II 

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. 

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 ‘‘Restoring the Con5 stitution Act of 2007’’. 

6 SEC. 2. DEFINITION OF UNLAWFUL ENEMY COMBATANT. 

7 Paragraph (1) of section 948a of title 10, United 

8 States Code, is amended to read as follows: 


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1 ‘‘(1) UNLAWFUL ENEMY COMBATANT.—The 

2 term ‘unlawful enemy combatant’ means an indi3 vidual who is not a lawful enemy combatant and— 

4 ‘‘(A) who directly participates in hostilities 

5 in a zone of active combat against the United 

6 States; or 

7 ‘‘(B) who— 

8 ‘‘(i) planned, authorized, committed, 

9 or intentionally aided the terrorist acts on 

10 the United States of September 11, 2001; 

11 or 

12 ‘‘(ii) intentionally harbored any indi13 vidual described in clause (i). 

14 The term is used solely to designate individuals tri15 able by military commission under this chapter.’’. 

16 SEC. 3. CONSTRUCTION WITH GENEVA CONVENTIONS. 

17 Subsection (g) of section 948b of title 10, United 

18 States Code, is amended to read as follows: 

19 ‘‘(g) CONSTRUCTION WITH GENEVA CONVEN20 TIONS.—To the extent that any provision of this chapter 

21 is determined to be inconsistent with the obligations of 

22 the United States under the Geneva Conventions, the Ge23 neva Conventions shall prevail, and such provision shall 

24 be deemed to have no further force or effect.’’. 


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1 SEC. 4. DETERMINATION OF UNLAWFUL ENEMY COMBAT2 ANT STATUS BY COMBATANT STATUS REVIEW 

3 TRIBUNAL NOT DISPOSITIVE FOR PURPOSES 

4 OF JURISDICTION OF MILITARY COMMIS5 SIONS. 

6 Section 948d of title 10, United States Code, is 

7 amended— 

8 (1) by striking subsection (c); and 

9 (2) by redesignating subsection (d) as sub10 section (c). 

11 SEC. 5. TRIAL COUNSEL AND DEFENSE COUNSEL. 

12 (a) REPEAL OF AUTHORITY FOR CIVILIAN TRIAL

13 COUNSEL.—Subsection (b) of section 948k of title 10, 

14 United States Code, is amended to read as follows: 

15 ‘‘(b) MILITARY TRIAL COUNSEL.—Subject to sub16 section (e), trial counsel detailed for a military commission 

17 under this chapter must be a judge advocate (as that term 

18 is defined in section 801 of this title (article 1 of the Uni19 form Code of Military Justice)) who is— 

20 ‘‘(1) a graduate of an accredited law school or 

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

22 highest court of a State; and 

23 ‘‘(2) certified as competent to perform duties as 

24 trial counsel before general courts-martial by the 

25 Judge Advocate General of the armed force of which 

26 he is a member.’’. 


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1 (b) AUTHORITY FOR CIVILIAN DEFENSE COUN2 SEL.—Subsection (c) of such section is amended to read 

3 as follows: 

4 ‘‘(c) DEFENSE COUNSEL.—Subject to subsection (e), 

5 trial counsel detailed for a military commission under this 

6 chapter must be— 

7 ‘‘(1) a judge advocate (as so defined) who is— 

8 ‘‘(A) a graduate of an accredited law 

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

10 court or of the highest court of a State; and 

11 ‘‘(B) certified as competent to perform du12 ties as trial counsel before general courts-mar13 tial by the Judge Advocate General of the 

14 armed force of which he is a member; or 

15 ‘‘(2) a civilian who is— 

16 ‘‘(A) a member of the bar of a Federal 

17 court or of the highest court of a State; and 

18 ‘‘(B) otherwise qualified to practice before 

19 the military commission pursuant to regulations 

20 prescribed by the Secretary of Defense.’’. 

21 (c) CONFORMING AMENDMENT.—Subsection (d)(1) 

22 of such section is amended by striking ‘‘subsection (b)(1)’’ 

23 and inserting ‘‘subsection (b)’’. 


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1 SEC. 6. EXCLUSION FROM TRIAL BY MILITARY COMMIS2 SION OF STATEMENTS OBTAINED BY COER3 CION. 

4 Section 948r of title 10, United States Code, is 

5 amended by striking subsections (c) and (d) and inserting 

6 the following new subsection (c): 

7 ‘‘(c) EXCLUSION OF STATEMENTS OBTAINED BY CO8 ERCION.—A statement obtained by use of coercion shall 

9 not be admissible in a military commission under this 

10 chapter, except against a person accused of coercion as 

11 evidence that the statement was made.’’. 

12 SEC. 7. MODIFICATION OF AUTHORITIES ON RULES FOR 

13 MILITARY COMMISSIONS. 

14 (a) RULES GENERALLY.—Subsection (a) of section 

15 949a of title 10, United States Code, is amended to read 

16 as follows: 

17 ‘‘(a) PROCEDURES AND RULES OF EVIDENCE.—(1) 

18 Pretrial, trial, and post-trial procedures, including ele19 ments and modes of proof, for cases triable by military 

20 commission under this chapter may be prescribed by the 

21 Secretary of Defense. Such procedures may not be con22 trary to or inconsistent with this chapter. Except as other23 wise provided in this chapter or chapter 47 of this title, 

24 the procedures and rules of evidence applicable in trials 

25 by general courts-martial shall apply in trials by military 

26 commission under this chapter. 


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1 ‘‘(2) The Secretary of Defense may, in consultation 

2 with the Attorney General, make such exceptions in the 

3 applicability in trials by military commission under this 

4 chapter from the procedures and rules of evidence other5 wise applicable in general courts-martial as may be re6 quired by the unique circumstances of the conduct of mili7 tary or intelligence operations during hostilities. Such ex8 ceptions may not be contrary to or inconsistent with this 

9 chapter.’’. 

10 (b) EXCLUSION OF EVIDENCE SEIZED INSIDE THE

11 UNITED STATES WITHOUT WARRANT.—Subsection 

12 (b)(2)(B) of such section is amended by inserting ‘‘seized 

13 outside the United States’’ after ‘‘Evidence’’. 

14 (c) DISCRETION OF MILITARY JUDGE TO EXCLUDE

15 HEARSAY EVIDENCE DETERMINED TO BE UNRELIABLE

16 OR LACKING IN PROBATIVE VALUE.—Subsection 

17 (b)(2)(E)(ii) of such section is amended by striking ‘‘if 

18 the party opposing the admission of the evidence dem19 onstrates that the evidence is unreliable or lacking in pro20 bative value’’ and inserting ‘‘if the military judge deter21 mines, upon motion by counsel, that the evidence is unreli22 able or lacking in probative value’’. 


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1 SEC. 8. SELF-REPRESENTATION OF ACCUSED BEFORE MILI2 TARY COMMISSIONS. 

3 Section 949c of title 10, United States Code, is 

4 amended by adding at the end the following new sub5 section: 

6 ‘‘(c) SELF-REPRESENTATION BY ACCUSED.—(1) 

7 Notwithstanding any provision of subsection (b), the ac8 cused may represent himself in his defense before a mili9 tary commission under this chapter. 

10 ‘‘(2) The accused’s representation of himself in his 

11 defense shall be governed by such rules as the Secretary 

12 of Defense shall prescribe. Such rules, and any rights, 

13 privileges, or limitations under such rules, shall be con14 sistent with rules applicable to self-representation by an 

15 accused in a criminal trial under the laws of the United 

16 States and international law. 

17 ‘‘(3) If the accused represents himself under this sub18 section, the accused— 

19 ‘‘(A) shall be assisted in his defense by military 

20 defense counsel detailed in accordance with sub21 section (b)(2); or 

22 ‘‘(B) may be assisted in his defense by civilian 

23 defense counsel meeting the requirements of sub24 section (b)(3), together with military defense counsel 

25 so detailed. 


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1 ‘‘(4) Any civilian counsel assisting in the defense of 

2 an accused under this subsection shall comply with the 

3 provisions of subsection (b)(4). 

4 ‘‘(5) Subsection (b)(7) shall not apply with respect 

5 to any defense counsel assisting in the defense of an ac6 cused under this subsection, except to the extent the ac7 cused is unable to carry out his defense.’’. 

8 SEC. 9. ENHANCEMENT OF AUTHORITIES ON DISCOVERY 

9 OF WITNESSES AND OTHER EVIDENCE. 

10 (a) DISCOVERY OF SOURCES, METHODS, AND AC11 TIVITIES RELATING TO CERTAIN GOVERNMENT AC12 TIONS.—Subsection (c) of section 949j of title 10, United 

13 States Code, is amended— 

14 (1) in paragraph (2), by striking ‘‘The military 

15 judge’’ and inserting ‘‘Except as provided in para16 graph (3), the military judge’’; and 

17 (2) by adding at the end the following new 

18 paragraph: 

19 ‘‘(3) Notwithstanding any other provision of this 

20 chapter, the military judge may, upon motion of defense 

21 counsel and at the discretion of the military judge, order 

22 trial counsel to disclose to defense counsel the sources, 

23 methods, or activities (including classified sources, meth24 ods, or activities) by which the United States obtained any 

25 out of court statement the United States intends to introVerDate Aug 31 2005 21:51 Feb 17, 2007 Jkt 049196 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S576.IS S576

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1 duce at trial if the military judge determines, after ex 

2 parte review, in camera review, or both, that evidence of 

3 such sources, methods, or activities, as the case may be, 

4 might reasonably tend to affect the weight given to the 

5 out of court statement by the members of the military 

6 commission. The military judge shall revoke such an order 

7 in the event the United States elects not introduce the 

8 out of court statement concerned at trial.’’. 

9 (b) DISCRETION OF MILITARY JUDGE TO TAKE CER10 TAIN ACTIONS IF SUBSTITUTE FOR CLASSIFIED EXCUL11 PATORY EVIDENCE IS INSUFFICIENT TO PROTECT RIGHT

12 OF DEFENDANT TO FAIR TRIAL.—Subsection (d)(1) of 

13 such section is amended by adding at the end the fol14 lowing: ‘‘If the military judge determines that the sub15 stitute is not sufficient to protect the right of the defend16 ant to a fair trial, the military judge may— 

17 ‘‘(A) dismiss the charges in their entirety; 

18 ‘‘(B) dismiss the charges or specifications or 

19 both to which the information relates; or 

20 ‘‘(C) take such other actions as may be re21 quired in the interest of justice.’’. 


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1 SEC. 10. REVIEW OF MILITARY COMMISSION DECISIONS BY 

2 UNITED STATES COURT OF APPEALS FOR 

3 THE ARMED FORCES RATHER THAN COURT 

4 OF MILITARY COMMISSION REVIEW. 

5 (a) REVIEW.— 

6 (1) IN GENERAL.—Section 950f of title 10, 

7 United States Code, is amended to read as follows: 

8 ‘‘§ 950f. Review by Court of Appeals for the Armed 

9 Forces 

10 ‘‘The United States Court of Appeals for the Armed 

11 Forces, in accordance with procedures prescribed under 

12 regulations of the Secretary, shall review the record in 

13 each case that is referred to the Court by the convening 

14 authority under section 950c of this title with respect to 

15 any matter of law raised by the accused.’’. 

16 (2) CLERICAL AMENDMENT.—The table of sec17 tions at the beginning of subchapter VI of chapter 

18 47A of such title is amended by striking the item re19 lating to section 950f and inserting the following 

20 new item: 

‘‘950f. Review by Court of Appeals for the Armed Forces.’’. 

21 (b) CONFORMING AMENDMENTS.— 

22 (1) IN GENERAL.—Chapter 47A of title 10, 

23 United States Code, is further amended as follows: 

24 (A) In section 950c(a), by striking ‘‘the 

25 Court of Military Commission Review’’ and inVerDate Aug 31 2005 21:51 Feb 17, 2007 Jkt 049196 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S576.IS S576

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1 serting ‘‘the United States Court of Appeals for 

2 the Armed Forces’’. 

3 (B) In section 950d, by striking ‘‘the 

4 Court of Military Commission Review’’ each 

5 place it appears and inserting ‘‘the United 

6 States Court of Appeals for the Armed Forces’’. 

7 (C) In section 950g(a)(2), by striking ‘‘the 

8 Court of Military Commission Review’’ each 

9 place it appears and inserting ‘‘the United 

10 States Court of Appeals for the Armed Forces’’. 

11 (D) In section 950h, by striking ‘‘the 

12 Court of Military Commission Review’’ each 

13 place it appears and inserting ‘‘the United 

14 States Court of Appeals for the Armed Forces’’. 

15 (2) UNIFORM CODE OF MILITARY JUSTICE.— 

16 Section 867a(a) of title 10, United States Code (ar17 ticle 67a(a) of the Uniform Code of Military Jus18 tice), is amended by striking ‘‘Decisions’’ and insert19 ing ‘‘Except as provided in sections 950d and 950g 

20 of this title, decisions’’. 

21 SEC. 11. SCOPE OF REVIEW OF DETENTION-RELATED DECI22 SIONS. 

23 (a) SCOPE OF REVIEW OF UNITED STATES COURT

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1 CUIT.—Section 950g of title 10, United States Code, is 

2 amended— 

3 (1) by striking subsection (c); and 

4 (2) by redesignating subsection (d) as sub5 section (c). 

6 (b) SCOPE OF AUTHORITY FOR REVIEW OF MILITARY

7 COMMISSION PROCEDURES AND ACTIONS.—Subsection 

8 (b) of section 950j of such title is amended to read as 

9 follows: 

10 ‘‘(b) LIMITED REVIEW OF MILITARY COMMISSION

11 PROCEDURES AND ACTIONS.—Except as otherwise pro12 vided in this chapter, section 2241 of title 28, and any 

13 other habeas corpus provision, no court, justice, or judge 

14 shall have jurisdiction to hear or consider any claim or 

15 cause of action whatsoever, including any action pending 

16 on or filed after October 17, 2006, relating to the prosecu17 tion, trial, or judgment of a military commission under 

18 this chapter, including challenges to the lawfulness of pro19 cedures of military commissions under this chapter.’’. 

20 (c) TERMINATION OF SUPERSEDED AUTHORITY FOR

21 REVIEW OF CSRTS.—Section 1005(e) of the Detainee 

22 Treatment Act of 2005 (10 U.S.C. 801 note) is amended 

23 by striking paragraphs (2) through (4). 


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1 SEC. 12. REPEAL OF PROHIBITION ON TREATY OBLIGA2 TIONS AS ESTABLISHING GROUNDS FOR CER3 TAIN CLAIMS. 

4 Section 5 of the Military Commissions Act of 2006 

5 (Public Law 109–366; 120 Stat. 2631; 28 U.S.C. 2241 

6 note) is repealed. 

7 SEC. 13. IMPLEMENTATION OF TREATY OBLIGATIONS. 

8 (a) IN GENERAL.—Section 6(a) of the Military Com9 missions Act of 2006 (Public Law 109–366; 120 Stat. 

10 2632; 18 U.S.C. 2441 note) is amended— 

11 (1) in paragraph (2)— 

12 (A) in the first sentence, by inserting after 

13 ‘‘international character’’ the following: ‘‘and 

14 preserve the capacity of the United States to 

15 prosecute nationals of enemy powers for engag16 ing in acts against members of the United 

17 States Armed Forces and United States citizens 

18 that have been prosecuted by the United States 

19 as war crimes in the past’’; and 

20 (B) by striking the second sentence; and 

21 (2) in paragraph (3)— 

22 (A) in subparagraph (A)— 

23 (i) by striking ‘‘the President has the 

24 authority for the United States to interpret 

25 the meaning and application of the Geneva 

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1 serting ‘‘the President has the authority, 

2 subject to congressional oversight and judi3 cial review, to promulgate’’; and 

4 (ii) by striking ‘‘higher standards 

5 and’’; 

6 (B) in subparagraph (B), by striking ‘‘in7 terpretations’’ and inserting ‘‘rules’’; and 

8 (C) by amending subparagraph (D) to read 

9 as follows: 

10 ‘‘(D) The President shall notify other par11 ties to the Geneva Conventions that the United 

12 States expects members of the United States 

13 Armed Forces and other United States citizens 

14 detained in a conflict not of an international 

15 character to be treated in a manner consistent 

16 with the standards described in subparagraph 

17 (A) and embodied in section 2441 of title 18, 

18 United States Code, as amended by subsection 

19 (b).’’. 

20 (b) MODIFICATION OF WAR CRIMES OFFENSES.— 

21 (1) INCLUSION OF DENIAL OF TRIAL RIGHTS

22 AMONG OFFENSES.—Paragraph (1) of section 

23 2441(d) of title 18, United States Code, is amended 

24 by adding at the end the following new subpara25 graph: 


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1 ‘‘(J) DENIAL OF TRIAL RIGHTS.—The act 

2 of a person who intentionally denies one or 

3 more persons the right to be tried before a reg4 ularly constituted court affording all the judi5 cial guarantees which are recognized as indis6 pensable by civilized peoples as prescribed by 

7 common Article 3.’’. 

8 (2) INCLUSION OF IMPOSITION OF CRUEL, IN9 HUMAN, OR DEGRADING TREATMENT OR PUNISH10 MENT AMONG OFFENSES.—Such section is further 

11 amended— 

12 (A) in paragraph (1), by adding at the end 

13 the following new subparagraph: 

14 ‘‘(K) CRUEL, INHUMAN, OR DEGRADING

15 TREATMENT OR PUNISHMENT.—The act of a 

16 person who subjects, or conspires or attempts 

17 to subject, an individual in the custody or under 

18 the physical control of the United States Gov19 ernment, regardless of nationality or physical 

20 location, to cruel, inhuman, or degrading treat21 ment or punishment.’’; and 

22 (B) in paragraph (2)— 

23 (i) in subparagraph (D), by striking 

24 ‘‘and’’ at the end; 


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1 (ii) in subparagraph (E), by striking 

2 the period at the end and inserting ‘‘; 

3 and’’; and 

4 (iii) by adding at the end the fol5 lowing new subparagraph: 

6 ‘‘(F) the term ‘cruel, inhuman, or degrad7 ing treatment or punishment’ shall be applied 

8 for purposes of paragraph (1)(K) in accordance 

9 with the meaning given that term in section 

10 6(c)(2) of the Military Commissions Act of 

11 2006 (42 U.S.C. 2000dd–0).’’. 

12 (3) INCLUSION OF CERTAIN OTHER VIOLATIONS

13 OF COMMON ARTICLE 3 AMONG OFFENSES.—Para14 graph (1) of such section is further amended by add15 ing at the end the following new subparagraph: 

16 ‘‘(L) CERTAIN OTHER VIOLATIONS OF

17 COMMON ARTICLE 3.—The act of a person not 

18 subject to chapter 47 of title 10 (the Uniform 

19 Code of Military Justice) who commits, or con20 spires or attempts to commit, an act not other21 wise enumerated under this paragraph that 

22 constitutes a violation of common Article 3 and 

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1 able under that chapter by the penalty of death 

2 or confinement for one year or more.’’. 

3 (4) ADDITIONAL DEFINITIONAL MATTERS.— 

4 Paragraph (2) of such section is further amended— 

5 (A) in subparagraph (D)— 

6 (i) by striking clause (ii) and inserting 

7 the following new clause (ii): 

8 ‘‘(ii) serious physical pain;’’; and 

9 (ii) in clause (iii), by striking ‘‘(other 

10 than cuts, abrasions, or bruises)’’; and 

11 (B) in subparagraph (E)(ii), by striking 

12 ‘‘and non-transitory’’. 

13 SEC. 14. RESTORATION OF HABEAS CORPUS FOR INDIVID14 UALS DETAINED BY THE UNITED STATES. 

15 (a) RESTORATION.—Subsection (e) of section 2241 

16 of title 28, United States Code, is repealed. 

17 (b) CONFORMING AMENDMENT.—Subsection (b) of 

18 section 7 of the Military Commissions Act of 2006 (Public 

19 Law 109–366; 120 Stat. 2636; 28 U.S.C. 2441 note) is 

20 repealed. 

21 SEC. 15. EXPEDITED JUDICIAL REVIEW OF MILITARY COM22 MISSIONS ACT OF 2006. 

23 Notwithstanding any other provision of law, the fol24 lowing rules shall apply to any civil action, including an 

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1 sion of the Military Commissions Act of 2006 (Public Law 

2 109–366), or any amendment made by that Act, on the 

3 ground that such provision or amendment violates the 

4 Constitution or the laws of the United States: 

5 (1) The action shall be filed in the United 

6 States District Court for the District of Columbia 

7 and shall be heard in that Court by a court of three 

8 judges convened pursuant to section 2284 of title 

9 28, United States Code. 

10 (2) An interlocutory or final judgment, decree, 

11 or order of the United States District Court for the 

12 District of Columbia in an action under paragraph 

13 (1) shall be reviewable as a matter of right by direct 

14 appeal to the Supreme Court of the United States. 

15 Any such appeal shall be taken by a notice of appeal 

16 filed within 10 days after the date on which such 

17 judgment, decree, or order is entered. The jurisdic18 tional statement with respect to any such appeal 

19 shall be filed within 30 days after the date on which 

20 such judgment, decree, or order is entered. 

21 (3) It shall be the duty of the United States 

22 District Court for the District of Columbia and the 

23 Supreme Court of the United States to advance on 

24 the docket and to expedite to the greatest possible 


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1 extent the disposition of any action or appeal, re2 spectively, brought under this section. 

3 SEC. 16. EFFECTIVE DATE. 

4 (a) IN GENERAL.—Except as provided in subsection 

5 (b), the amendments made by this Act shall take effect 

6 on October 17, 2006, the date of the enactment of the 

7 Military Commissions Act of 2006 (Public Law 109–366), 

8 immediately after the enactment of that Act and shall 

9 apply to all cases, without exception, that are pending on 

10 or after such date. 

11 (b) REVISIONS TO WAR CRIMES OFFENSES.—The 

12 amendments made by section 13(b) shall take effect on 

13 the date of the enactment of this Act. 

Æ 


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