleged coercion

25

or compulsory self-incrimination so long as the evi-

•HR 6166 EH221dence complies with the provisions of section 948r of2

this title.

34‘‘(D) Evidence shall be admitted as authentic solong as—5‘‘(i) the military judge of the military com-6

mission determines that there is sufficient basis

7

to find that the evidence is what it is claimed

8

to be; and9‘‘(ii) the military judge instructs the mem-10

bers that they may consider any issue as to au-

11

thentication or identification of evidence in de-

12termining the weight, if any, to be given to the13evidence.

14‘‘(E)(i) Except as provided in clause (ii), hear-15

say evidence not otherwise admissible under the16

rules of evidence applicable in trial by general

17

courts-martial may be admitted in a trial by military18

commission if the proponent of the evidence makes

19

known to the adverse party, sufficiently in advance20

to provide the adverse party with a fair opportunity

21

to meet the evidence, the intention of the proponent

22

to offer the evidence, and the particulars of the evi-

23

dence (including information on the general cir-

24

cumstances under which the evidence was obtained).

25

The disclosure of evidence under the preceding sen-•HR 6166 EH231

tence is subject to the requirements and limitations

2

applicable to the disclosure of classified information3

in section 949j(c) of this title.

4‘‘(ii) Hearsay evidence not otherwise admissible

5

under the rules of evidence applicable in trial by

6

general courts-martial shall not be admitted in a7

trial by military commission if the party opposing

8

the admission of the evidence demonstrates that the9evidence is unreliable or lacking in probative value.

10‘‘(F) The military judge shall exclude any evi-

11

dence the probative value of which is substantially12outweighed—13‘‘(i) by the danger of unfair prejudice, con-14

fusion of the issues, or misleading the commis-

15sion; or16‘‘(ii) by considerations of undue delay,

17

waste of time, or needless presentation of cu-

18

mulative evidence.

19‘‘(3)(A) The accused in a military commission under

20 this chapter who exercises the right to self-representation
21 under paragraph (1)(D) shall conform his deportment and22 the conduct of the defense to the rules of evidence, proce23 dure, and decorum applicable to trials by military commis24 sion.

•HR 6166 EH

241‘‘(B) Failure of the accused to conform to the rules

2 described in subparagraph (A) may result in a partial or
3 total revocation by the military judge of the right of self4 representation under paragraph (1)(D). In such case, the5 detailed defense counsel of the accused or an appropriately
6 authorized civilian counsel shall perform the functions nec7 essary for the defense.
8‘‘(c) DELEGATION OF AUTHORITY TO PRESCRIBE

9 REGULATIONS.—The Secretary of Defense may delegate
10 the authority of the Secretary to prescribe regulations
11 under this chapter.
12‘‘(d) NOTIFICATION TO CONGRESSIONAL COMMIT-

13

TEES OF CHANGES TO PROCEDURES.—Not later than 60

14 days before the date on which any proposed modification
15 of the procedures in effect for military commissions under
16 this chapter goes into effect, the Secretary of Defense
17 shall submit to the Committee on Armed Services of the
18 Senate and the Committee on Armed Services of the
19 House of Representatives a report describing the modifica20 tion.
21 ‘‘§ 949b. Unlawfully influencing action of military
22
23

commission‘‘(a) IN GENERAL.—(1) No authority convening a

24 military commission under this chapter may censure, rep25 rimand, or admonish the military commission, or any•HR 6166 EH

25
1 member, military judge, or counsel thereof, with respect
2 to the findings or sentence adjudged by the military com3 mission, or with respect to any other exercises of its or
4 his functions in the conduct of the proceedings.
5‘‘(2) No person may attempt to coerce or, by any un-

6 authorized means, influence—
7‘‘(A) the action of a military commission under

8

this chapter, or any member thereof, in reaching the9findings or sentence in any case;

10‘‘(B) the action of any convening, approving, or11reviewing authority with respect to his judicial acts;

12

or

13

‘‘(C) the exercise of professional judgment by

14

trial counsel or defense counsel.

15‘‘(3) Paragraphs (1) and (2) do not apply with re-

16 spect to—17‘‘(A) general instructional or informational

18

courses in military justice if such courses are de-19signed solely for the purpose of instructing members

20of a command in the substantive and procedural as-

21

pects of military commissions; or22‘‘(B) statements and instructions given in open

23

proceedings by a military judge or counsel.

24‘‘(b) PROHIBITION ON CONSIDERATION OF ACTIONS

25

ON

COMMISSION IN EVALUATION OF FITNESS.—In the•HR 6166 EH

26
1 preparation of an effectiveness, fitness, or efficiency report
2 or any other report or document used in whole or in part
3 for the purpose of determining whether a commissioned
4 officer of the armed forces is qualified to be advanced in
5 grade, or in determining the assignment or transfer of any
6 such officer or whether any such officer should be retained
7 on active duty, no person may—8‘‘(1) consider or evaluate the performance of

9duty of any member of a military commission under

10

this chapter; or11‘‘(2) give a less favorable rating or evaluation

12

to any commissioned officer because of the zeal with13

which such officer, in acting as counsel, represented

14

any accused before a military commission under this15

chapter.

16 ‘‘§ 949c. Duties of trial counsel and defense counsel
17‘‘(a) TRIAL COUNSEL.—The trial counsel of a mili-

18 tary commission under this chapter shall prosecute in the
19 name of the United States.
20‘‘(b) DEFENSE COUNSEL.—(1) The accused shall be

21 represented in his defense before a military commission
22 under this chapter as provided in this subsection.
23‘‘(2) The accused shall be represented by military

24 counsel detailed under section 948k of this title.

•HR 6166 EH

271‘‘(3) The accused may be represented by civilian

2 counsel if retained by the accused, but only if such civilian
3 counsel—
4‘‘(A) is a United States citizen;

5‘‘(B) is admitted to the practice of law in a6

State, district, or possession of the United States or

7

before a Federal court;

8‘‘(C) has not been the subject of any sanction

9of disciplinary action by any court, bar, or other10competent governmental authority for relevant mis-

11

conduct;

12‘‘(D) has been determined to be eligible for ac-

13

cess to classified information that is classified at the14level Secret or higher; and15‘‘(E) has signed a written agreement to comply

16with all applicable regulations or instructions for17

counsel, including any rules of court for conduct18

during the proceedings.

19‘‘(4) Civilian defense counsel shall protect any classi-

20 fied information received during the course of representa21 tion of the accused in accordance with all applicable law
22 governing the protection of classified information and may
23 not divulge such information to any person not authorized
24 to receive it.

•HR 6166 EH

281‘‘(5) If the accused is represented by civilian counsel,

2 detailed military counsel shall act as associate counsel.
3‘‘(6) The accused is not entitled to be represented by

4 more than one military counsel. However, the person au5 thorized under regulations prescribed under section 948k
6 of this title to detail counsel, in that person’s sole discre7 tion, may detail additional military counsel to represent
8 the accused.
9‘‘(7) Defense counsel may cross-examine each witness

10 for the prosecution who testifies before a military commis11 sion under this chapter.
12 ‘‘§ 949d. Sessions
1314‘‘(a) SESSIONS WITHOUT PRESENCE

OF

MEM-

BERS.—(1) At any time after the service of charges which

15 have been referred for trial by military commission under
16 this chapter, the military judge may call the military com17 mission into session without the presence of the members
18 for the purpose of—
19‘‘(A) hearing and determining motions raising20

defenses or objections which are capable of deter-

21

mination without trial of the issues raised by a plea

22

of not guilty;

23‘‘(B) hearing and ruling upon any matter which24

may be ruled upon by the military judge under this•HR 6166 EH291chapter, whether or not the matter is appropriate for2later consideration or decision by the members;

3‘‘(C) if permitted by regulations prescribed by

4

the Secretary of Defense, receiving the pleas of the5accused; and6‘‘(D) performing any other procedural function

7

which may be performed by the military judge under

8

this chapter or under rules prescribed pursuant to9section 949a of this title and which does not require10

the presence of the members.

11‘‘(2) Except as provided in subsections (c) and (e),12 any proceedings under paragraph (1) shall—
13‘‘(A) be conducted in the presence of the ac-

14

cused, defense counsel, and trial counsel; and

15‘‘(B) be made part of the record.

16‘‘(b) PROCEEDINGS IN PRESENCE OF ACCUSED.—

17 Except as provided in subsections (c) and (e), all pro18 ceedings of a military commission under this chapter, in19 cluding any consultation of the members with the military
20 judge or counsel, shall—
21
22
23

‘‘(1) be in the presence of the accused, defense
counsel, and trial counsel; and‘‘(2) be made a part of the record.

•HR 6166 EH301‘‘(c) DELIBERATION OR VOTE OF MEMBERS.—When

2 the members of a military commission under this chapter
3 deliberate or vote, only the members may be present.
4‘‘(d) CLOSURE OF PROCEEDINGS.—(1) The military

5 judge may close to the public all or part of the proceedings
6 of a military commission under this chapter, but only in
7 accordance with this subsection.
8‘‘(2) The military judge may close to the public all

9 or a portion of the proceedings under paragraph (1) only
10 upon making a specific finding that such closure is nec11 essary to—12‘‘(A) protect information the disclosure of which

13

could reasonably be expected to cause damage to the14national security, including intelligence or law en-

15

forcement sources, methods, or activities; or16‘‘(B) ensure the physical safety of individuals.

17‘‘(3) A finding under paragraph (2) may be based

18 upon a presentation, including a presentation ex parte or
19 in camera, by either trial counsel or defense counsel.
20‘‘(e) EXCLUSION OF ACCUSED FROM CERTAIN PRO-

21

CEEDINGS.—The military judge may exclude the accused

22 from any portion of a proceeding upon a determination
23 that, after being warned by the military judge, the accused
24 persists in conduct that justifies exclusion from the court25 room—•HR 6166 EH

31
1
2
3

‘‘(1) to ensure the physical safety of individuals;or‘‘(2) to prevent disruption of the proceedings by

4

the accused.

5‘‘(f) PROTECTION OF CLASSIFIED INFORMATION.—

6‘‘(1) NATIONALSECURITYPRIVILEGE.—(A)7Classified information shall be protected and is privi-

8

leged from disclosure if disclosure would be detri-9mental to the national security. The rule in the pre-10

ceding sentence applies to all stages of the pro-11

ceedings of military commissions under this chapter.

12‘‘(B) The privilege referred to in subparagraph

13(A) may be claimed by the head of the executive or

14

military department or government agency con-15

cerned based on a finding by the head of that de-16

partment or agency that—1718‘‘(i) the information is properly classified;and19‘‘(ii) disclosure of the information would be20

detrimental to the national security.

21‘‘(C) A person who may claim the privilege re-22

ferred to in subparagraph (A) may authorize a rep-23

resentative, witness, or trial counsel to claim the24

privilege and make the finding described in subpara-

25

graph (B) on behalf of such person. The authority•HR 6166 EH

32
1of the representative, witness, or trial counsel to do

2

so is presumed in the absence of evidence to the con-3

trary.

45‘‘(2) INTRODUCTION OF CLASSIFIED INFORMATION.—

6‘‘(A) ALTERNATIVES TO DISCLOSURE.—To

7

protect classified information from disclosure,8

the military judge, upon motion of trial counsel,

9

shall authorize, to the extent practicable—

10‘‘(i) the deletion of specified items of

11classified information from documents to12

be introduced as evidence before the mili-

13

tary commission;

14‘‘(ii) the substitution of a portion or

15

summary of the information for such clas-

16

sified documents; or17‘‘(iii) the substitution of a statement18of relevant facts that the classified infor-

19

mation would tend to prove.

20‘‘(B) PROTECTION OF SOURCES, METHODS,

21

OR ACTIVITIES.—The military judge, upon mo-

22tion of trial counsel, shall permit trial counsel

23

to introduce otherwise admissible evidence be-24

fore the military commission, while protecting

25

from disclosure the sources, methods, or activi-•HR 6166 EH

33
1ties by which the United States acquired the2evidence if the military judge finds that (i) the3

sources, methods, or activities by which the4United States acquired the evidence are classi-

5fied, and (ii) the evidence is reliable. The mili-

6tary judge may require trial counsel to present

7

to the military commission and the defense, to8

the extent practicable and consistent with na-

9tional security, an unclassified summary of the10sources, methods, or activities by which the11

United States acquired the evidence.

12‘‘(C) ASSERTION OF NATIONAL SECURITY

13

PRIVILEGE AT TRIAL.—During the examination

14of any witness, trial counsel may object to any

15question, line of inquiry, or motion to admit evi-

16

dence that would require the disclosure of clas-

17

sified information. Following such an objection,18

the military judge shall take suitable action to19

safeguard such classified information. Such ac-

20tion may include the review of trial counsel’s

21

claim of privilege by the military judge in cam-22

era and on an ex parte basis, and the delay of

23

proceedings to permit trial counsel to consult

24with the department or agency concerned as to•HR 6166 EH

341

whether the national security privilege should

2

be asserted.

3‘‘(3) CONSIDERATION OF PRIVILEGE AND RE-

4

LATED MATERIALS.—A claim of privilege under this5subsection, and any materials submitted in support

6

thereof, shall, upon request of the Government, be

7

considered by the military judge in camera and shall8

not be disclosed to the accused.

9‘‘(4) ADDITIONALREGULATIONS.—The

Sec-

10

retary of Defense may prescribe additional regula-

11

tions, consistent with this subsection, for the use

12

and protection of classified information during pro-13

ceedings of military commissions under this chapter.

14

A report on any regulations so prescribed, or modi-

15

fied, shall be submitted to the Committees on Armed

16

Services of the Senate and the House of Representa-

17

tives not later than 60 days before the date on which

18

such regulations or modifications, as the case may

19

be, go into effect.

20 ‘‘§ 949e. Continuances
21‘‘The military judge in a military commission under

22 this chapter may, for reasonable cause, grant a continu23 ance to any party for such time, and as often, as may
24 appear to be just.

•HR 6166 EH

35
1 ‘‘§ 949f. Challenges
2

‘‘(a)

CHALLENGES

AUTHORIZED.—The

military

3 judge and members of a military commission under this
4 chapter may be challenged by the accused or trial counsel
5 for cause stated to the commission. The military judge
6 shall determine the relevance and validity of challenges for
7 cause. The military judge may not receive a challenge to
8 more than one person at a time. Challenges by trial coun9 sel shall ordinarily be presented and decided before those
10 by the accused are offered.
11‘‘(b) PEREMPTORY CHALLENGES.—Each accused

12 and the trial counsel are entitled to one peremptory chal13 lenge. The military judge may not be challenged except
14 for cause.
15‘‘(c) CHALLENGES AGAINST ADDITIONAL MEM-

16

BERS.—Whenever additional members are detailed to a

17 military commission under this chapter, and after any
18 challenges for cause against such additional members are
19 presented and decided, each accused and the trial counsel
20 are entitled to one peremptory challenge against members
21 not previously subject to peremptory challenge.
22 ‘‘§ 949g. Oaths
23‘‘(a) IN GENERAL.—(1) Before performing their re-

24 spective duties in a military commission under this chap25 ter, military judges, members, trial counsel, defense coun-•HR 6166 EH

36
1 sel, reporters, and interpreters shall take an oath to per2 form their duties faithfully.
3‘‘(2) The form of the oath required by paragraph (1),4 the time and place of the taking thereof, the manner of
5 recording the same, and whether the oath shall be taken
6 for all cases in which duties are to be performed or for
7 a particular case, shall be as prescribed in regulations of
8 the Secretary of Defense. Those regulations may provide
9 that—10‘‘(A) an oath to perform faithfully duties as a11

military judge, trial counsel, or defense counsel may

12

be taken at any time by any judge advocate or other13

person certified to be qualified or competent for the14

duty; and

15‘‘(B) if such an oath is taken, such oath need16

not again be taken at the time the judge advocate

17

or other person is detailed to that duty.

18‘‘(b) WITNESSES.—Each witness before a military

19 commission under this chapter shall be examined on oath.
20 ‘‘§ 949h. Former jeopardy
21‘‘(a) IN GENERAL.—No person may, without his con-22 sent, be tried by a military commission under this chapter
23 a second time for the same offense.
24‘‘(b) SCOPE OF TRIAL.—No proceeding in which the

25 accused has been found guilty by military commission•HR 6166 EH

37
1 under this chapter upon any charge or specification is a2 trial in the sense of this section until the finding of guilty
3 has become final after review of the case has been fully
4 completed.
5 ‘‘§ 949i. Pleas of the accused
6‘‘(a) ENTRY OF PLEA OF NOT GUILTY.—If an ac-

7 cused in a military commission under this chapter after
8 a plea of guilty sets up matter inconsistent with the plea,
9 or if it appears that the accused has entered the plea of
10 guilty through lack of understanding of its meaning and
11 effect, or if the accused fails or refuses to plead, a plea
12 of not guilty shall be entered in the record, and the mili13 tary commission shall proceed as though the accused had
14 pleaded not guilty.
15‘‘(b) FINDING OF GUILT AFTER GUILTY PLEA.—

16 With respect to any charge or specification to which a plea
17 of guilty has been made by the accused in a military com18 mission under this chapter and accepted by the military
19 judge, a finding of guilty of the charge or specification
20 may be entered immediately without a vote. The finding
21 shall constitute the finding of the commission unless the
22 plea of guilty is withdrawn prior to announcement of the
23 sentence, in which event the proceedings shall continue as
24 though the accused had pleaded not guilty.

•HR 6166 EH

38
1 ‘‘§ 949j. Opportunity to obtain witnesses and other2
3evidence‘‘(a) RIGHT OF DEFENSE COUNSEL.—Defense coun-

4 sel in a military commission under this chapter shall have
5 a reasonable opportunity to obtain witnesses and other evi6 dence as provided in regulations prescribed by the Sec7 retary of Defense.
8‘‘(b) PROCESS FOR COMPULSION.—Process issued in

9 a military commission under this chapter to compel wit10 nesses to appear and testify and to compel the production
11 of other evidence—
12‘‘(1) shall be similar to that which courts of the

13

United States having criminal jurisdiction may law-14

fully issue; and15‘‘(2) shall run to any place where the United

16

States shall have jurisdiction thereof.

17‘‘(c) PROTECTION OF CLASSIFIED INFORMATION.—

18 (1) With respect to the discovery obligations of trial coun19 sel under this section, the military judge, upon motion of
20 trial counsel, shall authorize, to the extent practicable—
21‘‘(A) the deletion of specified items of classified

22

information from documents to be made available to23

the accused;

24‘‘(B) the substitution of a portion or summary

25of the information for such classified documents; or•HR 6166 EH

391‘‘(C) the substitution of a statement admitting

2

relevant facts that the classified information would

3

tend to prove.

4‘‘(2) The military judge, upon motion of trial counsel,

5 shall authorize trial counsel, in the course of complying
6 with discovery obligations under this section, to protect
7 from disclosure the sources, methods, or activities by
8 which the United States acquired evidence if the military
9 judge finds that the sources, methods, or activities by
10 which the United States acquired such evidence are classi11 fied. The military judge may require trial counsel to pro12 vide, to the extent practicable, an unclassified summary
13 of the sources, methods, or activities by which the United
14 States acquired such evidence.
15‘‘(d) EXCULPATORY EVIDENCE.—(1) As soon as

16 practicable, trial counsel shall disclose to the defense the
17 existence of any evidence known to trial counsel that rea18 sonably tends to exculpate the accused. Where exculpatory
19 evidence is classified, the accused shall be provided with
20 an adequate substitute in accordance with the procedures
21 under subsection (c).
22‘‘(2) In this subsection, the term ‘evidence known to

23 trial counsel’, in the case of exculpatory evidence, means
24 exculpatory evidence that the prosecution would be re-•HR 6166 EH

40
1 quired to disclose in a trial by general court-martial under2 chapter 47 of this title.
3 ‘‘§ 949k. Defense of lack of mental responsibility
4‘‘(a) AFFIRMATIVE DEFENSE.—It is an affirmative

5 defense in a trial by military commission under this chap6 ter that, at the time of the commission of the acts consti7 tuting the offense, the accused, as a result of a severe
8 mental disease or defect, was unable to appreciate the na9 ture and quality or the wrongfulness of the acts. Mental
10 disease or defect does not otherwise constitute a defense.
11‘‘(b) BURDEN OF PROOF.—The accused in a military

12 commission under this chapter has the burden of proving
13 the defense of lack of mental responsibility by clear and
14 convincing evidence.
1516‘‘(c) FINDINGS FOLLOWING ASSERTION

OF

DE-

FENSE.—Whenever lack of mental responsibility of the ac-

17 cused with respect to an offense is properly at issue in18 a military commission under this chapter, the military
19 judge shall instruct the members of the commission as to
20 the defense of lack of mental responsibility under this sec21 tion and shall charge them to find the accused—22‘‘(1) guilty;

23‘‘(2) not guilty; or24‘‘(3) subject to subsection (d), not guilty by rea-

25

son of lack of mental responsibility.

•HR 6166 EH411‘‘(d) MAJORITY VOTE REQUIRED FOR FINDING.—

2 The accused shall be found not guilty by reason of lack3 of mental responsibility under subsection (c)(3) only if a
4 majority of the members present at the time the vote is
5 taken determines that the defense of lack of mental re6 sponsibility has been established.
7 ‘‘§ 949l. Voting and rulings
8‘‘(a) VOTE BY SECRET WRITTEN BALLOT.—Voting

9 by members of a military commission under this chapter
10 on the findings and on the sentence shall be by secret writ11 ten ballot.
12‘‘(b) RULINGS.—(1) The military judge in a military

13 commission under this chapter shall rule upon all ques14 tions of law, including the admissibility of evidence and
15 all interlocutory questions arising during the proceedings.
16‘‘(2) Any ruling made by the military judge upon a

17 question of law or an interlocutory question (other than
18 the factual issue of mental responsibility of the accused)
19 is conclusive and constitutes the ruling of the military
20 commission. However, a military judge may change his
21 ruling at any time during the trial.
22‘‘(c) INSTRUCTIONS PRIOR TO VOTE.—Before a vote

23 is taken of the findings of a military commission under
24 this chapter, the military judge shall, in the presence of•HR 6166 EH

42
1 the accused and counsel, instruct the members as to the2 elements of the offense and charge the members—
3‘‘(1) that the accused must be presumed to be4

innocent until his guilt is established by legal and5competent evidence beyond a reasonable doubt;

6‘‘(2) that in the case being considered, if there7

is a reasonable doubt as to the guilt of the accused,8

the doubt must be resolved in favor of the accused9and he must be acquitted;

10‘‘(3) that, if there is reasonable doubt as to the11degree of guilt, the finding must be in a lower de-

12

gree as to which there is no reasonable doubt; and13‘‘(4) that the burden of proof to establish the14

guilt of the accused beyond a reasonable doubt is

15

upon the United States.

16 ‘‘§ 949m. Number of votes required
17‘‘(a) CONVICTION.—No person may be convicted by

18 a military commission under this chapter of any offense,
19 except as provided in section 949i(b) of this title or by
20 concurrence of two-thirds of the members present at the
21 time the vote is taken.
22‘‘(b) SENTENCES.—(1) No person may be sentenced

23 by a military commission to suffer death, except insofar
24 as—•HR 6166 EH

431‘‘(A) the penalty of death is expressly author-

2

ized under this chapter or the law of war for an of-

3

fense of which the accused has been found guilty;

4‘‘(B) trial counsel expressly sought the penalty

5of death by filing an appropriate notice in advance6of trial;

7‘‘(C) the accused is convicted of the offense by

8

the concurrence of all the members present at the9time the vote is taken; and10‘‘(D) all the members present at the time the11vote is taken concur in the sentence of death.

12‘‘(2) No person may be sentenced to life imprison-

13 ment, or to confinement for more than 10 years, by a mili14 tary commission under this chapter except by the concur15 rence of three-fourths of the members present at the time
16 the vote is taken.
17‘‘(3) All other sentences shall be determined by a

18 military commission by the concurrence of two-thirds of
19 the members present at the time the vote is taken.
20‘‘(c) NUMBER OF MEMBERS REQUIRED FOR PEN-

21

ALTY OF DEATH.—(1) Except as provided in paragraph

22 (2), in a case in which the penalty of death is sought, the23 number of members of the military commission under this
24 chapter shall be not less than 12.

•HR 6166 EH

441‘‘(2) In any case described in paragraph (1) in which

2 12 members are not reasonably available because of phys3 ical conditions or military exigencies, the convening au4 thority shall specify a lesser number of members for the
5 military commission (but not fewer than 9 members), and6 the military commission may be assembled, and the trial
7 held, with not fewer than the number of members so speci8 fied. In such a case, the convening authority shall make9 a detailed written statement, to be appended to the record,
10 stating why a greater number of members were not rea11 sonably available.
12 ‘‘§ 949n. Military commission to announce action
13‘‘A military commission under this chapter shall an-

14 nounce its findings and sentence to the parties as soon
15 as determined.
16 ‘‘§ 949o. Record of trial
17‘‘(a) RECORD; AUTHENTICATION.—Each military

18 commission under this chapter shall keep a separate, ver19 batim, record of the proceedings in each case brought be20 fore it, and the record shall be authenticated by the signa21 ture of the military judge. If the record cannot be authen22 ticated by the military judge by reason of his death, dis23 ability, or absence, it shall be authenticated by the signa24 ture of the trial counsel or by a member of the commission
25 if the trial counsel is unable to authenticate it by reason•HR 6166 EH

45
1 of his death, disability, or absence. Where appropriate,
2 and as provided in regulations prescribed by the Secretary
3 of Defense, the record of a military commission under this
4 chapter may contain a classified annex.
5‘‘(b) COMPLETE RECORD REQUIRED.—A complete

6 record of the proceedings and testimony shall be prepared
7 in every military commission under this chapter.
8‘‘(c) PROVISION OF COPY TO ACCUSED.—A copy of

9 the record of the proceedings of the military commission
10 under this chapter shall be given the accused as soon as
11 it is authenticated. If the record contains classified infor12 mation, or a classified annex, the accused shall be given
13 a redacted version of the record consistent with the re14 quirements of section 949d of this title. Defense counsel
15 shall have access to the unredacted record, as provided
16 in regulations prescribed by the Secretary of Defense.
17‘‘SUBCHAPTER V—SENTENCES‘‘Sec.
‘‘949s. Cruel or unusual punishments prohibited.
‘‘949t. Maximum limits.
‘‘949u. Execution of confinement.

18 ‘‘§ 949s. Cruel or unusual punishments prohibited
19‘‘Punishment by flogging, or by branding, marking,20 or tattooing on the body, or any other cruel or unusual
21 punishment, may not be adjudged by a military commis22 sion under this chapter or inflicted under this chapter
23 upon any person subject to this chapter. The use of irons,•HR 6166 EH

46
1 single or double, except for the purpose of safe custody,
2 is prohibited under this chapter.
3 ‘‘§ 949t. Maximum limits
4‘‘The punishment which a military commission under

5 this chapter may direct for an offense may not exceed such
6 limits as the President or Secretary of Defense may pre7 scribe for that offense.
8 ‘‘§ 949u. Execution of confinement
9‘‘(a) IN GENERAL.—Under such regulations as the

10 Secretary of Defense may prescribe, a sentence of confine11 ment adjudged by a military commission under this chap12 ter may be carried into execution by confinement—1314‘‘(1) in any place of confinement under the control of any of the armed forces; or15‘‘(2) in any penal or correctional institution

16

under the control of the United States or its allies,

17

or which the United States may be allowed to use.

18‘‘(b) TREATMENT DURING CONFINEMENT BY OTHER

19 THAN THE ARMED FORCES.—Persons confined under
20 subsection (a)(2) in a penal or correctional institution not
21 under the control of an armed force are subject to the
22 same discipline and treatment as persons confined or com23 mitted by the courts of the United States or of the State,
24 District of Columbia, or place in which the institution is
25 situated.

•HR 6166 EH

47
1‘‘SUBCHAPTER VI—POST-TRIAL PROCEDURE

2

AND REVIEW OF MILITARY COMMISSIONS‘‘Sec.
‘‘950a. Error of law; lesser included offense.
‘‘950b. Review by the convening authority.
‘‘950c. Appellate referral; waiver or withdrawal of appeal.
‘‘950d. Appeal by the United States.
‘‘950e. Rehearings.
‘‘950f. Review by Court of Military Commission Review.
‘‘950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court.
‘‘950h. Appellate counsel.
‘‘950i. Execution of sentence; procedures for execution of sentence of death.
‘‘950j. Finality or proceedings, findings, and sentences.

3 ‘‘§ 950a. Error of law; lesser included offense4‘‘(a) ERROR OF LAW.—A finding or sentence of a

5 military commission under this chapter may not be held
6 incorrect on the ground of an error of law unless the error
7 materially prejudices the substantial rights of the accused.
8‘‘(b) LESSER INCLUDED OFFENSE.—Any reviewing

9 authority with the power to approve or affirm a finding
10 of guilty by a military commission under this chapter may
11 approve or affirm, instead, so much of the finding as in12 cludes a lesser included offense.
13 ‘‘§ 950b. Review by the convening authority
14‘‘(a) NOTICE TO CONVENING AUTHORITY OF FIND-

15

INGS AND SENTENCE.—The findings and sentence of a

16 military commission under this chapter shall be reported
17 in writing promptly to the convening authority after the
18 announcement of the sentence.

•HR 6166 EH

481‘‘(b) SUBMITTAL OF MATTERS BY ACCUSED TO CON-

2

VENING AUTHORITY.—(1) The accused may submit to the

3 convening authority matters for consideration by the con4 vening authority with respect to the findings and the sen5 tence of the military commission under this chapter.
6‘‘(2)(A) Except as provided in subparagraph (B), a

7 submittal under paragraph (1) shall be made in writing
8 within 20 days after the accused has been given an au9 thenticated record of trial under section 949o(c) of this
10 title.
11‘‘(B) If the accused shows that additional time is re-

12 quired for the accused to make a submittal under para13 graph (1), the convening authority may, for good cause,
14 extend the applicable period under subparagraph (A) for
15 not more than an additional 20 days.
16‘‘(3) The accused may waive his right to make a sub-17 mittal to the convening authority under paragraph (1).
18 Such a waiver shall be made in writing and may not be
19 revoked. For the purposes of subsection (c)(2), the time
20 within which the accused may make a submittal under this21 subsection shall be deemed to have expired upon the sub22 mittal of a waiver under this paragraph to the convening
23 authority.
24‘‘(c) ACTION BY CONVENING AUTHORITY.—(1) The

25 authority under this subsection to modify the findings and•HR 6166 EH

49
1 sentence of a military commission under this chapter is
2 a matter of the sole discretion and prerogative of the con3 vening authority.
4‘‘(2)(A) The convening authority shall take action on

5 the sentence of a military commission under this chapter.
6‘‘(B) Subject to regulations prescribed by the Sec-

7 retary of Defense, action on the sentence under this para8 graph may be taken only after consideration of any mat9 ters submitted by the accused under subsection (b) or
10 after the time for submitting such matters expires, which11 ever is earlier.
12‘‘(C) In taking action under this paragraph, the con-13 vening authority may, in his sole discretion, approve, dis14 approve, commute, or suspend the sentence in whole or
15 in part. The convening authority may not increase a sen16 tence beyond that which is found by the military commis17 sion.
18‘‘(3) The convening authority is not required to take19 action on the findings of a military commission under this
20 chapter. If the convening authority takes action on the
21 findings, the convening authority may, in his sole discre22 tion, may—
23
24‘‘(A) dismiss any charge or specification by setting aside a finding of guilty thereto; or•HR 6166 EH501‘‘(B) change a finding of guilty to a charge to2

a finding of guilty to an offense that is a lesser in-3

cluded offense of the offense stated in the charge.

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

5 cused or on defense counsel notice of any action taken by
6 the convening authority under this subsection.
7‘‘(d) ORDER OF REVISION OR REHEARING.—(1) Sub-

8 ject to paragraphs (2) and (3), the convening authority
9 of a military commission under this chapter may, in his
10 sole discretion, order a proceeding in revision or a rehear11 ing.
12‘‘(2)(A) Except as provided in subparagraph (B), a

13 proceeding in revision may be ordered by the convening
14 authority if—
1516‘‘(i) there is an apparent error or omission in
the record; or17‘‘(ii) the record shows improper or inconsistent

18

action by the military commission with respect to19

the findings or sentence that can be rectified without

20

material prejudice to the substantial rights of the21

accused.

22‘‘(B) In no case may a proceeding in revision—

23‘‘(i) reconsider a finding of not guilty of a spec-

24

ification or a ruling which amounts to a finding of25

not guilty;•HR 6166 EH

51
1‘‘(ii) reconsider a finding of not guilty of any

2charge, unless there has been a finding of guilty

3

under a specification laid under that charge, which

4

sufficiently alleges a violation; or5‘‘(iii) increase the severity of the sentence un-

6less the sentence prescribed for the offense is man-7

datory.

8‘‘(3) A rehearing may be ordered by the convening

9 authority if the convening authority disapproves the find10 ings and sentence and states the reasons for disapproval
11 of the findings. If the convening authority disapproves the
12 finding and sentence and does not order a rehearing, the13 convening authority shall dismiss the charges. A rehearing
14 as to the findings may not be ordered by the convening
15 authority when there is a lack of sufficient evidence in the
16 record to support the findings. A rehearing as to the sen17 tence may be ordered by the convening authority if the
18 convening authority disapproves the sentence.
19 ‘‘§ 950c. Appellate referral; waiver or withdrawal of20

appeal21‘‘(a) AUTOMATIC REFERRAL FOR APPELLATE RE-

22

VIEW.—Except as provided under subsection (b), in each

23 case in which the final decision of a military commission
24 (as approved by the convening authority) includes a find25 ing of guilty, the convening authority shall refer the case•HR 6166 EH

52
1 to the Court of Military Commission Review. Any such re2 ferral shall be made in accordance with procedures pre3 scribed under regulations of the Secretary.
4‘‘(b) WAIVER OF RIGHT OF REVIEW.—(1) In each

5 case subject to appellate review under section 950f of this
6 title, except a case in which the sentence as approved
7 under section 950b of this title extends to death, the ac8 cused may file with the convening authority a statement
9 expressly waiving the right of the accused to such review.
10‘‘(2) A waiver under paragraph (1) shall be signed

11 by both the accused and a defense counsel.
12‘‘(3) A waiver under paragraph (1) must be filed, if

13 at all, within 10 days after notice on the action is served
14 on the accused or on defense counsel under section
15 950b(c)(4) of this title. The convening authority, for good
16 cause, may extend the period for such filing by not more
17 than 30 days.
18‘‘(c) WITHDRAWAL OF APPEAL.—Except in a case in

19 which the sentence as approved under section 950b of this
20 title extends to death, the accused may withdraw an ap21 peal at any time.
22‘‘(d) EFFECTOF

WAIVEROR

WITHDRAWAL.—A

23 waiver of the right to appellate review or the withdrawal
24 of an appeal under this section bars review under section
25 950f of this title.

•HR 6166 EH

53
1 ‘‘§ 950d. Appeal by the United States2‘‘(a) INTERLOCUTORY APPEAL.—(1) Except as pro-

3 vided in paragraph (2), in a trial by military commission
4 under this chapter, the United States may take an inter5 locutory appeal to the Court of Military Commission Re6 view of any order or ruling of the military judge that—
7‘‘(A) terminates proceedings of the military8commission with respect to a charge or specification;

9‘‘(B) excludes evidence that is substantial proof

10of a fact material in the proceeding; or11‘‘(C) relates to a matter under subsection (d),12(e), or (f) of section 949d of this title or section

13

949j(c) of this title.

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

15 graph (1) an order or ruling that is, or amounts to, a find16 ing of not guilty by the military commission with respect
17 to a charge or specification.
18‘‘(b) NOTICE OF APPEAL.—The United States shall

19 take an appeal of an order or ruling under subsection (a)20 by filing a notice of appeal with the military judge within
21 five days after the date of such order or ruling.
22‘‘(c) APPEAL.—An appeal under this section shall be

23 forwarded, by means specified in regulations prescribed
24 the Secretary of Defense, directly to the Court of Military
25 Commission Review. In ruling on an appeal under this sec-

•HR 6166 EH

54
1 tion, the Court may act only with respect to matters of
2 law.
3‘‘(d) APPEAL FROM ADVERSE RULING.—The United

4 States may appeal an adverse ruling on an appeal under
5 subsection (c) to the United States Court of Appeals for6 the District of Columbia Circuit by filing a petition for7 review in the Court of Appeals within 10 days after the
8 date of such ruling. Review under this subsection shall be
9 at the discretion of the Court of Appeals.
10 ‘‘§ 950e. Rehearings
11‘‘(a) COMPOSITION OF MILITARY COMMISSION FOR

12 REHEARING.—Each rehearing under this chapter shall
13 take place before a military commission under this chapter
14 composed of members who were not members of the mili15 tary commission which first heard the case.
16‘‘(b) SCOPE OF REHEARING.—(1) Upon a rehear-

17 ing—18‘‘(A) the accused may not be tried for any of-

19

fense of which he was found not guilty by the first20

military commission; and2122‘‘(B) no sentence in excess of or more than theoriginal sentence may be imposed unless—23‘‘(i) the sentence is based upon a finding

24

of guilty of an offense not considered upon the25

merits in the original proceedings; or•HR 6166 EH

55
1
2
3

‘‘(ii) the sentence prescribed for the offense is mandatory.
‘‘(2) Upon a rehearing, if the sentence approved after

4 the first military commission was in accordance with a
5 pretrial agreement and the accused at the rehearing
6 changes his plea with respect to the charges or specifica7 tions upon which the pretrial agreement was based, or oth8 erwise does not comply with pretrial agreement, the sen9 tence as to those charges or specifications may include any
10 punishment not in excess of that lawfully adjudged at the
11 first military commission.
12 ‘‘§ 950f. Review by Court of Military Commission Re13
14

view

‘‘(a) ESTABLISHMENT.—The Secretary of Defense

15 shall establish a Court of Military Commission Review
16 which shall be composed of one or more panels, and each
17 such panel shall be composed of not less than three appel18 late military judges. For the purpose of reviewing military
19 commission decisions under this chapter, the court may
20 sit in panels or as a whole in accordance with rules pre21 scribed by the Secretary.
22‘‘(b) APPELLATE MILITARY JUDGES.—The Secretary

23 shall assign appellate military judges to a Court of Mili24 tary Commission Review. Each appellate military judge
25 shall meet the qualifications for military judges prescribed•HR 6166 EH

56
1 by section 948j(b) of this title or shall be a civilian with
2 comparable qualifications. No person may be serve as an
3 appellate military judge in any case in which that person
4 acted as a military judge, counsel, or reviewing official.
5‘‘(c) CASES TO BE REVIEWED.—The Court of Mili-

6 tary Commission Review, in accordance with procedures
7 prescribed under regulations of the Secretary, shall review
8 the record in each case that is referred to the Court by
9 the convening authority under section 950c of this title
10 with respect to any matter of law raised by the accused.
11‘‘(d) SCOPE OF REVIEW.—In a case reviewed by the

12 Court of Military Commission Review under this section,
13 the Court may act only with respect to matters of law.
14 ‘‘§ 950g. Review by the United States Court of Ap15

peals for the District of Columbia Circuit

16

and the Supreme Court

17‘‘(a) EXCLUSIVE APPELLATE JURISDICTION.—(1)(A)

18 Except as provided in subparagraph (B), the United
19 States Court of Appeals for the District of Columbia Cir20 cuit shall have exclusive jurisdiction to determine the va21 lidity of a final judgment rendered by a military commis22 sion (as approved by the convening authority) under this
23 chapter.

•HR 6166 EH

571‘‘(B) The Court of Appeals may not review the final

2 judgment until all other appeals under this chapter have
3 been waived or exhausted.
4‘‘(2) A petition for review must be filed by the ac-

5 cused in the Court of Appeals not later than 20 days after
6 the date on which—
7‘‘(A) written notice of the final decision of the8

Court of Military Commission Review is served on

9

the accused or on defense counsel; or

10‘‘(B) the accused submits, in the form pre-11

scribed by section 950c of this title, a written notice

12

waiving the right of the accused to review by the13

Court of Military Commission Review under section

14

950f of this title.

15‘‘(b) STANDARD FOR REVIEW.—In a case reviewed

16 by it under this section, the Court of Appeals may act
17 only with respect to matters of law.
18‘‘(c) SCOPE OF REVIEW.—The jurisdiction of the

19 Court of Appeals on an appeal under subsection (a) shall
20 be limited to the consideration of—21‘‘(1) whether the final decision was consistent22

with the standards and procedures specified in this23

chapter; and2425‘‘(2) to the extent applicable, the Constitution
and the laws of the United States.

•HR 6166 EH

581‘‘(d) SUPREME COURT.—The Supreme Court may re-

2 view by writ of certiorari the final judgment of the Court
3 of Appeals pursuant to section 1257 of title 28.
4 ‘‘§ 950h. Appellate counsel5‘‘(a) APPOINTMENT.—The Secretary of Defense

6 shall, by regulation, establish procedures for the appoint7 ment of appellate counsel for the United States and for8 the accused in military commissions under this chapter.
9 Appellate counsel shall meet the qualifications for counsel
10 appearing before military commissions under this chapter.
11‘‘(b) REPRESENTATION OF UNITED STATES.—Appel-

12 late counsel appointed under subsection (a)—13‘‘(1) shall represent the United States in any

14

appeal or review proceeding under this chapter be-

15

fore the Court of Military Commission Review; and16‘‘(2) may, when requested to do so by the At-

17torney General in a case arising under this chapter,18

represent the United States before the United States

19

Court of Appeals for the District of Columbia Cir-

20

cuit or the Supreme Court.

21‘‘(c) REPRESENTATION OF ACCUSED.—The accused

22 shall be represented by appellate counsel appointed under
23 subsection (a) before the Court of Military Commission
24 Review, the United States Court of Appeals for the Dis25 trict of Columbia Circuit, and the Supreme Court, and by•HR 6166 EH

59
1 civilian counsel if retained by the accused. Any such civil2 ian counsel shall meet the qualifications under paragraph
3 (3) of section 949c(b) of this title for civilian counsel ap4 pearing before military commissions under this chapter
5 and shall be subject to the requirements of paragraph (4)6 of that section.
7 ‘‘§ 950i. Execution of sentence; procedures for execu8
9tion of sentence of death‘‘(a) IN GENERAL.—The Secretary of Defense is au-

10 thorized to carry out a sentence imposed by a military
11 commission under this chapter in accordance with such
12 procedures as the Secretary may prescribe.
13‘‘(b) EXECUTION OF SENTENCE OF DEATH ONLY

14 UPON APPROVAL BY THE PRESIDENT.—If the sentence
15 of a military commission under this chapter extends to
16 death, that part of the sentence providing for death may
17 not be executed until approved by the President. In such
18 a case, the President may commute, remit, or suspend the
19 sentence, or any part thereof, as he sees fit.
20‘‘(c) EXECUTION OF SENTENCE OF DEATH ONLY

21 UPON FINAL JUDGMENT
22

OF

LEGALITYOFPRO-

CEEDINGS.—(1) If the sentence of a military commission

23 under this chapter extends to death, the sentence may not
24 be executed until there is a final judgment as to the legal-•HR 6166 EH

60
1 ity of the proceedings (and with respect to death, approval
2 under subsection (b)).
3‘‘(2) A judgment as to legality of proceedings is final

4 for purposes of paragraph (1) when—5‘‘(A) the time for the accused to file a petition

6

for review by the Court of Appeals for the District7of Columbia Circuit has expired and the accused has

8

not filed a timely petition for such review and the9case is not otherwise under review by that Court; or

10‘‘(B) review is completed in accordance with the11

judgment of the United States Court of Appeals for12

the District of Columbia Circuit and—1314‘‘(i) a petition for a writ of certiorari is nottimely filed;15
16‘‘(ii) such a petition is denied by the Supreme Court; or17‘‘(iii) review is otherwise completed in ac-

18

cordance with the judgment of the Supreme

19

Court.

20‘‘(d) SUSPENSION OF SENTENCE.—The Secretary of

21 the Defense, or the convening authority acting on the case
22 (if other than the Secretary), may suspend the execution
23 of any sentence or part thereof in the case, except a sen24 tence of death.

•HR 6166 EH

61
1 ‘‘§ 950j. Finality or proceedings, findings, and sen2
3

tences‘‘(a) FINALITY.—The appellate review of records of

4 trial provided by this chapter, and the proceedings, find5 ings, and sentences of military commissions as approved,
6 reviewed, or affirmed as required by this chapter, are final
7 and conclusive. Orders publishing the proceedings of mili8 tary commissions under this chapter are binding upon all
9 departments, courts, agencies, and officers of the United
10 States, except as otherwise provided by the President.
11‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS FOR RE-

12

VIEW OF MILITARY COMMISSION PROCEDURES AND AC-

13

TIONS.—Except as otherwise provided in this chapter and

14 notwithstanding any other provision of law (including sec15 tion 2241 of title 28 or any other habeas corpus provi16 sion), no court, justice, or judge shall have jurisdiction to
17 hear or consider any claim or cause of action whatsoever,
18 including any action pending on or filed after the date of
19 the enactment of the Military Commissions Act of 2006,
20 relating to the prosecution, trial, or judgment of a military
21 commission under this chapter, including challenges to the
22 lawfulness of procedures of military commissions under
23 this chapter.
24‘‘SUBCHAPTER VII—PUNITIVE MATTERS‘‘Sec.
‘‘950p. Statement of substantive offenses.
‘‘950q. Principals.
•HR 6166 EH

62‘‘950r. Accessory after the fact.
‘‘950s. Conviction of lesser included offense.
‘‘950t. Attempts.
‘‘950u. Solicitation.
‘‘950v. Crimes triable by military commissions.
‘‘950w. Perjury and obstruction of justice; contempt.

1 ‘‘§ 950p. Statement of substantive offenses
2‘‘(a) PURPOSE.—The provisions of this subchapter

3 codify offenses that have traditionally been triable by mili4 tary commissions. This chapter does not establish new
5 crimes that did not exist before its enactment, but rather
6 codifies those crimes for trial by military commission.
7‘‘(b) EFFECT.—Because the provisions of this sub-

8 chapter (including provisions that incorporate definitions
9 in other provisions of law) are declarative of existing law,
10 they do not preclude trial for crimes that occurred before
11 the date of the enactment of this chapter.
12 ‘‘§ 950q. Principals
13‘‘Any person is punishable as a principal under this

14 chapter who—
15‘‘(1) commits an offense punishable by this16

chapter, or aids, abets, counsels, commands, or pro-

17

cures its commission;

18‘‘(2) causes an act to be done which if directly

19

performed by him would be punishable by this chap-

20

ter; or21‘‘(3) is a superior commander who, with regard

22

to acts punishable under this chapter, knew, had•HR 6166 EH

631

reason to know, or should have known, that a subor-2

dinate was about to commit such acts or had done3

so and who failed to take the necessary and reason-

4able measures to prevent such acts or to punish the5perpetrators thereof.

6 ‘‘§ 950r. Accessory after the fact
7‘‘Any person subject to this chapter who, knowing

8 that an offense punishable by this chapter has been com9 mitted, receives, comforts, or assists the offender in order
10 to hinder or prevent his apprehension, trial, or punishment
11 shall be punished as a military commission under this
12 chapter may direct.
13 ‘‘§ 950s. Conviction of lesser included offense
14‘‘An accused may be found guilty of an offense nec-

15 essarily included in the offense charged or of an attempt
16 to commit either the offense charged or an attempt to
17 commit either the offense charged or an offense nec18 essarily included therein.
19 ‘‘§ 950t. Attempts
20‘‘(a) IN GENERAL.—Any person subject to this chap-

21 ter who attempts to commit any offense punishable by this
22 chapter shall be punished as a military commission under
23 this chapter may direct.
24‘‘(b) SCOPE OF OFFENSE.—An act, done with spe-

25 cific intent to commit an offense under this chapter,•HR 6166 EH

64
1 amounting to more than mere preparation and tending,
2 even though failing, to effect its commission, is an attempt
3 to commit that offense.
4‘‘(c) EFFECT OF CONSUMMATION.—Any person sub-5 ject to this chapter may be convicted of an attempt to com6 mit an offense although it appears on the trial that the
7 offense was consummated.
8 ‘‘§ 950u. Solicitation
9‘‘Any person subject to this chapter who solicits or

10 advises another or others to commit one or more sub11 stantive offenses triable by military commission under this
12 chapter shall, if the offense solicited or advised is at13 tempted or committed, be punished with the punishment
14 provided for the commission of the offense, but, if the of15 fense solicited or advised is not committed or attempted,
16 he shall be punished as a military commission under this17 chapter may direct.
18 ‘‘§ 950v. Crimes triable by military commissions
19‘‘(a) DEFINITIONS AND CONSTRUCTION.—In this sec-

20 tion:2122‘‘(1) MILITARY OBJECTIVE.—The term ‘military
objective’ means—

23‘‘(A) combatants; and24‘‘(B) those objects during an armed con-25

flict—•HR 6166 EH

651‘‘(i) which, by their nature, location,2

purpose, or use, effectively contribute to3

the opposing force’s war-fighting or war-4

sustaining capability; and5‘‘(ii) the total or partial destruction,

6

capture, or neutralization of which would

7

constitute a definite military advantage to8

the attacker under the circumstances at

9

the time of the attack.

10‘‘(2) PROTECTEDPERSON.—Theterm ‘pro-11

tected person’ means any person entitled to protec-

12tion under one or more of the Geneva Conventions,

13

including—1415‘‘(A) civilians not taking an active part inhostilities;

16‘‘(B) military personnel placed hors de17

combat by sickness, wounds, or detention; and18‘‘(C) military medical or religious per-19

sonnel.

20‘‘(3) PROTECTED PROPERTY.—The term ‘pro-21

tected property’ means property specifically pro-22

tected by the law of war (such as buildings dedicated23

to religion, education, art, science or charitable pur-24

poses, historic monuments, hospitals, or places25

where the sick and wounded are collected), if such

•HR 6166 EH

661property is not being used for military purposes or2

is not otherwise a military objective. Such term in-3

cludes objects properly identified by one of the dis-4

tinctive emblems of the Geneva Conventions, but

5does not include civilian property that is a military

6

objective.

7‘‘(4) CONSTRUCTION.—The intent specified for8

an offense under paragraph (1), (2), (3), (4), or

9(12) of subsection (b) precludes the applicability of

10such offense with regard to—11‘‘(A) collateral damage; or

12‘‘(B) death, damage, or injury incident to13
14

a lawful attack.
‘‘(b) OFFENSES.—The following offenses shall be tri-

15 able by military commission under this chapter at any
16 time without limitation:
17‘‘(1) MURDER OF PROTECTED PERSONS.—Any18

person subject to this chapter who intentionally kills

19

one or more protected persons shall be punished by20

death or such other punishment as a military com-21

mission under this chapter may direct.

22‘‘(2) ATTACKING CIVILIANS.—Any person sub-23

ject to this chapter who intentionally engages in an

24

attack upon a civilian population as such, or indi-

25

vidual civilians not taking active part in hostilities,•HR 6166 EH671shall be punished, if death results to one or more of2

the victims, by death or such other punishment as

3

a military commission under this chapter may direct,

4

and, if death does not result to any of the victims,

5by such punishment, other than death, as a military

6

commission under this chapter may direct.

7‘‘(3) ATTACKING CIVILIAN OBJECTS.—Any per-8

son subject to this chapter who intentionally engages

9in an attack upon a civilian object that is not a mili-

10tary objective shall be punished as a military com-11

mission under this chapter may direct.

12‘‘(4) ATTACKING PROTECTED PROPERTY.—Any

13

person subject to this chapter who intentionally en-

14

gages in an attack upon protected property shall be

15punished as a military commission under this chap-16

ter may direct.

17‘‘(5) PILLAGING.—Any person subject to this18

chapter who intentionally and in the absence of mili-

19

tary necessity appropriates or seizes property for20

private or personal use, without the consent of a21

person with authority to permit such appropriation22

or seizure, shall be punished as a military commis-

23

sion under this chapter may direct.

24‘‘(6) DENYING QUARTER.—Any person subject

25

to this chapter who, with effective command or con-

•HR 6166 EH

681trol over subordinate groups, declares, orders, or2otherwise indicates to those groups that there shall3

be no survivors or surrender accepted, with the in-4tent to threaten an adversary or to conduct hos-5tilities such that there would be no survivors or sur-6

render accepted, shall be punished as a military

7

commission under this chapter may direct.

8‘‘(7) TAKING HOSTAGES.—Any person subject

9

to this chapter who, having knowingly seized or de-10

tained one or more persons, threatens to kill, injure,11

or continue to detain such person or persons with12

the intent of compelling any nation, person other13

than the hostage, or group of persons to act or re-14

frain from acting as an explicit or implicit condition

15

for the safety or release of such person or persons,16

shall be punished, if death results to one or more of17

the victims, by death or such other punishment as18

a military commission under this chapter may direct,

19

and, if death does not result to any of the victims,

20

by such punishment, other than death, as a military

21

commission under this chapter may direct.

22‘‘(8) EMPLOYING POISON OR SIMILAR WEAP-

23

ONS.—Any person subject to this chapter who inten-

24

tionally, as a method of warfare, employs a sub-25

stance or weapon that releases a substance that•HR 6166 EH

691causes death or serious and lasting damage to health2in the ordinary course of events, through its asphyx-3iating, bacteriological, or toxic properties, shall be

4punished, if death results to one or more of the vic-

5

tims, by death or such other punishment as a mili-

6tary commission under this chapter may direct, and,7

if death does not result to any of the victims, by

8such punishment, other than death, as a military

9commission under this chapter may direct.

10

‘‘(9)

11

SHIELD.—Any12

positions, or otherwise takes advantage of, a pro-13

tected person with the intent to shield a military ob-

14jective from attack, or to shield, favor, or impede

15

military operations, shall be punished, if death re-16

sults to one or more of the victims, by death or such17

other punishment as a military commission under18

this chapter may direct, and, if death does not result

19

to any of the victims, by such punishment, other20

than death, as a military commission under this21

chapter may direct.

22‘‘(10) USINGUSING

PROTECTEDPERSONS

AS

A

person subject to this chapter who

PROTECTEDPROPERTY

AS

A

23

SHIELD.—Any24

positions, or otherwise takes advantage of the loca-

25tion of, protected property with the intent to shield•HR 6166 EH

person subject to this chapter who

701

a military objective from attack, or to shield, favor,

2

or impede military operations, shall be punished as3

a military commission under this chapter may direct.

4‘‘(11) TORTURE.—

5‘‘(A) OFFENSE.—Any person subject to6this chapter who commits an act specifically in-

7tended to inflict severe physical or mental pain

8

or suffering (other than pain or suffering inci-

9

dental to lawful sanctions) upon another person

10within his custody or physical control for the11

purpose of obtaining information or a confes-

12sion, punishment, intimidation, coercion, or any

13

reason based on discrimination of any kind,

14

shall be punished, if death results to one or15

more of the victims, by death or such other16

punishment as a military commission under this17

chapter may direct, and, if death does not re-18

sult to any of the victims, by such punishment,

19

other than death, as a military commission

20

under this chapter may direct.

21‘‘(B) SEVERE22

FERING DEFINED.—In

23‘severe mental pain or suffering’ has the mean-

24

ing given that term in section 2340(2) of title

25

18.

•HR 6166 EH

MENTAL

PAIN

OR

SUF-

this section, the term

71
1‘‘(12) CRUEL OR INHUMAN TREATMENT.—

2‘‘(A) OFFENSE.—Any person subject to3

this chapter who commits an act intended to in-4

flict severe or serious physical or mental pain or5

suffering (other than pain or suffering inci-

6

dental to lawful sanctions), including serious

7

physical abuse, upon another within his custody8

or control shall be punished, if death results to9

the victim, by death or such other punishment10

as a military commission under this chapter

11

may direct, and, if death does not result to the12

victim, by such punishment, other than death,13

as a military commission under this chapter

14

may direct.

15‘‘(B) DEFINITIONS.—In this paragraph:16‘‘(i) The term ‘serious physical pain

17

or suffering’ means bodily injury that in-18

volves—19‘‘(I) a substantial risk of death;20‘‘(II) extreme physical pain;

21‘‘(III) a burn or physical dis-22

figurement of a serious nature (other23

than cuts, abrasions, or bruises); or•HR 6166 EH

721‘‘(IV) significant loss or impair-2ment of the function of a bodily mem-3

ber, organ, or mental faculty.

4‘‘(ii) The term ‘severe mental pain or5

suffering’ has the meaning given that term

6in section 2340(2) of title 18.

7‘‘(iii) The term ‘serious mental pain

8

or suffering’ has the meaning given the9term ‘severe mental pain or suffering’ in

10

section 2340(2) of title 18, except that—

11‘‘(I) the term ‘serious’ shall re-12

place the term ‘severe’ where it ap-

13

pears; and14‘‘(II) as to conduct occurring

15

after the date of the enactment of the16

Military Commissions Act of 2006,17

the term ‘serious and non-transitory

18

mental harm (which need not be pro-19

longed)’ shall replace the term ‘pro-

20

longed mental harm’ where it appears.

21‘‘(13) INTENTIONALLY CAUSING SERIOUS BOD-

22

ILY INJURY.—

23‘‘(A) OFFENSE.—Any person subject to24this chapter who intentionally causes serious

25

bodily injury to one or more persons, including•HR 6166 EH

731

lawful combatants, in violation of the law of2

war shall be punished, if death results to one or3

more of the victims, by death or such other4

punishment as a military commission under this5chapter may direct, and, if death does not re-6

sult to any of the victims, by such punishment,

7other than death, as a military commission

8

under this chapter may direct.

9‘‘(B) SERIOUS BODILY INJURY DEFINED.—

10

In this paragraph, the term ‘serious bodily in-11jury’ means bodily injury which involves—

12‘‘(i) a substantial risk of death;13‘‘(ii) extreme physical pain;

14‘‘(iii) protracted and obvious dis-15

figurement; or16‘‘(iv) protracted loss or impairment of17

the function of a bodily member, organ, or18

mental faculty.

19‘‘(14) MUTILATING OR MAIMING.—Any person

20

subject to this chapter who intentionally injures one

21

or more protected persons by disfiguring the person

22or persons by any mutilation of the person or per-23

sons, or by permanently disabling any member, limb,

24

or organ of the body of the person or persons, with-25

out any legitimate medical or dental purpose, shall•HR 6166 EH

741

be punished, if death results to one or more of the2

victims, by death or such other punishment as a3

military commission under this chapter may direct,

4

and, if death does not result to any of the victims,

5by such punishment, other than death, as a military

6

commission under this chapter may direct.

7‘‘(15) MURDER IN VIOLATION OF THE LAW OF

8

WAR.—Any person subject to this chapter who inten-

9tionally kills one or more persons, including lawful

10combatants, in violation of the law of war shall be

11punished by death or such other punishment as a12

military commission under this chapter may direct.

13‘‘(16) DESTRUCTION OF PROPERTY IN VIOLA-

14

TION OF THE LAW OF WAR.—Any person subject to15

this chapter who intentionally destroys property be-

16

longing to another person in violation of the law of17

war shall punished as a military commission under18

this chapter may direct.

19‘‘(17) USING TREACHERY OR PERFIDY.—Any

20

person subject to this chapter who, after inviting the21

confidence or belief of one or more persons that they22

were entitled to, or obliged to accord, protection

23

under the law of war, intentionally makes use of24

that confidence or belief in killing, injuring, or cap-

25

turing such person or persons shall be punished, if•HR 6166 EH

75
1death results to one or more of the victims, by death2

or such other punishment as a military commission

3

under this chapter may direct, and, if death does not4result to any of the victims, by such punishment,

5other than death, as a military commission under

6

this chapter may direct.

7‘‘(18) IMPROPERLY USING A FLAG OF TRUCE.—

8

Any person subject to this chapter who uses a flag

9of truce to feign an intention to negotiate, sur-10

render, or otherwise suspend hostilities when there is11

no such intention shall be punished as a military

12

commission under this chapter may direct.

13‘‘(19) IMPROPERLY USING A DISTINCTIVE EM-

14

BLEM.—Any person subject to this chapter who in-

15

tentionally uses a distinctive emblem recognized by

16

the law of war for combatant purposes in a manner

17

prohibited by the law of war shall be punished as a18

military commission under this chapter may direct.

19‘‘(20) INTENTIONALLY MISTREATING A DEAD

20

BODY.—Any person subject to this chapter who in-

21

tentionally mistreats the body of a dead person,

22

without justification by legitimate military necessity,

23

shall be punished as a military commission under24

this chapter may direct.

•HR 6166 EH

761‘‘(21) RAPE.—Any person subject to this chap-2

ter who forcibly or with coercion or threat of force3

wrongfully invades the body of a person by pene-

4

trating, however slightly, the anal or genital opening

5of the victim with any part of the body of the ac-6

cused, or with any foreign object, shall be punished7

as a military commission under this chapter may di-

8

rect.

9

‘‘(22) SEXUAL ASSAULT OR ABUSE.—Any per-10

son subject to this chapter who forcibly or with coer-

11cion or threat of force engages in sexual contact

12with one or more persons, or causes one or more

13

persons to engage in sexual contact, shall be pun-14

ished as a military commission under this chapter

15

may direct.

16‘‘(23) HIJACKING OR HAZARDING A VESSEL OR

17

AIRCRAFT.—Any person subject to this chapter who

18intentionally seizes, exercises unauthorized control

19

over, or endangers the safe navigation of a vessel or20

aircraft that is not a legitimate military objective

21

shall be punished, if death results to one or more of22

the victims, by death or such other punishment as

23

a military commission under this chapter may direct,

24

and, if death does not result to any of the victims,•HR 6166 EH

771

by such punishment, other than death, as a military2commission under this chapter may direct.

3‘‘(24) TERRORISM.—Any person subject to this4

chapter who intentionally kills or inflicts great bodily

5harm on one or more protected persons, or inten-

6tionally engages in an act that evinces a wanton dis-7

regard for human life, in a manner calculated to in-8

fluence or affect the conduct of government or civil-

9

ian population by intimidation or coercion, or to re-10

taliate against government conduct, shall be pun-11

ished, if death results to one or more of the victims,

12by death or such other punishment as a military

13

commission under this chapter may direct, and, if

14

death does not result to any of the victims, by such

15

punishment, other than death, as a military commis-

16

sion under this chapter may direct.

17
18‘‘(25) PROVIDING

MATERIALSUPPORTFORTERRORISM.—

19‘‘(A) OFFENSE.—Any person subject to20

this chapter who provides material support or21

resources, knowing or intending that they are to22

be used in preparation for, or in carrying out,

23

an act of terrorism (as set forth in paragraph24(24)), or who intentionally provides material

25

support or resources to an international ter-

•HR 6166 EH

781rorist organization engaged in hostilities against

2

the United States, knowing that such organiza-

3

tion has engaged or engages in terrorism (as so

4

set forth), shall be punished as a military com-5

mission under this chapter may direct.

6‘‘(B) MATERIAL SUPPORT OR RESOURCES

7

DEFINED.—In this paragraph, the term ‘mate-

8

rial support or resources’ has the meaning

9

given that term in section 2339A(b) of title 18.

10‘‘(26) WRONGFULLY AIDING THE ENEMY.—Any11

person subject to this chapter who, in breach of an

12allegiance or duty to the United States, knowingly

13

and intentionally aids an enemy of the United

14

States, or one of the co-belligerents of the enemy,

15

shall be punished as a military commission under

16

this chapter may direct.

17‘‘(27) SPYING.—Any person subject to this18

chapter who with intent or reason to believe that it

19

is to be used to the injury of the United States or20

to the advantage of a foreign power, collects or at-

21

tempts to collect information by clandestine means

22or while acting under false pretenses, for the pur-23

pose of conveying such information to an enemy of24

the United States, or one of the co-belligerents of25

the enemy, shall be punished by death or such other•HR 6166 EH

791

punishment as a military commission under this2chapter may direct.

3‘‘(28) CONSPIRACY.—Any person subject to this4

chapter who conspires to commit one or more sub-5

stantive offenses triable by military commission

6

under this chapter, and who knowingly does any

7overt act to effect the object of the conspiracy, shall8

be punished, if death results to one or more of the9victims, by death or such other punishment as a10

military commission under this chapter may direct,

11

and, if death does not result to any of the victims,

12

by such punishment, other than death, as a military

13

commission under this chapter may direct.

14 ‘‘§ 950w. Perjury and obstruction of justice; contempt15‘‘(a) PERJURY AND OBSTRUCTION OF JUSTICE.—A

16 military commission under this chapter may try offenses
17 and impose such punishment as the military commission
18 may direct for perjury, false testimony, or obstruction of
19 justice related to military commissions under this chapter.
20‘‘(b) CONTEMPT.—A military commission under this

21 chapter may punish for contempt any person who uses any
22 menacing word, sign, or gesture in its presence, or who
23 disturbs its proceedings by any riot or disorder.’’.
24(2) TABLES OF CHAPTERS AMENDMENTS.—The25

tables of chapters at the beginning of subtitle A, and•HR 6166 EH

80
1

at the beginning of part II of subtitle A, of title 10,2

United States Code, are each amended by inserting

3

after the item relating to chapter 47 the following

4

new item:‘‘47A. Military Commissions ..................................................................... 948a.’’.

5(b) SUBMITTAL OF PROCEDURES TO CONGRESS.—

6 Not later than 90 days after the date of the enactment
7 of this Act, the Secretary of Defense shall submit to the
8 Committees on Armed Services of the Senate and the
9 House of Representatives a report setting forth the proce10 dures for military commissions prescribed under chapter
11 47A of title 10, United States Code (as added by sub12 section (a)).
13

SEC. 4. AMENDMENTS TO UNIFORM CODE OF MILITARY1415

JUSTICE.

(a) CONFORMING AMENDMENTS.—Chapter 47 of

16 title 10, United States Code (the Uniform Code of Military
17 Justice), is amended as follows:18(1) APPLICABILITY TO LAWFUL ENEMY COM-

19

BATANTS.—Section 802(a) (article 2(a)) is amended20

by adding at the end the following new paragraph:21‘‘(13) Lawful enemy combatants (as that term

22

is defined in section 948a(2) of this title) who vio-

23

late the law of war.’’.

24(2) EXCLUSION OF APPLICABILITY TO CHAPTER

25

47A COMMISSIONS.—Sections 821, 828, 848, 850(a),•HR 6166 EH

811904, and 906 (articles 21, 28, 48, 50(a), 104, and2106) are amended by adding at the end the fol-3

lowing new sentence: ‘‘This section does not apply to4

a military commission established under chapter

5

47A of this title.’’.

6(3) INAPPLICABILITY OF REQUIREMENTS RE-

7

LATING TO REGULATIONS.—Section 836 (article 36)8is amended—

9(A) in subsection (a), by inserting ‘‘, ex-

10cept as provided in chapter 47A of this title,’’11

after ‘‘but which may not’’; and

12(B) in subsection (b), by inserting before

13

the period at the end ‘‘, except insofar as appli-

14

cable to military commissions established under15

chapter 47A of this title’’.

16(b) PUNITIVE ARTICLE OF CONSPIRACY.—Section

17 881 of title 10, United States Code (article 81 of the Uni18 form Code of Military Justice), is amended—
19(1) by inserting ‘‘(a)’’ before ‘‘Any person’’; and20(2) by adding at the end the following new sub-21

section:22‘‘(b) Any person subject to this chapter who conspires

23 with any other person to commit an offense under the law
24 of war, and who knowingly does an overt act to effect the
25 object of the conspiracy, shall be punished, if death results•HR 6166 EH

82
1 to one or more of the victims, by death or such other pun2 ishment as a court-martial or military commission may di3 rect, and, if death does not result to any of the victims,
4 by such punishment, other than death, as a court-martial
5 or military commission may direct.’’.
6

SEC.

5.

TREATY

7
8

OBLIGATIONSNOTESTABLISHINGGROUNDS FOR CERTAIN CLAIMS.

(a) IN GENERAL.—No person may invoke the Geneva

9 Conventions or any protocols thereto in any habeas corpus
10 or other civil action or proceeding to which the United
11 States, or a current or former officer, employee, member
12 of the Armed Forces, or other agent of the United States
13 is a party as a source of rights in any court of the United
14 States or its States or territories.
15(b) GENEVA CONVENTIONS DEFINED.—In this sec-

16 tion, the term ‘‘Geneva Conventions’’ means—
17(1) the Convention for the Amelioration of the18

Condition of the Wounded and Sick in Armed

19

Forces in the Field, done at Geneva August 12,201949 (6 UST 3114);

21(2) the Convention for the Amelioration of the22

Condition of the Wounded, Sick, and Shipwrecked

23

Members of the Armed Forces at Sea, done at Gene-

24

va August 12, 1949 (6 UST 3217);•HR 6166 EH

831(3) the Convention Relative to the Treatment of2

Prisoners of War, done at Geneva August 12, 1949

3

(6 UST 3316); and4(4) the Convention Relative to the Protection of5

Civilian Persons in Time of War, done at Geneva

6

August 12, 1949 (6 UST 3516).

7SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS.

8(a) IMPLEMENTATION OF TREATY OBLIGATIONS.—

9(1) IN GENERAL.—The acts enumerated in sub-10

section (d) of section 2441 of title 18, United States

11

Code, as added by subsection (b) of this section, and12

in subsection (c) of this section, constitute violations

13of common Article 3 of the Geneva Conventions pro-14

hibited by United States law.

15(2) PROHIBITION ON GRAVE BREACHES.—The16

provisions of section 2441 of title 18, United States

17

Code, as amended by this section, fully satisfy the18

obligation under Article 129 of the Third Geneva

19

Convention for the United States to provide effective

20

penal sanctions for grave breaches which are encom-

21

passed in common Article 3 in the context of an

22

armed conflict not of an international character. No

23

foreign or international source of law shall supply a24basis for a rule of decision in the courts of the•HR 6166 EH

841

United States in interpreting the prohibitions enu-

2

merated in subsection (d) of such section 2441.

3(3) INTERPRETATION BY THE PRESIDENT.—

4(A) As provided by the Constitution and by

5

this section, the President has the authority for6

the United States to interpret the meaning and7

application of the Geneva Conventions and to

8

promulgate higher standards and administrative

9

regulations for violations of treaty obligations

10

which are not grave breaches of the Geneva

11

Conventions.

12(B) The President shall issue interpreta-

13

tions described by subparagraph (A) by Execu-

14

tive Order published in the Federal Register.

15(C) Any Executive Order published under

16

this paragraph shall be authoritative (except as

17

to grave breaches of common Article 3) as a18

matter of United States law, in the same man-19

ner as other administrative regulations.

20(D) Nothing in this section shall be con-21

strued to affect the constitutional functions and22

responsibilities of Congress and the judicial

23

branch of the United States.

24(4) DEFINITIONS.—In this subsection:•HR 6166 EH

85
1
2

(A) GENEVACONVENTIONS.—The

term‘‘Geneva Conventions’’ means—3(i) the Convention for the Ameliora-

4tion of the Condition of the Wounded and5

Sick in Armed Forces in the Field, done at

6

Geneva August 12, 1949 (6 UST 3217);7(ii) the Convention for the Ameliora-

8tion of the Condition of the Wounded,

9

Sick, and Shipwrecked Members of the10

Armed Forces at Sea, done at Geneva Au-

11gust 12, 1949 (6 UST 3217);12(iii) the Convention Relative to the13

Treatment of Prisoners of War, done at

14

Geneva August 12, 1949 (6 UST 3316);

15

and

16

(iv) the Convention Relative to the17

Protection of Civilian Persons in Time of

18

War, done at Geneva August 12, 1949 (619

UST 3516).

20(B) THIRDGENEVA

CONVENTION.—The

21

term ‘‘Third Geneva Convention’’ means the22international convention referred to in subpara-

23

graph (A)(iii).

24(b) REVISION TO WAR CRIMES OFFENSE UNDER

25 FEDERAL CRIMINAL CODE.—•HR 6166 EH

86
1
2

(1) IN GENERAL.—Section 2441 of title 18,
United States Code, is amended—

3(A) in subsection (c), by striking para-

4graph (3) and inserting the following new para-

5graph (3):6‘‘(3) which constitutes a grave breach of com-7

mon Article 3 (as defined in subsection (d)) when

8committed in the context of and in association with

9

an armed conflict not of an international character;

10or’’; and

11
12
13
14

(B) by adding at the end the following new
subsection:‘‘(d) COMMON ARTICLE 3 VIOLATIONS.—‘‘(1) PROHIBITEDCONDUCT.—In

subsection

15(c)(3), the term ‘grave breach of common Article 3’16means any conduct (such conduct constituting a

17

grave breach of common Article 3 of the inter-18

national conventions done at Geneva August 12,

191949), as follows:

20‘‘(A) TORTURE.—The act of a person who

21

commits, or conspires or attempts to commit,

22

an act specifically intended to inflict severe

23

physical or mental pain or suffering (other than24

pain or suffering incidental to lawful sanctions)25

upon another person within his custody or•HR 6166 EH

871physical control for the purpose of obtaining in-2

formation or a confession, punishment, intimi-

3

dation, coercion, or any reason based on dis-4

crimination of any kind.

5‘‘(B) CRUEL OR INHUMAN TREATMENT.—

6

The act of a person who commits, or conspires

7

or attempts to commit, an act intended to in-8

flict severe or serious physical or mental pain or9

suffering (other than pain or suffering inci-

10

dental to lawful sanctions), including serious

11

physical abuse, upon another within his custody

12

or control.

13‘‘(C) PERFORMING

BIOLOGICAL

EXPERI-

14

MENTS.—The act of a person who subjects, or15

conspires or attempts to subject, one or more

16

persons within his custody or physical control to17biological experiments without a legitimate med-18

ical or dental purpose and in so doing endan-

19

gers the body or health of such person or per-

20

sons.

21

‘‘(D) MURDER.—The act of a person who

22intentionally kills, or conspires or attempts to23kill, or kills whether intentionally or uninten-

24

tionally in the course of committing any other25

offense under this subsection, one or more per-•HR 6166 EH

88
1sons taking no active part in the hostilities, in-2

cluding those placed out of combat by sickness,3

wounds, detention, or any other cause.

4‘‘(E) MUTILATION OR MAIMING.—The act

5of a person who intentionally injures, or con-6

spires or attempts to injure, or injures whether

7intentionally or unintentionally in the course of

8

committing any other offense under this sub-9

section, one or more persons taking no active

10part in the hostilities, including those placed

11

out of combat by sickness, wounds, detention,

12

or any other cause, by disfiguring the person or

13

persons by any mutilation thereof or by perma-

14

nently disabling any member, limb, or organ of15

his body, without any legitimate medical or den-

16

tal purpose.

17‘‘(F) INTENTIONALLYCAUSINGSERIOUS18

BODILY INJURY.—The act of a person who in-

19

tentionally causes, or conspires or attempts to20

cause, serious bodily injury to one or more per-21

sons, including lawful combatants, in violation

22of the law of war.

23‘‘(G) RAPE.—The act of a person who

24

forcibly or with coercion or threat of force

25

wrongfully invades, or conspires or attempts to•HR 6166 EH

891

invade, the body of a person by penetrating,2

however slightly, the anal or genital opening of3

the victim with any part of the body of the ac-4

cused, or with any foreign object.

5‘‘(H) SEXUAL ASSAULT OR ABUSE.—The6

act of a person who forcibly or with coercion or7

threat of force engages, or conspires or at-

8

tempts to engage, in sexual contact with one or9more persons, or causes, or conspires or at-

10

tempts to cause, one or more persons to engage

11

in sexual contact.

12‘‘(I) TAKINGHOSTAGES.—The

act of a13

person who, having knowingly seized or de-14

tained one or more persons, threatens to kill,15

injure, or continue to detain such person or per-16

sons with the intent of compelling any nation,

17

person other than the hostage, or group of per-18

sons to act or refrain from acting as an explicit

19

or implicit condition for the safety or release of

20such person or persons.

21‘‘(2) DEFINITIONS.—In the case of an offense

22

under subsection (a) by reason of subsection

23(c)(3)—

24‘‘(A) the term ‘severe mental pain or suf-

25

fering’ shall be applied for purposes of para-•HR 6166 EH

90
1graphs (1)(A) and (1)(B) in accordance with2

the meaning given that term in section 2340(2)3of this title;

4‘‘(B) the term ‘serious bodily injury’ shall5

be applied for purposes of paragraph (1)(F) in

6

accordance with the meaning given that term in

7

section 113(b)(2) of this title;

8‘‘(C) the term ‘sexual contact’ shall be ap-

9plied for purposes of paragraph (1)(G) in ac-

10

cordance with the meaning given that term in

11

section 2246(3) of this title;

12‘‘(D) the term ‘serious physical pain or13

suffering’ shall be applied for purposes of para-

14

graph (1)(B) as meaning bodily injury that in-

15

volves—16‘‘(i) a substantial risk of death;17‘‘(ii) extreme physical pain;

18‘‘(iii) a burn or physical disfigurement

19of a serious nature (other than cuts, abra-

20

sions, or bruises); or21‘‘(iv) significant loss or impairment of22

the function of a bodily member, organ, or23

mental faculty; and24‘‘(E) the term ‘serious mental pain or suf-

25

fering’ shall be applied for purposes of para-•HR 6166 EH

91
1graph (1)(B) in accordance with the meaning

2

given the term ‘severe mental pain or suffering’3(as defined in section 2340(2) of this title), ex-4cept that—5‘‘(i) the term ‘serious’ shall replace6

the term ‘severe’ where it appears; and7‘‘(ii) as to conduct occurring after the8date of the enactment of the Military Com-9

missions Act of 2006, the term ‘serious

10

and non-transitory mental harm (which

11

need not be prolonged)’ shall replace the12term ‘prolonged mental harm’ where it ap-

13

pears.

14‘‘(3) INAPPLICABILITY OF CERTAIN PROVISIONS

15

WITH RESPECT TO COLLATERAL DAMAGE OR INCI-

16

DENT OF LAWFUL ATTACK.—The intent specified for17

the conduct stated in subparagraphs (D), (E), and

18(F) or paragraph (1) precludes the applicability of

19

those subparagraphs to an offense under subsection

20(a) by reasons of subsection (c)(3) with respect to—21‘‘(A) collateral damage; or

22‘‘(B) death, damage, or injury incident to23

a lawful attack.

24‘‘(4) INAPPLICABILITY OF TAKING HOSTAGES

25

TO PRISONER EXCHANGE.—Paragraph•HR 6166 EH(1)(I) does92
1

not apply to an offense under subsection (a) by rea-2

son of subsection (c)(3) in the case of a prisoner ex-

3change during wartime.

4‘‘(5) DEFINITION OF GRAVE BREACHES.—The5

definitions in this subsection are intended only to de-6fine the grave breaches of common Article 3 and not7

the full scope of United States obligations under

8

that Article.’’.

9(2)

RETROACTIVE

APPLICABILITY.—The10amendments made by this subsection, except as

11

specified in subsection (d)(2)(E) of section 2441 of

12

title 18, United States Code, shall take effect as of13

November 26, 1997, as if enacted immediately after

14

the amendments made by section 583 of Public Law

15

105–118 (as amended by section 4002(e)(7) of Pub-

16

lic Law 107–273).

17(c) ADDITIONAL PROHIBITION ON CRUEL, INHUMAN,

18

OR DEGRADING TREATMENT OR PUNISHMENT.—

19(1) IN GENERAL.—No individual in the custody

20

or under the physical control of the United States

21

Government, regardless of nationality or physical lo-

22

cation, shall be subject to cruel, inhuman, or degrad-

23

ing treatment or punishment.

2425(2) CRUEL, INHUMAN, OR DEGRADING TREATMENT•HR 6166 EH

OR

PUNISHMENT

DEFINED.—In

this sub-93
1

section, the term ‘‘cruel, inhuman, or degrading2

treatment or punishment’’ means cruel, unusual,3

and inhumane treatment or punishment prohibited4by the Fifth, Eighth, and Fourteenth Amendments

5

to the Constitution of the United States, as defined6in the United States Reservations, Declarations and7

Understandings to the United Nations Convention

8

Against Torture and Other Forms of Cruel, Inhu-

9

man or Degrading Treatment or Punishment done

10

at New York, December 10, 1984.

11(3) COMPLIANCE.—The President shall take ac-

12tion to ensure compliance with this subsection, in-13

cluding through the establishment of administrative

14

rules and procedures.

15
16

SEC. 7. HABEAS CORPUS MATTERS.

(a) IN GENERAL.—Section 2241 of title 28, United

17 States Code, is amended by striking both the subsection
18 (e) added by section 1005(e)(1) of Public Law 109–148
19 (119 Stat. 2742) and the subsection (e) added by added
20 by section 1405(e)(1) of Public Law 109–163 (119 Stat.
21 3477) and inserting the following new subsection (e):22‘‘(e)(1) No court, justice, or judge shall have jurisdic-

23 tion to hear or consider an application for a writ of habeas
24 corpus filed by or on behalf of an alien detained by the
25 United States who has been determined by the United•HR 6166 EH

94
1 States to have been properly detained as an enemy com2 batant or is awaiting such determination.
3‘‘(2) Except as provided in paragraphs (2) and (3)4 of section 1005(e) of the Detainee Treatment Act of 2005
5 (10 U.S.C. 801 note), no court, justice, or judge shall have
6 jurisdiction to hear or consider any other action against
7 the United States or its agents relating to any aspect of
8 the detention, transfer, treatment, trial, or conditions of
9 confinement of an alien who is or was detained by the
10 United States and has been determined by the United
11 States to have been properly detained as an enemy com12 batant or is awaiting such determination.’’.
13(b) EFFECTIVE DATE.—The amendment made by

14 subsection (a) shall take effect on the date of the enact15 ment of this Act, and shall apply to all cases, without ex16 ception, pending on or after the date of the enactment of
17 this Act which relate to any aspect of the detention, trans18 fer, treatment, trial, or conditions of detention of an alien
19 detained by the United States since September 11, 2001.
20

SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005

21

RELATING

22

UNITED STATES GOVERNMENT PERSONNEL.

23

(a)

COUNSELTOAND

PROTECTIONOFCERTAIN

INVESTIGATIONS.—Section

24 1004(b) of the Detainee Treatment Act of 2005 (4225 U.S.C. 2000dd–1(b)) is amended—•HR 6166 EH

95
1
2

(1) by striking ‘‘may provide’’ and inserting‘‘shall provide’’;34(2) by inserting ‘‘or investigation’’ after ‘‘criminal prosecution’’; and5(3) by inserting ‘‘whether before United States

6

courts or agencies, foreign courts or agencies, or7international courts or agencies,’’ after ‘‘described in

8that subsection’’.

9(b) PROTECTION OF PERSONNEL.—Section 1004 of

10 the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd–
11 1) shall apply with respect to any criminal prosecution
12 that—
13
14
15
16
17
18
19

(1) relates to the detention and interrogation ofaliens described in such section;(2) is grounded in section 2441(c)(3) of title
18, United States Code; and(3) relates to actions occurring between September 11, 2001, and December 30, 2005.
SEC. 9. REVIEW OF JUDGMENTS OF MILITARY COMMIS-

20
21

SIONS.

Section 1005(e)(3) of the Detainee Treatment Act of

22 2005 (title X of Public Law 109–148; 119 Stat. 2740;
23 10 U.S.C. 801 note) is amended—24(1) in subparagraph (A), by striking ‘‘pursuant

25

to Military Commission Order No. 1. dated August•HR 6166 EH

961

31, 2005 (or any successor military order)’’ and in-2

serting ‘‘by a military commission under chapter

3

47A of title 10, United States Code’’;45(2) by striking subparagraph (B) and inserting
the following new subparagraph (B):

6‘‘(B) GRANT OF REVIEW.—Review under

7

this paragraph shall be as of right.’’;8(3) in subparagraph (C)—9(A) in clause (i)—10(i) by striking ‘‘pursuant to the mili-

11

tary order’’ and inserting ‘‘by a military

12

commission’’; and13(ii) by striking ‘‘at Guantanamo Bay,14

Cuba’’; and

15(B) in clause (ii), by striking ‘‘pursuant to16

such military order’’ and inserting ‘‘by the mili-

17

tary commission’’; and18(4) in subparagraph (D)(i), by striking ‘‘speci-

19

fied in the military order’’ and inserting ‘‘specified

20

for a military commission’’.

21

SEC. 10. DETENTION COVERED BY REVIEW OF DECISIONS

22

OF COMBATANT STATUS REVIEW TRIBUNALS

23

OF PROPRIETY OF DETENTION.

24

Section 1005(e)(2)(B)(i) of the Detainee Treatment

25 Act of 2005 (title X of Public Law 109–148; 119 Stat.

•HR 6166 EH

97
1 2742; 10 U.S.C. 801 note) is amended by striking ‘‘the2 Department of Defense at Guantanamo Bay, Cuba’’ and3 inserting ‘‘the United States’’.
Passed the House of Representatives September 27,
2006.
Attest:Clerk.

•HR 6166 EH

109TH CONGRESS
2D SESSION

H. R. 6166

AN ACT
To amend title 10, United States Code, to authorize trial by military commission for violations of
the law of war, and for other purposes.