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[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 576 Introduced in Senate (IS)]

110th CONGRESS
  1st Session
                                 S. 576

 To provide for the effective prosecution of terrorists and guarantee 
                          due process rights.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           February 13, 2007

   Mr. Dodd (for himself, Mr. Leahy, Mr. Feingold, and Mr. Menendez) 
introduced the following bill; which was read twice and referred to the 
                      Committee on Armed Services

_______________________________________________________________________

                                 A BILL

 
 To provide for the effective prosecution of terrorists and guarantee 
                          due process rights.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Restoring the Constitution Act of 
2007''.

SEC. 2. DEFINITION OF UNLAWFUL ENEMY COMBATANT.

    Paragraph (1) of section 948a of title 10, United States Code, is 
amended to read as follows:
            ``(1) Unlawful enemy combatant.--The term `unlawful enemy 
        combatant' means an individual who is not a lawful enemy 
        combatant and--
                    ``(A) who directly participates in hostilities in a 
                zone of active combat against the United States; or
                    ``(B) who--
                            ``(i) planned, authorized, committed, or 
                        intentionally aided the terrorist acts on the 
                        United States of September 11, 2001; or
                            ``(ii) intentionally harbored any 
                        individual described in clause (i).
        The term is used solely to designate individuals triable by 
        military commission under this chapter.''.

SEC. 3. CONSTRUCTION WITH GENEVA CONVENTIONS.

    Subsection (g) of section 948b of title 10, United States Code, is 
amended to read as follows:
    ``(g) Construction With Geneva Conventions.--To the extent that any 
provision of this chapter is determined to be inconsistent with the 
obligations of the United States under the Geneva Conventions, the 
Geneva Conventions shall prevail, and such provision shall be deemed to 
have no further force or effect.''.

SEC. 4. DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS BY COMBATANT 
              STATUS REVIEW TRIBUNAL NOT DISPOSITIVE FOR PURPOSES OF 
              JURISDICTION OF MILITARY COMMISSIONS.

    Section 948d of title 10, United States Code, is amended--
            (1) by striking subsection (c); and
            (2) by redesignating subsection (d) as subsection (c).

SEC. 5. TRIAL COUNSEL AND DEFENSE COUNSEL.

    (a) Repeal of Authority for Civilian Trial Counsel.--Subsection (b) 
of section 948k of title 10, United States Code, is amended to read as 
follows:
    ``(b) Military Trial Counsel.--Subject to subsection (e), trial 
counsel detailed for a military commission under this chapter must be a 
judge advocate (as that term is defined in section 801 of this title 
(article 1 of the Uniform Code of Military Justice)) who is--
            ``(1) a graduate of an accredited law school or is a member 
        of the bar of a Federal court or of the highest court of a 
        State; and
            ``(2) certified as competent to perform duties as trial 
        counsel before general courts-martial by the Judge Advocate 
        General of the armed force of which he is a member.''.
    (b) Authority for Civilian Defense Counsel.--Subsection (c) of such 
section is amended to read as follows:
    ``(c) Defense Counsel.--Subject to subsection (e), trial counsel 
detailed for a military commission under this chapter must be--
            ``(1) a judge advocate (as so defined) who is--
                    ``(A) a graduate of an accredited law school or is 
                a member of the bar of a Federal court or of the 
                highest court of a State; and
                    ``(B) certified as competent to perform duties as 
                trial counsel before general courts-martial by the 
                Judge Advocate General of the armed force of which he 
                is a member; or
            ``(2) a civilian who is--
                    ``(A) a member of the bar of a Federal court or of 
                the highest court of a State; and
                    ``(B) otherwise qualified to practice before the 
                military commission pursuant to regulations prescribed 
                by the Secretary of Defense.''.
    (c) Conforming Amendment.--Subsection (d)(1) of such section is 
amended by striking ``subsection (b)(1)'' and inserting ``subsection 
(b)''.

SEC. 6. EXCLUSION FROM TRIAL BY MILITARY COMMISSION OF STATEMENTS 
              OBTAINED BY COERCION.

    Section 948r of title 10, United States Code, is amended by 
striking subsections (c) and (d) and inserting the following new 
subsection (c):
    ``(c) Exclusion of Statements Obtained by Coercion.--A statement 
obtained by use of coercion shall not be admissible in a military 
commission under this chapter, except against a person accused of 
coercion as evidence that the statement was made.''.

SEC. 7. MODIFICATION OF AUTHORITIES ON RULES FOR MILITARY COMMISSIONS.

    (a) Rules Generally.--Subsection (a) of section 949a of title 10, 
United States Code, is amended to read as follows:
    ``(a) Procedures and Rules of Evidence.--(1) Pretrial, trial, and 
post-trial procedures, including elements and modes of proof, for cases 
triable by military commission under this chapter may be prescribed by 
the Secretary of Defense. Such procedures may not be contrary to or 
inconsistent with this chapter. Except as otherwise provided in this 
chapter or chapter 47 of this title, the procedures and rules of 
evidence applicable in trials by general courts-martial shall apply in 
trials by military commission under this chapter.
    ``(2) The Secretary of Defense may, in consultation with the 
Attorney General, make such exceptions in the applicability in trials 
by military commission under this chapter from the procedures and rules 
of evidence otherwise applicable in general courts-martial as may be 
required by the unique circumstances of the conduct of military or 
intelligence operations during hostilities. Such exceptions may not be 
contrary to or inconsistent with this chapter.''.
    (b) Exclusion of Evidence Seized Inside the United States Without 
Warrant.--Subsection (b)(2)(B) of such section is amended by inserting 
``seized outside the United States'' after ``Evidence''.
    (c) Discretion of Military Judge To Exclude Hearsay Evidence 
Determined To Be Unreliable or Lacking in Probative Value.--Subsection 
(b)(2)(E)(ii) of such section is amended by striking ``if the party 
opposing the admission of the evidence demonstrates that the evidence 
is unreliable or lacking in probative value'' and inserting ``if the 
military judge determines, upon motion by counsel, that the evidence is 
unreliable or lacking in probative value''.

SEC. 8. SELF-REPRESENTATION OF ACCUSED BEFORE MILITARY COMMISSIONS.

    Section 949c of title 10, United States Code, is amended by adding 
at the end the following new subsection:
    ``(c) Self-Representation by Accused.--(1) Notwithstanding any 
provision of subsection (b), the accused may represent himself in his 
defense before a military commission under this chapter.
    ``(2) The accused's representation of himself in his defense shall 
be governed by such rules as the Secretary of Defense shall prescribe. 
Such rules, and any rights, privileges, or limitations under such 
rules, shall be consistent with rules applicable to self-representation 
by an accused in a criminal trial under the laws of the United States 
and international law.
    ``(3) If the accused represents himself under this subsection, the 
accused--
            ``(A) shall be assisted in his defense by military defense 
        counsel detailed in accordance with subsection (b)(2); or
            ``(B) may be assisted in his defense by civilian defense 
        counsel meeting the requirements of subsection (b)(3), together 
        with military defense counsel so detailed.
    ``(4) Any civilian counsel assisting in the defense of an accused 
under this subsection shall comply with the provisions of subsection 
(b)(4).
    ``(5) Subsection (b)(7) shall not apply with respect to any defense 
counsel assisting in the defense of an accused under this subsection, 
except to the extent the accused is unable to carry out his defense.''.

SEC. 9. ENHANCEMENT OF AUTHORITIES ON DISCOVERY OF WITNESSES AND OTHER 
              EVIDENCE.

    (a) Discovery of Sources, Methods, and Activities Relating to 
Certain Government Actions.--Subsection (c) of section 949j of title 
10, United States Code, is amended--
            (1) in paragraph (2), by striking ``The military judge'' 
        and inserting ``Except as provided in paragraph (3), the 
        military judge''; and
            (2) by adding at the end the following new paragraph:
    ``(3) Notwithstanding any other provision of this chapter, the 
military judge may, upon motion of defense counsel and at the 
discretion of the military judge, order trial counsel to disclose to 
defense counsel the sources, methods, or activities (including 
classified sources, methods, or activities) by which the United States 
obtained any out of court statement the United States intends to 
introduce at trial if the military judge determines, after ex parte 
review, in camera review, or both, that evidence of such sources, 
methods, or activities, as the case may be, might reasonably tend to 
affect the weight given to the out of court statement by the members of 
the military commission. The military judge shall revoke such an order 
in the event the United States elects not introduce the out of court 
statement concerned at trial.''.
    (b) Discretion of Military Judge To Take Certain Actions if 
Substitute for Classified Exculpatory Evidence Is Insufficient To 
Protect Right of Defendant to Fair Trial.--Subsection (d)(1) of such 
section is amended by adding at the end the following: ``If the 
military judge determines that the substitute is not sufficient to 
protect the right of the defendant to a fair trial, the military judge 
may--
            ``(A) dismiss the charges in their entirety;
            ``(B) dismiss the charges or specifications or both to 
        which the information relates; or
            ``(C) take such other actions as may be required in the 
        interest of justice.''.

SEC. 10. REVIEW OF MILITARY COMMISSION DECISIONS BY UNITED STATES COURT 
              OF APPEALS FOR THE ARMED FORCES RATHER THAN COURT OF 
              MILITARY COMMISSION REVIEW.

    (a) Review.--
            (1) In general.--Section 950f of title 10, United States 
        Code, is amended to read as follows:
``Sec. 950f. Review by Court of Appeals for the Armed Forces
    ``The United States Court of Appeals for the Armed Forces, in 
accordance with procedures prescribed under regulations of the 
Secretary, shall review the record in each case that is referred to the 
Court by the convening authority under section 950c of this title with 
respect to any matter of law raised by the accused.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of subchapter VI of chapter 47A of such title is 
        amended by striking the item relating to section 950f and 
        inserting the following new item:

``950f. Review by Court of Appeals for the Armed Forces.''.
    (b) Conforming Amendments.--
            (1) In general.--Chapter 47A of title 10, United States 
        Code, is further amended as follows:
                    (A) In section 950c(a), by striking ``the Court of 
                Military Commission Review'' and inserting ``the United 
                States Court of Appeals for the Armed Forces''.
                    (B) In section 950d, by striking ``the Court of 
                Military Commission Review'' each place it appears and 
                inserting ``the United States Court of Appeals for the 
                Armed Forces''.
                    (C) In section 950g(a)(2), by striking ``the Court 
                of Military Commission Review'' each place it appears 
                and inserting ``the United States Court of Appeals for 
                the Armed Forces''.
                    (D) In section 950h, by striking ``the Court of 
                Military Commission Review'' each place it appears and 
                inserting ``the United States Court of Appeals for the 
                Armed Forces''.
            (2) Uniform code of military justice.--Section 867a(a) of 
        title 10, United States Code (article 67a(a) of the Uniform 
        Code of Military Justice), is amended by striking ``Decisions'' 
        and inserting ``Except as provided in sections 950d and 950g of 
        this title, decisions''.

SEC. 11. SCOPE OF REVIEW OF DETENTION-RELATED DECISIONS.

    (a) Scope of Review of United States Court of Appeals for the 
District of Columbia Circuit.--Section 950g of title 10, United States 
Code, is amended--
            (1) by striking subsection (c); and
            (2) by redesignating subsection (d) as subsection (c).
    (b) Scope of Authority for Review of Military Commission Procedures 
and Actions.--Subsection (b) of section 950j of such title is amended 
to read as follows:
    ``(b) Limited Review of Military Commission Procedures and 
Actions.--Except as otherwise provided in this chapter, section 2241 of 
title 28, and any other habeas corpus provision, no court, justice, or 
judge shall have jurisdiction to hear or consider any claim or cause of 
action whatsoever, including any action pending on or filed after 
October 17, 2006, relating to the prosecution, trial, or judgment of a 
military commission under this chapter, including challenges to the 
lawfulness of procedures of military commissions under this chapter.''.
    (c) Termination of Superseded Authority for Review of CSRTS.--
Section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 
note) is amended by striking paragraphs (2) through (4).

SEC. 12. REPEAL OF PROHIBITION ON TREATY OBLIGATIONS AS ESTABLISHING 
              GROUNDS FOR CERTAIN CLAIMS.

    Section 5 of the Military Commissions Act of 2006 (Public Law 109-
366; 120 Stat. 2631; 28 U.S.C. 2241 note) is repealed.

SEC. 13. IMPLEMENTATION OF TREATY OBLIGATIONS.

    (a) In General.--Section 6(a) of the Military Commissions Act of 
2006 (Public Law 109-366; 120 Stat. 2632; 18 U.S.C. 2441 note) is 
amended--
            (1) in paragraph (2)--
                    (A) in the first sentence, by inserting after 
                ``international character'' the following: ``and 
                preserve the capacity of the United States to prosecute 
                nationals of enemy powers for engaging in acts against 
                members of the United States Armed Forces and United 
                States citizens that have been prosecuted by the United 
                States as war crimes in the past''; and
                    (B) by striking the second sentence; and
            (2) in paragraph (3)--
                    (A) in subparagraph (A)--
                            (i) by striking ``the President has the 
                        authority for the United States to interpret 
                        the meaning and application of the Geneva 
                        Conventions and to promulgate'' and inserting 
                        ``the President has the authority, subject to 
                        congressional oversight and judicial review, to 
                        promulgate''; and
                            (ii) by striking ``higher standards and'';
                    (B) in subparagraph (B), by striking 
                ``interpretations'' and inserting ``rules''; and
                    (C) by amending subparagraph (D) to read as 
                follows:
                    ``(D) The President shall notify other parties to 
                the Geneva Conventions that the United States expects 
                members of the United States Armed Forces and other 
                United States citizens detained in a conflict not of an 
                international character to be treated in a manner 
                consistent with the standards described in subparagraph 
                (A) and embodied in section 2441 of title 18, United 
                States Code, as amended by subsection (b).''.
    (b) Modification of War Crimes Offenses.--
            (1) Inclusion of denial of trial rights among offenses.--
        Paragraph (1) of section 2441(d) of title 18, United States 
        Code, is amended by adding at the end the following new 
        subparagraph:
                    ``(J) Denial of trial rights.--The act of a person 
                who intentionally denies one or more persons the right 
                to be tried before a regularly constituted court 
                affording all the judicial guarantees which are 
                recognized as indispensable by civilized peoples as 
                prescribed by common Article 3.''.
            (2) Inclusion of imposition of cruel, inhuman, or degrading 
        treatment or punishment among offenses.--Such section is 
        further amended--
                    (A) in paragraph (1), by adding at the end the 
                following new subparagraph:
                    ``(K) Cruel, inhuman, or degrading treatment or 
                punishment.--The act of a person who subjects, or 
                conspires or attempts to subject, an individual in the 
                custody or under the physical control of the United 
                States Government, regardless of nationality or 
                physical location, to cruel, inhuman, or degrading 
                treatment or punishment.''; and
                    (B) in paragraph (2)--
                            (i) in subparagraph (D), by striking 
                        ``and'' at the end;
                            (ii) in subparagraph (E), by striking the 
                        period at the end and inserting ``; and''; and
                            (iii) by adding at the end the following 
                        new subparagraph:
                    ``(F) the term `cruel, inhuman, or degrading 
                treatment or punishment' shall be applied for purposes 
                of paragraph (1)(K) in accordance with the meaning 
                given that term in section 6(c)(2) of the Military 
                Commissions Act of 2006 (42 U.S.C. 2000dd-0).''.
            (3) Inclusion of certain other violations of common article 
        3 among offenses.--Paragraph (1) of such section is further 
        amended by adding at the end the following new subparagraph:
                    ``(L) Certain other violations of common article 
                3.--The act of a person not subject to chapter 47 of 
                title 10 (the Uniform Code of Military Justice) who 
                commits, or conspires or attempts to commit, an act not 
                otherwise enumerated under this paragraph that 
                constitutes a violation of common Article 3 and is an 
                act which, if committed by a person subject to chapter 
                47 of title 10, would be punishable under that chapter 
                by the penalty of death or confinement for one year or 
                more.''.
            (4) Additional definitional matters.--Paragraph (2) of such 
        section is further amended--
                    (A) in subparagraph (D)--
                            (i) by striking clause (ii) and inserting 
                        the following new clause (ii):
                            ``(ii) serious physical pain;''; and
                            (ii) in clause (iii), by striking ``(other 
                        than cuts, abrasions, or bruises)''; and
                    (B) in subparagraph (E)(ii), by striking ``and non-
                transitory''.

SEC. 14. RESTORATION OF HABEAS CORPUS FOR INDIVIDUALS DETAINED BY THE 
              UNITED STATES.

    (a) Restoration.--Subsection (e) of section 2241 of title 28, 
United States Code, is repealed.
    (b) Conforming Amendment.--Subsection (b) of section 7 of the 
Military Commissions Act of 2006 (Public Law 109-366; 120 Stat. 2636; 
28 U.S.C. 2441 note) is repealed.

SEC. 15. EXPEDITED JUDICIAL REVIEW OF MILITARY COMMISSIONS ACT OF 2006.

    Notwithstanding any other provision of law, the following rules 
shall apply to any civil action, including an action for declaratory 
judgment, that challenges any provision of the Military Commissions Act 
of 2006 (Public Law 109-366), or any amendment made by that Act, on the 
ground that such provision or amendment violates the Constitution or 
the laws of the United States:
            (1) The action shall be filed in the United States District 
        Court for the District of Columbia and shall be heard in that 
        Court by a court of three judges convened pursuant to section 
        2284 of title 28, United States Code.
            (2) An interlocutory or final judgment, decree, or order of 
        the United States District Court for the District of Columbia 
        in an action under paragraph (1) shall be reviewable as a 
        matter of right by direct appeal to the Supreme Court of the 
        United States. Any such appeal shall be taken by a notice of 
        appeal filed within 10 days after the date on which such 
        judgment, decree, or order is entered. The jurisdictional 
        statement with respect to any such appeal shall be filed within 
        30 days after the date on which such judgment, decree, or order 
        is entered.
            (3) It shall be the duty of the United States District 
        Court for the District of Columbia and the Supreme Court of the 
        United States to advance on the docket and to expedite to the 
        greatest possible extent the disposition of any action or 
        appeal, respectively, brought under this section.

SEC. 16. EFFECTIVE DATE.

    (a) In General.--Except as provided in subsection (b), the 
amendments made by this Act shall take effect on October 17, 2006, the 
date of the enactment of the Military Commissions Act of 2006 (Public 
Law 109-366), immediately after the enactment of that Act and shall 
apply to all cases, without exception, that are pending on or after 
such date.
    (b) Revisions to War Crimes Offenses.--The amendments made by 
section 13(b) shall take effect on the date of the enactment of this 
Act.
                                 <all>
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