I 

109TH CONGRESS 

1ST SESSION H. R. 3044 

To amend chapter 47 of title 10, United States Code (the Uniform Code 

of Military Justice), to provide standards for the use of military commissions for the trial of offenses under the law of war or in furtherance 

of international terrorism. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 23, 2005 

Ms. LORETTA SANCHEZ of California introduced the following bill; which was 

referred to the Committee on Armed Services 

A BILL 

To amend chapter 47 of title 10, United States Code (the 

Uniform Code of Military Justice), to provide standards 

for the use of military commissions for the trial of offenses under the law of war or in furtherance of international terrorism. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Military Commissions 

5 Act of 2005’’. 
2 

•HR 3044 IH 

1 SEC. 2. USE OF MILITARY COMMISSIONS FOR OFFENSES 

2 UNDER LAW OF WAR OR IN FURTHERANCE 

3 OF TERRORISM. 

4 (a) IN GENERAL.—Subchapter XI of chapter 47 of 

5 title 10, United States Code (the Uniform Code of Military 

6 Justice), is amended by inserting after section 935 (article 

7 135) the following new section: 

8 ‘‘§ 935a. Art. 135a. Military commissions for offenses 

9 against the law of war or in furtherance 

10 of terrorism 

11 ‘‘(a) A military commission covered by this section 

12 may be appointed only by the President or a person des13 ignated by the President for such purpose. 

14 ‘‘(b) A military commission appointed under sub15 section (a) may try any person, not a citizen of the United 

16 States, for one or more offenses against the law of war 

17 or any offense defined in United States law when such 

18 offense is committed in furtherance of international ter19 rorism as defined in section 2331 of title 18. 

20 ‘‘(c) A military commission shall consist of not less 

21 than three members and not more than seven members. 

22 However, in a case in which the accused may be sentenced 

23 to a penalty of death, the commission shall consist of seven 

24 members. The commission may also include not more than 

25 two alternate members. Each member and alternate mem26 ber shall be a commissioned officer of the armed forces. 
3 

•HR 3044 IH 

1 ‘‘(d) A military commission shall have a presiding of2 ficer, who shall be a nonvoting member of the commission. 

3 The presiding officer shall be a judge advocate and shall 

4 preside over the proceedings of the commission to ensure 

5 a full, fair, and expeditious trial. The presiding officer 

6 shall instruct the members of the commission on all mat7 ters of law and procedure and shall rule upon all questions 

8 of law and all interlocutory questions arising during the 

9 proceedings. 

10 ‘‘(e) Trial and defense counsel shall be detailed for 

11 a military commission on the same basis as such counsel 

12 are detailed for a general court-martial under section 827 

13 (article 27). 

14 ‘‘(f) Members of a military commission shall delib15 erate and vote in closed conference. Voting on the findings 

16 and on the sentence shall be by secret written ballot. 

17 ‘‘(g) A military commission covered by this section 

18 may not find a person guilty of an offense, and may not 

19 determine a sentence, except by the concurrence of two20 thirds of the members present at the time the vote is 

21 taken. The commission may not sentence a person to suf22 fer death except by the concurrence of all the members 

23 as to the findings and as to the sentence. 

24 ‘‘(h) A military commission may, under such limita25 tions as the President may prescribe, adjudge any punish-
4

•HR 3044 IH 

1 ment permitted by the law of war, including death, impris2 onment for life or for any lesser term, payment of a fine 

3 or restitution, or such other lawful punishment or punish4 ments as the commission shall determine to be proper. The 

5 sentence of death may be adjudged only if the accused 

6 has been found guilty of spying or an offense causing the 

7 death of one or more persons. A commission may not sen8 tence any person to suffer death for an offense committed 

9 before the person attained the age of eighteen years. A 

10 sentence of death may not be executed until approved by 

11 the President. 

12 ‘‘(i) Pursuant to section 936 (article 36) of this chap13 ter, the President may prescribe rules of evidence and pro14 cedure for trial by a military commission. The President 

15 may further delegate authority to prescribe such rules to 

16 the Secretary of Defense. The accused in a military com17 mission shall be given the following minimum rights and 

18 protections: 

19 ‘‘(1) The accused shall have the right to a fair 

20 trial, without adverse distinction based upon race, 

21 color, gender, language, religion, birth, wealth, or 

22 any similar criteria. 

23 ‘‘(2) The accused shall be presumed innocent 

24 until proven guilty. The burden of proof shall be 
5 

•HR 3044 IH 

1 upon the prosecution to prove each element of an of2 fense beyond a reasonable doubt. 

3 ‘‘(3) The accused shall be informed of the 

4 charges against him in a language he understands 

5 as soon as practicable prior to trial. 

6 ‘‘(4) The accused shall have the right to a pub7 lic trial, unless the appointing authority or presiding 

8 officer determines that a closed trial, or any portion 

9 thereof, is necessary to the national security of the 

10 United States. 

11 ‘‘(5) The accused may not be compelled to tes12 tify or present evidence against himself. 

13 ‘‘(6) No adverse inference will be drawn against 

14 him by reason of a decision not to testify on his own 

15 behalf. 

16 ‘‘(7) Evidence obtained through the use of tor17 ture (as defined in section 2340 of title 18), will not 

18 be admitted in evidence at trial by a military com19 mission. 

20 ‘‘(8) The accused shall be entitled to assistance 

21 of counsel at all stages of proceedings and shall have 

22 adequate time and facilities available for the prepa23 ration of his defense. The accused shall have the 

24 right to represent himself in trail by military com-
6 

•HR 3044 IH 

1 mission, subject to the discretion of the presiding of2 ficer. 

3 ‘‘(9) The accused shall have the right to present 

4 evidence and to cross-examine each witness. 

5 ‘‘(10) The accused shall have equal opportunity 

6 to obtain witnesses and other evidence in accordance 

7 with such regulations as the President may pre8 scribe. 

9 ‘‘(11) The accused shall have access to all evi10 dence that trial counsel intends to offer at trial and 

11 all evidence known to trial counsel or to the commis12 sion that tends to exculpate him. 

13 ‘‘(12) The accused shall have the right to be 

14 present at each stage of the proceedings, unless he 

15 engages in conduct that the presiding officer deter16 mines to be disruptive, or the presiding officer deter17 mines that exclusion of the accused is necessary to 

18 protect national security interests of the United 

19 States. Detailed defense counsel may not be ex20 cluded from any trial proceeding or any portion 

21 thereof. 

22 ‘‘(13) The accused shall not be tried a second 

23 time for the same offense. 
7 

•HR 3044 IH 

1 ‘‘(j) A person found guilty by military commission 

2 shall have a right to review of that finding and any ad3 judged sentence in accordance with this section. 

4 ‘‘(k)(1) After trial, the presiding officer shall prompt5 ly authenticate a verbatim transcript and record of trial. 

6 ‘‘(2) The appointing authority shall, within a reason7 able period of time, carry out an administrative review of 

8 the transcript and record of trial and take such adminis9 trative actions as the appointing authority considers ap10 propriate, which may include directing the commission to 

11 conduct any necessary supplemental proceedings. 

12 ‘‘(3) The Secretary of Defense shall review the record 

13 of trial and, within a reasonable period of time, take one 

14 or more of the following actions of the case: 

15 ‘‘(A) Approve, disapprove, commute, mitigate, 

16 or suspend the sentence in whole or in part. 

17 ‘‘(B) Approve or disapprove a finding of guilty, 

18 or change a finding of guilty to a charge or speci19 fication to a finding of guilty to a lesser included of20 fense of the offense stated in the charge. 

21 ‘‘(4)(A) Following action by the Secretary of Defense, 

22 the Court of Appeals for the Armed Forces shall review 

23 the record of a military commission— 
8

•HR 3044 IH 

1 ‘‘(i) in any case in which the sentence extends 

2 to death or to confinement in excess of five years; 

3 and 

4 ‘‘(ii) in any other case that the President may 

5 prescribe. 

6 ‘‘(B) In any case reviewed by it under this subsection, 

7 the Court of Appeals for the Armed Forces may act only 

8 with respect to the findings and sentence as in effect after 

9 review by the convening authority and the Secretary of 

10 Defense under subsection (k)(3). 

11 ‘‘(C) The Court of Appeals for the Armed Forces 

12 shall take action only with respect to matters of law and 

13 shall take such action as is permitted under section 867 

14 (article 67) of this chapter. 

15 ‘‘(5) The Supreme Court of the United States shall 

16 have jurisdiction to review, by writ of certiorari, an action 

17 of the Court of Appeals for the Armed Forces under this 

18 subsection. 

19 ‘‘(l) The Secretary of Defense shall submit to Con20 gress each order, rule, and regulation prescribed under 

21 this section. Such order, rule, or regulation may not take 

22 effect until 30 days after it is so submitted. 

23 ‘‘(m) Not later than March 15 of each year, the Sec24 retary of Defense shall submit to Congress a report on 

25 the use of military commissions covered by this section 
9 

•HR 3044 IH 

1 during the preceding calendar year. The report shall set 

2 forth a summary of each case covered by this section dur3 ing such year, together with the disposition and current 

4 status of that case. The report shall also set forth a de5 tailed description of the activities of the Department with 

6 respect to military commissions, a copy of all current rules 

7 and regulations relating to the use of military commis8 sions, and an accounting of all funds expended on matters 

9 relating to the use of military commissions.’’. 

10 (b) CLERICAL AMENDMENT.—The table of sections 

11 at the beginning of such subchapter is amended by adding 

12 at the end the following new item: 

‘‘935a. Art. 135a. Military commissions for offenses against the law of war or 

in furtherance of terrorism.’’. 

Æ