I 

110TH CONGRESS 

1ST SESSION H. R. 1415 

To provide for the effective prosecution of terrorists and guarantee due 

process rights. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 8, 2007 

Mr. NADLER (for himself, Ms. HARMAN, Ms. SCHAKOWSKY, Ms. JACKSONLEE of Texas, Mr. ELLISON, Mr. FRANK of Massachusetts, and Ms. 

LEE) introduced the following bill; which was referred to the Committee 

on Armed Services, and in addition to the Committees on the Judiciary 

and Foreign Affairs, for a period to be subsequently determined by the 

Speaker, in each case for consideration of such provisions as fall within 

the jurisdiction of the committee concerned 

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’— 

3 ‘‘(A) means an individual who is not a law4 ful enemy combatant and— 

5 ‘‘(i) who directly participates in hos6 tilities in a zone of active combat against 

7 the United States; or 

8 ‘‘(ii) who— 

9 ‘‘(I) planned, authorized, com10 mitted, or aided with specific intent 

11 the terrorist acts on the United States 

12 of September 11, 2001; or 

13 ‘‘(II) harbored with specific in14 tent any individual described in clause 

15 (i); and 

16 ‘‘(B) may be used solely for the purpose of 

17 designating an individual as triable by military 

18 commission under this chapter.’’. 

19 SEC. 3. CONSTRUCTION IN RELATION TO GENEVA CONVEN20 TIONS. 

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

22 States Code, is amended to read as follows: 

23 ‘‘(g) CONSTRUCTION IN RELATION TO GENEVA CON24 VENTIONS.—To the extent that any provision of this chap25 ter is determined to be inconsistent with the obligations 


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1 of the United States under the Geneva Conventions, the 

2 Geneva Conventions shall prevail, and such provision shall 

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

4 SEC. 4. DETERMINATION OF UNLAWFUL ENEMY COMBAT5 ANT STATUS BY COMBATANT STATUS REVIEW 

6 TRIBUNAL NOT DISPOSITIVE FOR PURPOSES 

7 OF JURISDICTION OF MILITARY COMMIS8 SIONS. 

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

10 amended— 

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

12 (2) by redesignating subsection (d) as sub13 section (c). 

14 SEC. 5. TRIAL COUNSEL AND DEFENSE COUNSEL. 

15 (a) REPEAL OF AUTHORITY FOR CIVILIAN TRIAL

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

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

18 ‘‘(b) MILITARY TRIAL COUNSEL.—Subject to sub19 section (e), trial counsel detailed for a military commission 

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

21 is defined in section 801 of this title (article 1 of the Uni22 form Code of Military Justice)) who is— 

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

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

25 highest court of a State; and 


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

2 trial counsel before general courts-martial by the 

3 Judge Advocate General of the armed force of which 

4 he is a member.’’. 

5 (b) AUTHORITY FOR CIVILIAN DEFENSE COUN6 SEL.—Subsection (c) of such section is amended to read 

7 as follows: 

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

9 trial counsel detailed for a military commission under this 

10 chapter must be— 

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

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

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

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

15 ‘‘(B) certified as competent to perform du16 ties as trial counsel before general courts-mar17 tial by the Judge Advocate General of the 

18 armed force of which he is a member; or 

19 ‘‘(2) a civilian who is— 

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

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

22 ‘‘(B) otherwise qualified to practice before 

23 the military commission pursuant to regulations 

24 prescribed by the Secretary of Defense.’’. 


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1 (c) CONFORMING AMENDMENTS.—Such section is 

2 further amended— 

3 (1) in subsection (d)(1), by striking ‘‘subsection 

4 (b)(1)’’ and inserting ‘‘subsection (b)’’; 

5 (2) in subsection (a)— 

6 (A) in paragraph (1), by striking ‘‘Trial 

7 counsel and military defense counsel’’ and in8 serting ‘‘Military trial counsel and defense 

9 counsel’’; 

10 (B) in paragraph (3), by striking ‘‘Military 

11 defense’’ and inserting ‘‘Defense’’; and 

12 (C) in paragraph (4), by striking ‘‘trial 

13 counsel and military defense counsel’’ and in14 serting ‘‘military trial counsel and defense 

15 counsel’’; and 

16 (3) in subsection (e), by striking ‘‘trial counsel 

17 or military defense counsel’’ and inserting ‘‘military 

18 trial counsel or military defense counsel’’. 

19 SEC. 6. EXCLUSION FROM TRIAL BY MILITARY COMMIS20 SION OF STATEMENTS OBTAINED BY COER21 CION. 

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

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

24 the following new subsection (c): 


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1 ‘‘(c) EXCLUSION OF STATEMENTS OBTAINED BY CO2 ERCION.—A statement obtained by use of coercion shall 

3 not be admissible in a military commission under this 

4 chapter, except against a person accused of coercion as 

5 evidence that the statement was made.’’. 

6 SEC. 7. MODIFICATION OF AUTHORITIES ON RULES FOR 

7 MILITARY COMMISSIONS. 

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

9 949a of title 10, United States Code, is amended to read 

10 as follows: 

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

12 Pretrial, trial, and post-trial procedures, including ele13 ments and modes of proof, for cases triable by military 

14 commission under this chapter may be prescribed by the 

15 Secretary of Defense. Such procedures may not be con16 trary to or inconsistent with this chapter. Except as other17 wise provided in this chapter or chapter 47 of this title, 

18 the procedures and rules of evidence applicable in trials 

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

20 commission under this chapter. 

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

22 with the Attorney General, make such exceptions in the 

23 applicability in trials by military commission under this 

24 chapter from the procedures and rules of evidence other25 wise applicable in general courts-martial as may be reVerDate Aug 31 2005 19:10 Mar 10, 2007 Jkt 059200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1415.IH H1415

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1 quired by the unique circumstances of the conduct of mili2 tary or intelligence operations during hostilities. Such ex3 ceptions may not be contrary to or inconsistent with this 

4 chapter.’’. 

5 (b) EXCLUSION OF EVIDENCE SEIZED INSIDE THE

6 UNITED STATES WITHOUT WARRANT.—Subsection 

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

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

9 (c) DISCRETION OF MILITARY JUDGE TO EXCLUDE

10 HEARSAY EVIDENCE DETERMINED TO BE UNRELIABLE

11 OR LACKING IN PROBATIVE VALUE.—Subsection 

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

13 the party opposing the admission of the evidence dem14 onstrates that the evidence is unreliable or lacking in pro15 bative value’’ and inserting ‘‘if the military judge deter16 mines, upon motion by counsel, that the evidence is unreli17 able or lacking in probative value’’. 

18 SEC. 8. SELF-REPRESENTATION OF ACCUSED BEFORE MILI19 TARY COMMISSIONS. 

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

21 amended by adding at the end the following new sub22 section: 

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

24 Notwithstanding any provision of subsection (b), the acVerDate Aug 31 2005 19:10 Mar 10, 2007 Jkt 059200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1415.IH H1415

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1 cused may represent himself in his defense before a mili2 tary commission under this chapter. 

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

4 defense shall be governed by such rules as the Secretary 

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

6 privileges, or limitations under such rules, shall be con7 sistent with rules applicable to self-representation by an 

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

9 States and international law. 

10 ‘‘(3) If the accused represents himself under this sub11 section, the accused— 

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

13 defense counsel detailed in accordance with sub14 section (b)(2); or 

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

16 defense counsel meeting the requirements of sub17 section (b)(3), together with military defense counsel 

18 so detailed. 

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

20 an accused under this subsection shall comply with the 

21 provisions of subsection (b)(4). 

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

23 to any defense counsel assisting in the defense of an ac24 cused under this subsection, except to the extent the ac25 cused is unable to carry out his defense.’’. 


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1 SEC. 9. ENHANCEMENT OF AUTHORITIES ON DISCOVERY 

2 OF WITNESSES AND OTHER EVIDENCE. 

3 Subsection (d)(1) of such section is amended by add4 ing at the end the following: ‘‘If the military judge deter5 mines that the substitute is not sufficient to protect the 

6 right of the defendant to a fair trial, the military judge 

7 may— 

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

9 ‘‘(B) dismiss the charges or specifications 

10 or both to which the information relates; or 

11 ‘‘(C) take such other actions as may be re12 quired in the interest of justice.’’. 

13 SEC. 10. REVIEW OF MILITARY COMMISSION DECISIONS BY 

14 UNITED STATES COURT OF APPEALS FOR 

15 THE ARMED FORCES RATHER THAN COURT 

16 OF MILITARY COMMISSION REVIEW. 

17 (a) REVIEW.— 

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

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

20 ‘‘SEC. 950f. REVIEW BY COURT OF APPEALS FOR THE 

21 ARMED FORCES. 

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

23 Forces, in accordance with procedures prescribed in regu24 lations by the Secretary of Defense, shall review the record 

25 in each case that is referred to the Court by the convening 

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


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1 any matter of law, including whether any rational fact 

2 finder could have concluded that there was sufficient evi3 dence to establish guilt, raised by the accused.’’. 

4 (2) CLERICAL AMENDMENT.—The table of sec5 tions at the beginning of subchapter VI of chapter 

6 47A of such title is amended by striking the item re7 lating to section 950f and inserting the following 

8 new item: 

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

9 (b) CONFORMING AMENDMENTS.— 

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

11 United States Code, is further amended as follows: 

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

13 Court of Military Commission Review’’ and in14 serting ‘‘the United States Court of Appeals for 

15 the Armed Forces’’. 

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

17 Court of Military Commission Review’’ each 

18 place it appears and inserting ‘‘the United 

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

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

21 Court of Military Commission Review’’ each 

22 place it appears and inserting ‘‘the United 

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

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

25 Court of Military Commission Review’’ each 


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1 place it appears and inserting ‘‘the United 

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

3 (2) UNIFORM CODE OF MILITARY JUSTICE.— 

4 Section 867a(a) of title 10, United States Code (ar5 ticle 67a(a) of the Uniform Code of Military Jus6 tice), is amended by striking ‘‘Decisions’’ and insert7 ing ‘‘Except as provided in sections 950d and 950g 

8 of this title, decisions’’. 

9 SEC. 11. SCOPE OF REVIEW OF DETENTION-RELATED DECI10 SIONS. 

11 (a) SCOPE OF REVIEW OF UNITED STATES COURT

12 OF APPEALS FOR THE DISTRICT OF COLUMBIA CIR13 CUIT.—Section 950g of title 10, United States Code, is 

14 amended— 

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

16 (2) by redesignating subsection (d) as sub17 section (c). 

18 (b) SCOPE OF AUTHORITY FOR REVIEW OF MILITARY

19 COMMISSION PROCEDURES AND ACTIONS.—Subsection 

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

21 follows: 

22 ‘‘(b) LIMITED REVIEW OF MILITARY COMMISSION

23 PROCEDURES AND ACTIONS.—Except as otherwise pro24 vided in this chapter, section 2241 of title 28, and any 

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


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1 shall have jurisdiction to hear or consider any claim or 

2 cause of action whatsoever, including any action pending 

3 on or filed after October 17, 2006, relating to the prosecu4 tion, trial, or judgment of a military commission under 

5 this chapter, including challenges to the lawfulness of pro6 cedures of military commissions under this chapter.’’. 

7 (c) TERMINATION OF SUPERSEDED AUTHORITY FOR

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

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

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

11 SEC. 12. REPEAL OF PROHIBITION ON TREATY OBLIGA12 TIONS AS ESTABLISHING GROUNDS FOR CER13 TAIN CLAIMS. 

14 The Military Commissions Act of 2006 (Public Law 

15 109–366) is amended by striking section 5. 

16 SEC. 13. IMPLEMENTATION OF TREATY OBLIGATIONS. 

17 (a) IN GENERAL.—Section 6(a) of the Military Com18 missions Act of 2006 (Public Law 109–366; 120 Stat. 

19 2632; 18 U.S.C. 2441 note) is amended— 

20 (1) in paragraph (2)— 

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

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

23 preserve the capacity of the United States to 

24 prosecute nationals of enemy powers for engag25 ing in acts against members of the United 


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1 States Armed Forces and United States citizens 

2 that have been prosecuted by the United States 

3 as war crimes in the past’’; and 

4 (B) by striking the second sentence; and 

5 (2) in paragraph (3)— 

6 (A) in subparagraph (A)— 

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

8 authority for the United States to interpret 

9 the meaning and application of the Geneva 

10 Conventions and to promulgate’’ and in11 serting ‘‘the President has the authority, 

12 subject to congressional oversight and judi13 cial review, to promulgate’’; and 

14 (ii) by striking ‘‘higher standards 

15 and’’; 

16 (B) in subparagraph (B), by striking ‘‘in17 terpretations’’ and inserting ‘‘rules’’; and 

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

19 as follows: 

20 ‘‘(D) The President shall notify other par21 ties to the Geneva Conventions that the United 

22 States expects members of the United States 

23 Armed Forces and other United States citizens 

24 detained in a conflict not of an international 

25 character to be treated in a manner consistent 


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1 with the standards described in subparagraph 

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

3 United States Code, as amended by subsection 

4 (b).’’. 

5 (b) MODIFICATION OF WAR CRIMES OFFENSES.— 

6 (1) INCLUSION OF DENIAL OF TRIAL RIGHTS

7 AMONG OFFENSES.—Paragraph (1) of section 

8 2441(d) of title 18, United States Code, is amended 

9 by adding at the end the following new subpara10 graph: 

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

12 of a person who intentionally denies one or 

13 more persons the right to be tried before a reg14 ularly constituted court affording all the judi15 cial guarantees which are recognized as indis16 pensable by civilized peoples as prescribed by 

17 common Article 3.’’. 

18 (2) INCLUSION OF IMPOSITION OF CRUEL, IN19 HUMAN, OR DEGRADING TREATMENT OR PUNISH20 MENT AMONG OFFENSES.—Such section is further 

21 amended— 

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

23 the following new subparagraph: 

24 ‘‘(K) CRUEL, INHUMAN, OR DEGRADING

25 TREATMENT OR PUNISHMENT.—The act of a 


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1 person who subjects, or conspires or attempts 

2 to subject, an individual in the custody or under 

3 the physical control of the United States Gov4 ernment, regardless of nationality or physical 

5 location, to cruel, inhuman, or degrading treat6 ment or punishment.’’; and 

7 (B) in paragraph (2)— 

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

9 ‘‘and’’ at the end; 

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

11 the period at the end and inserting ‘‘; 

12 and’’; and 

13 (iii) by adding at the end the fol14 lowing new subparagraph: 

15 ‘‘(F) the term ‘cruel, inhuman, or degrad16 ing treatment or punishment’ shall be applied 

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

18 with the meaning given that term in section 

19 6(c)(2) of the Military Commissions Act of 

20 2006 (42 U.S.C. 2000dd–0).’’. 

21 (3) INCLUSION OF CERTAIN OTHER VIOLATIONS

22 OF COMMON ARTICLE 3 AMONG OFFENSES.—Para23 graph (1) of such section is further amended by add24 ing at the end the following new subparagraph: 


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1 ‘‘(L) CERTAIN OTHER VIOLATIONS OF

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

3 subject to chapter 47 of title 10 (the Uniform 

4 Code of Military Justice) who commits, or con5 spires or attempts to commit, an act not other6 wise enumerated under this paragraph that 

7 constitutes a violation of common Article 3 and 

8 is an act which, if committed by a person sub9 ject to chapter 47 of title 10, would be punish10 able under that chapter by the penalty of death 

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

12 (4) ADDITIONAL DEFINITIONAL MATTERS.— 

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

14 (A) in subparagraph (D)— 

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

16 the following new clause (ii): 

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

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

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

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

21 ‘‘and non-transitory’’. 

22 SEC. 14. RESTORATION OF HABEAS CORPUS FOR INDIVID23 UALS DETAINED BY THE UNITED STATES. 

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

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


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1 (b) TITLE 10.—Section 950j of title 10, United 

2 States Code, is amended by striking subsection (b) and 

3 inserting the following: 

4 ‘‘(b) LIMITED REVIEW OF MILITARY COMMISSION

5 PROCEDURES AND ACTIONS.—Except as otherwise pro6 vided in this chapter or in section 2241 of title 28 or any 

7 other habeas corpus provision, and notwithstanding any 

8 other provision of law, no court, justice, or judge shall 

9 have jurisdiction to hear or consider any claim or cause 

10 of action whatsoever, including any action pending on or 

11 filed after the date of the enactment of the Military Com12 missions Act of 2006, relating to the prosecution, trial, 

13 or judgment of a military commission under this chapter, 

14 including challenges to the lawfulness of procedures of 

15 military commissions under this chapter.’’. 

16 SEC. 15. EXPEDITED JUDICIAL REVIEW OF MILITARY COM17 MISSIONS ACT OF 2006. 

18 Notwithstanding any other provision of law, the fol19 lowing rules shall apply to any civil action, including an 

20 action for declaratory judgment, that challenges any provi21 sion of the Military Commissions Act of 2006 (Public Law 

22 109–366), or any amendment made by that Act, on the 

23 ground that such provision or amendment violates the 

24 Constitution or the laws of the United States: 


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

2 States District Court for the District of Columbia 

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

4 judges convened pursuant to section 2284 of title 

5 28, United States Code. 

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

7 or order of the United States District Court for the 

8 District of Columbia in an action under paragraph 

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

10 appeal to the Supreme Court of the United States. 

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

12 filed within 10 days after the date on which such 

13 judgment, decree, or order is entered. The jurisdic14 tional statement with respect to any such appeal 

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

16 such judgment, decree, or order is entered. 

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

18 District Court for the District of Columbia and the 

19 Supreme Court of the United States to advance on 

20 the docket and to expedite to the greatest possible 

21 extent the disposition of any action or appeal, re22 spectively, brought under this section. 

23 SEC. 16. EFFECTIVE DATE. 

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

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


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

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

3 immediately after the enactment of that Act and shall 

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

5 or after such date. 

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

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

8 the date of the enactment of this Act. 

Æ 


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