II 

109TH CONGRESS 

2D SESSION S. 3614 

To provide comprehensive procedures for the adjudication of cases involving 

unprivileged combatants. 

IN THE SENATE OF THE UNITED STATES 

JUNE 29, 2006 

Mr. SPECTER introduced the following bill; which was read twice and referred 

to the Committee on Armed Services 

A BILL 

To provide comprehensive procedures for the adjudication 

of cases involving unprivileged combatants. 

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; AUTHORITY; FINDINGS. 

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

5 ‘‘Unprivileged Combatant Act of 2006’’. 

6 (b) AUTHORITY.—The requirements, conditions, and 

7 restrictions established by this Act are made under the 

8 authority of Congress under clauses 1, 10, 11, 12, 13, 14, 

9 and 18 of article I, section 8 of the Constitution of the 

10 United States. 


ccoleman on PROD1PC71 with BILLS
2 

•S 3614 IS

1 (c) FINDINGS.—Congress finds the following: 

2 (1) Article I, section 8, of the Constitution pro3 vides that the Congress has the power to ‘‘constitute 

4 Tribunals inferior to the Supreme Court; . . . define 

5 and punish . . . Offenses against the Law of Nations; 

6 . . . make Rules concerning Captures on Land and 

7 Water; . . . make all Laws which shall be necessary 

8 and proper for carrying into Execution the foregoing 

9 Powers and all other Powers vested by this Constitu10 tion in the Government of the United States, or in 

11 any Department or Officer thereof’’. 

12 (2) The Supreme Court has repeatedly recog13 nized military tribunals, as stated in Madsen v. 

14 Kinsella 343 U.S. 341, 1952, ‘‘[s]ince our nation’s 

15 earliest days, such tribunals have been constitu16 tionally recognized agencies for meeting many ur17 gent governmental responsibilities related to 

18 war....They have taken many forms and borne many 

19 names. Neither their procedure nor their jurisdiction 

20 has been prescribed by statute. It has been adapted 

21 in each instance to the need that called it forth.’’ 

22 Madsen, citing In re Yamashita, 327 U.S. 1 (1946). 

23 (3) The President has inherent authority to 

24 convene military tribunals arising from his role as 

25 Commander and Chief of the Armed Forces under 


ccoleman on PROD1PC71 with BILLS
3 

•S 3614 IS

1 article II of the Constitution and from title 10 of the 

2 United States Code. Due to the extraordinary cir3 cumstances of the ongoing war on terrorism, it is 

4 appropriate for Congress to provide additional and 

5 explicit authorization of and procedures for military 

6 tribunals to adjudicate and punish offenses relating 

7 to the war on terrorism. 

8 (4) This Act is in direct response to the United 

9 State Supreme Court’s ruling in Rasul v. Bush. 

10 With the passage of this Act, the 109th Congress 

11 will have addressed the concerns of the Supreme 

12 Court’s Rasul majority, and therefore alien enemy 

13 combatants detained or prosecuted under this Act 

14 may not challenge their detentions in the Federal 

15 courts of the United States via the habeas or any 

16 other statute. 

17 SEC. 2. DEFINITIONS. 

18 As used in this Act, the following definitions apply: 

19 (1) CLASSIFICATION TRIBUNAL.—The term 

20 ‘‘classification tribunal’’ means any tribunal con21 ducted under section 9 or any related proceeding. 

22 (2) CLASSIFICATION TRIBUNAL BOARD.—The 

23 term ‘‘classification tribunal board’’ means a board 

24 established pursuant to section 9(d). 


ccoleman on PROD1PC71 with BILLS
4 

•S 3614 IS

1 (3) CLASSIFIED INFORMATION.—The term 

2 ‘‘classified information’’ has the meaning given that 

3 term in section 1(a) of the Classified Information 

4 Procedures Act (18 U.S.C. App.). 

5 (4) COMMISSION.—The term ‘‘commission’’ 

6 means a military commission established pursuant to 

7 section 3. 

8 (5) CRIMINAL PROSECUTION.—The term 

9 ‘‘criminal prosecution’’ means a prosecution for a 

10 violation of any criminal law, including subchapter X 

11 of chapter 47 of title 10, United States Code (the 

12 Uniform Code of Military Justice) or pursuant to 

13 the Department of Defenses Military Commission 

14 Instruction number two. 

15 (6) DETAINEE.—The term ‘‘detainee’’ means a 

16 person who is in the custody of the Department of 

17 Defense at Guantanamo Bay, Cuba, and who has 

18 not been charged with a criminal offense during that 

19 period. 

20 (7) INTERNATIONAL TERRORISM.—The term 

21 ‘‘international terrorism’’ has the meaning given 

22 that term in section 101 of the Foreign Intelligence 

23 Surveillance Act of 1978 (50 U.S.C. 1801). 


ccoleman on PROD1PC71 with BILLS
5 

•S 3614 IS

1 (8) JUDGE.—The term ‘‘judge’’ means a 

2 United States military judge designated by the Sec3 retary of Defense to hear cases under this Act. 

4 (9) PROTECTED INFORMATION.—The term 

5 ‘‘protected information’’ means information— 

6 (A) that is classified information; 

7 (B) protected by law or rule from unau8 thorized disclosure; 

9 (C) the disclosure of which may endanger 

10 the physical safety of participants in Commis11 sion proceedings, including prospective wit12 nesses; 

13 (D) concerning intelligence and law en14 forcement sources, methods, or activities; or 

15 (E) the disclosure of which would other16 wise jeopardize national security interests. 

17 (10) UNITED STATES PERSON.—The term 

18 ‘‘United States person’’ has the meaning given that 

19 term in section 101 of the Foreign Intelligence Sur20 veillance Act of 1978 (50 U.S.C. 1801). 

21 (11) UNPRIVILEGED COMBATANT.—The term 

22 ‘‘unprivileged combatant’’ means an individual— 

23 (A) who has been designated as an enemy 

24 combatant by a Combatant Status Review Tri25 bunal prior to the enactment of this Act; or 


ccoleman on PROD1PC71 with BILLS
6 

•S 3614 IS

1 (B) who a Field Tribunal conducted by the 

2 United States military as provided in this Act 

3 determines— 

4 (i) is not entitled to the protections 

5 set out in the Convention Relative to the 

6 Treatment of Prisoners of War, done at 

7 Geneva, August 12, 1948 (6 UST 3516) 

8 (referred to in this Act as the ‘‘Geneva 

9 Convention’’); and 

10 (ii) has— 

11 (I) knowingly assisted, conspired 

12 with, or solicited for a group or an in13 dividual hostile to the United States; 

14 (II) knowingly attempted to as15 sist others in taking up arms against 

16 the United States; 

17 (III) conspired with or solicited 

18 others to take up arms against the 

19 United States; or 

20 (IV) has taken up arms against, 

21 or intentionally assisted combat oper22 ations against, the United States. 

23 (12) APPROPRIATE COMMITTEES OF CON24 GRESS.—The term ‘‘appropriate committees of Con25 gress’’ means the Committee on the Judiciary and 


ccoleman on PROD1PC71 with BILLS
7 

•S 3614 IS

1 the Committee on Armed Services of the Senate and 

2 the Committee on the Judiciary and the Committee 

3 on Armed Services of the House of Representatives. 

4 SEC. 3. AUTHORIZING MILITARY COMMISSIONS. 

5 The President is authorized to establish military com6 missions for the trial of individuals for offenses as pro7 vided in this Act. 

8 SEC. 4. JURISDICTION. 

9 (a) UNPRIVILEGED COMBATANTS.—This Act estab10 lishes exclusive jurisdiction to hear any matter involving 

11 an unprivileged combatant who has been detained by the 

12 Department of Defense for not less than 180 consecutive 

13 days at Guantanamo Bay, Cuba. 

14 (b) OFFENSES.— 

15 (1) CRIMINAL PROSECUTIONS.—A commission 

16 shall have jurisdiction to hear any criminal prosecu17 tion involving international terrorism, including any 

18 offense under chapter 113B of title 18, United 

19 States Code. 

20 (2) OFFENSES AGAINST THE LAWS OF WAR.— 

21 A commission shall have exclusive jurisdiction over 

22 violations of the laws of war committed by 

23 unprivileged combatants. 

24 (3) OTHER OFFENSES.—A commission shall 

25 have jurisdiction over other offenses traditionally triVerDate Aug 31 2005 02:51 Jul 04, 2006 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3614.IS S3614

ccoleman on PROD1PC71 with BILLS
8 

•S 3614 IS

1 able by military commissions or pursuant to the De2 partment of Defense’s Military Commission Instruc3 tion Number Two. 

4 SEC. 5. APPELLATE JURISDICTION. 

5 (a) FINAL DECISIONS.—The United States Court of 

6 Military Appeals shall have exclusive jurisdiction of ap7 peals from all final decisions of a classification tribunal 

8 board or commission under this Act. 

9 (b) REVIEW BY SUPREME COURT.— 

10 (1) CERTIORARI.—The decisions of the United 

11 States Court of Military Appeals are subject to re12 view by the Supreme Court by writ of certiorari. 

13 (2) EXEMPTION FROM CERTAIN PETITION RE14 QUIREMENTS.—A person who files a petition for a 

15 writ of certiorari under paragraph (1) shall not be 

16 required to submit— 

17 (A) prepayment of any fees and costs or 

18 security therefor; or 

19 (B) the affidavit required by section 

20 1915(a) of title 28, United States Code. 

21 (c) CONFORMING AMENDMENTS.— 

22 (1) IN GENERAL.—Section 1005 of the De23 tainee Treatment Act of 2005 (10 U.S.C. 801 note) 

24 is amended— 


ccoleman on PROD1PC71 with BILLS
9 

•S 3614 IS

1 (A) in subsection (e), by striking para2 graphs (2) through (4); and 

3 (B) by striking subsection (h) and insert4 ing the following: 

5 ‘‘(h) EFFECTIVE DATE.—This section shall take ef6 fect on the date of enactment of this Act.’’. 

7 (2) HABEAS.—Section 2241(e) of title 28, 

8 United States Code, is amended— 

9 (A) in the matter preceding paragraph (1), 

10 by striking ‘‘section 1005 of the Detainee 

11 Treatment Act of 2005’’ and inserting ‘‘the 

12 Unprivileged Combatant Act of 2006’’; 

13 (B) by striking paragraph (2)(B) and in14 serting the following: 

15 ‘‘(B) has been determined by a classifica16 tion tribunal to meet the requirements of para17 graph (1) or (2) of section 9(a) of the 

18 Unprivileged Combatant Act of 2006.’’. 

19 SEC. 6. COMMISSION. 

20 (a) COMMISSION PERSONNEL.— 

21 (1) MEMBERS.— 

22 (A) APPOINTMENT.—The Secretary of De23 fense shall designate no less than 12 United 

24 States military judges to serve as members of 


ccoleman on PROD1PC71 with BILLS
10 

•S 3614 IS

1 a commission and to assume other duties as2 signed in this Act. 

3 (B) NUMBER OF MEMBERS.—Each com4 mission shall consist of at least 3 military offi5 cers, at least one of whom shall be a military 

6 judge. 

7 (C) ALTERNATE MEMBERS.—For each 

8 such commission, there shall also be 1 or 2 al9 ternate members. The alternate member or 

10 members shall attend all sessions of the com11 mission. In case of incapacity, resignation, or 

12 removal of any member, an alternate member 

13 shall take the place of that member. 

14 (D) QUALIFICATIONS.—Each member and 

15 alternate member of the commission shall be a 

16 military officer. 

17 (E) PRESIDING OFFICER.— 

18 (i) IN GENERAL.—From among the 

19 members of the commission, the Secretary 

20 of Defense shall designate a presiding offi21 cer who is a military judge to preside over 

22 the proceedings of that commission. 

23 (ii) DUTIES.—The duties of the pre24 siding officer shall be as follows: 


ccoleman on PROD1PC71 with BILLS
11 

•S 3614 IS

1 (I) The presiding officer shall 

2 admit or exclude evidence at trial in 

3 accordance with the rules of this Act. 

4 The presiding officer shall have au5 thority to close proceedings or por6 tions of proceedings in accordance 

7 with this Act or for any other reason 

8 necessary for the conduct of a full and 

9 fair trial. 

10 (II) The presiding officer shall 

11 ensure that the discipline, dignity, and 

12 decorum of the proceedings are main13 tained, shall exercise control over the 

14 proceedings to ensure proper imple15 mentation of the President’s Military 

16 Order and this Act, and shall have au17 thority to act upon any contempt or 

18 breach of commission rules and proce19 dures. Any attorney authorized to ap20 pear before a commission who is 

21 thereafter found not to satisfy the re22 quirements for eligibility or who fails 

23 to comply with laws, rules, regula24 tions, or other orders applicable to the 

25 commission proceedings or any other 


ccoleman on PROD1PC71 with BILLS
12 

•S 3614 IS

1 individual who violates such laws, 

2 rules, regulations, or orders may be 

3 disciplined as the presiding officer 

4 deems appropriate, including revoca5 tion of eligibility to appear before that 

6 commission. The Court may further 

7 revoke that attorney’s or any other 

8 person’s eligibility to appear before 

9 any other commission convened under 

10 this Act. 

11 (III) The presiding officer shall 

12 ensure the expeditious conduct of the 

13 trial. In no circumstance shall accom14 modation of counsel be allowed to 

15 delay proceedings unreasonably. 

16 (IV) The presiding officer may 

17 certify interlocutory questions to the 

18 Military Commission Review Panel for 

19 the Armed Forces as the presiding of20 ficer deems appropriate. 

21 (b) POWERS OF A COMMISSION.—A commission shall 

22 have the following powers: 

23 (1) To summon witnesses to the trial and to re24 quire their attendance and testimony and to put 

25 questions to them. 


ccoleman on PROD1PC71 with BILLS
13 

•S 3614 IS

1 (2) To require the production of documents and 

2 other evidentiary material. 

3 (3) To administer oaths to witnesses. 

4 (4) To appoint officers for the carrying out of 

5 any task designated by the commission, including 

6 the power to have evidence taken. 

7 SEC. 7. PERSONS IN CUSTODY. 

8 (a) IN GENERAL.—Not later than 60 days after the 

9 date of enactment of this Act, the Secretary of Defense 

10 shall develop— 

11 (1) a complete listing of all persons who— 

12 (A) are being detained by the Department 

13 of Defense at Guantanamo Bay, Cuba; and 

14 (B) the Government wishes to continue to 

15 detain as an unprivileged combatant; and 

16 (2) a detailed summary of the evidence upon 

17 which the determination to keep a person described 

18 in paragraph (1) in custody was made. 

19 (b) CONGRESSIONAL OVERSIGHT.—Not later than 10 

20 days after developing the list described in subsection (a), 

21 the Secretary of Defense shall submit an unclassified 

22 version of that list to the appropriate committees of Con23 gress. A classified, unredacted version of that list shall 

24 also be submitted to the appropriate committees of Con25 gress for review. 


ccoleman on PROD1PC71 with BILLS
14 

•S 3614 IS

1 (c) UPDATED LIST.— 

2 (1) IN GENERAL.—Not less than once every 60 

3 days after the date the list described in subsection 

4 (a) is completed, the Secretary of Defense shall up5 date the list of the persons described in subsection 

6 (a) and submit to the appropriate committees of 

7 Congress a detailed report for each person on such 

8 list that includes— 

9 (A) the name and nationality of each such 

10 person; and 

11 (B) with respect to each such person— 

12 (i) a detailed statement of why such 

13 person has not been charged, repatriated, 

14 or released; 

15 (ii) a statement of when the United 

16 States intends to charge, repatriate, or re17 lease such person; 

18 (iii) a description of the procedures to 

19 be employed by the United States to deter20 mine whether to charge, repatriate, or re21 lease such person and a schedule for the 

22 employment of such procedures; and 

23 (iv) if the Secretary of Defense has 

24 transferred or has plans to transfer such 

25 person from the custody of the Secretary 


ccoleman on PROD1PC71 with BILLS
15 

•S 3614 IS

1 to another agency or department of the 

2 United States, a description of such trans3 fer. 

4 (2) FORM OF REPORTS.—Each report required 

5 by this subsection shall be submitted in an unclassi6 fied form, to the maximum extent practicable, and 

7 may include a classified annex, if necessary. 

8 (3) APPROPRIATE COMMITTEES OF CONGRESS

9 DEFINED.—In this subsection, the term ‘‘appro10 priate committees of Congress’’ means— 

11 (A) the Committee on Armed Services, the 

12 Committee on the Judiciary, and the Select 

13 Committee on Intelligence of the Senate; and 

14 (B) the Committee on Armed Services, the 

15 Committee on the Judiciary, and the Perma16 nent Select Committee on Intelligence of the 

17 House of Representatives. 

18 (d) CONGRESSIONAL OVERSIGHT.—Not later than 10 

19 days after updating the list of persons under subsection 

20 (c), the Secretary of Defense shall submit that updated 

21 list to the appropriate committees of Congress in both un22 classified and unredacted, classified form. 

23 SEC. 8. FIELD TRIBUNALS. 

24 (a) IN GENERAL.—Not more than 30 days after a 

25 suspected unprivileged combatant has been detained by 


ccoleman on PROD1PC71 with BILLS
16 

•S 3614 IS

1 United States forces, the Department of Defense shall 

2 conduct a field tribunal in order to determine whether the 

3 detainee is an unprivileged combatant and whether the de4 tainee is entitled to the rights afforded under the Geneva 

5 Convention. 

6 (b) PROCEDURES.—The procedures governing a field 

7 tribunal shall be promulgated by the Department of De8 fense 

9 SEC. 9. CLASSIFICATION TRIBUNALS. 

10 (a) IN GENERAL.—A detainee shall be released and 

11 repatriated to an appropriate country unless a classifica12 tion tribunal board finds by a preponderance of the evi13 dence that— 

14 (1) the detainee is a threat to the national secu15 rity interest of the United States; or 

16 (2) there are reasonable grounds to believe that 

17 if released the detainee would take up arms against 

18 the United States. 

19 (b) COMPLIANCE WITH GENEVA CONVENTIONS.—If 

20 a detainee is found to be a privileged combatant entitled 

21 to provisions under the Convention Relative to the Treat22 ment of Prisoners of War, done at Geneva, August 12, 

23 1948 (6 UST 3516), then the detainee must be treated 

24 in accordance with that convention. 


ccoleman on PROD1PC71 with BILLS
17 

•S 3614 IS

1 (c) CITIZEN OF THE UNITED STATES.—If a detainee 

2 is found to be a citizen of the United States of America, 

3 the detainee shall not be held or tried under this Act. 

4 (d) CLASSIFICATION TRIBUNAL BOARD.—A classi5 fication tribunal shall be conducted by a board appointed 

6 by the Secretary of Defense and consist solely of line offi7 cers, one of whom shall be an attorney. 

8 (e) DETERMINATION.— 

9 (1) IN GENERAL.—If a classification tribunal 

10 board finds that a detainee meets the requirements 

11 of subsection (a), the classification tribunal board 

12 shall order that the detainee shall continue to be de13 tained by the Department of Defense, subject to 

14 periodic review under subsection (h). 

15 (2) TIME PERIOD.—The time period for the de16 tention of a detainee under paragraph (1) may not 

17 exceed the time period that United States forces are 

18 engaged in combat operations as defined by the De19 partment of Defense in the nation or theater where 

20 the detainee was captured so long as the detainee is 

21 found to be a privileged combatant. 

22 (3) CONCLUSION OF COMBAT.—At the conclu23 sion of combat operations within a given theater or 

24 nation— 


ccoleman on PROD1PC71 with BILLS
18 

•S 3614 IS

1 (A) a privileged combatant that was cap2 tured in that area shall be either indicted under 

3 this Act or repatriated to the appropriate coun4 try; and 

5 (B) an unprivileged combatant may con6 tinue to be detained pursuant to subsection (a). 

7 (f) CONSIDERATIONS.— 

8 (1) IN GENERAL.—In making a determination 

9 under subsection (a), a classification tribunal board 

10 shall consider any information brought to its atten11 tion regarding the need for continued detention, in12 cluding— 

13 (A) the detainee’s alleged position or rank 

14 in any hostile organization; 

15 (B) the activities of that hostile organiza16 tion; 

17 (C) any statements made by the detainee 

18 in response to interrogation; and 

19 (D) the detainee’s history of violence or 

20 terrorist activity. 

21 (2) PRIMA FACIE EVIDENCE.—If the Govern22 ment represents that a detainee was captured during 

23 a military engagement while taking up arms against, 

24 or supporting military operations against, the Armed 

25 Forces of the United States or its allies, there shall 


ccoleman on PROD1PC71 with BILLS
19 

•S 3614 IS

1 be prima facie evidence that, if released, the detainee 

2 would take up arms against the United States. 

3 (g) TIMING.—A detainee shall be afforded a classi4 fication tribunal as soon as is reasonably practicable but 

5 not later than 180 days after the detainee’s capture and 

6 not later than 30 days after the detainee is listed under 

7 section 7, unless continued. 

8 (h) PERIODIC REVIEW.— 

9 (1) IN GENERAL.— 

10 (A) SEMIANNUAL REVIEW.—The classifica11 tion tribunal shall conduct a classification hear12 ing for each detainee not less frequently than 

13 every 180 days, in accordance with the proce14 dures established under this section and section 

15 10. 

16 (B) ACTION PERIOD.—A detainee appre17 hended during a military engagement while tak18 ing up arms against, or supporting military op19 erations against, the Armed Forces of the 

20 United States or its allies may be detained until 

21 the cessation of armed hostilities in the nation 

22 or region in which they were captured. 

23 (2) ARGUMENT.—The Government and the de24 tainee may be heard regarding the review under 

25 paragraph (1). 


ccoleman on PROD1PC71 with BILLS
20 

•S 3614 IS

1 SEC. 10. CLASSIFICATION TRIBUNAL PROCEDURES. 

2 (a) DETAINEES.— 

3 (1) IN GENERAL.—A detainee shall not be re4 quired to testify or present any evidence at a classi5 fication tribunal. 

6 (2) PRESENCE.—A detainee shall be entitled to 

7 be present at the classification tribunal, unless the 

8 head of the tribunal has decided to admit classified 

9 information. 

10 (b) COUNSEL.— 

11 (1) IN GENERAL.—A detainee is entitled to the 

12 assistance of counsel admitted to practice under this 

13 Act at every stage of the classification tribunal, in14 cluding the periodic review of orders under sub15 section (e). 

16 (2) RIGHT TO APPOINTED COUNSEL.—A de17 tainee who is unable to obtain counsel is entitled to 

18 have counsel admitted to practice before a commis19 sion under this Act. 

20 (3) REFUSAL OF COUNSEL.—A detainee may 

21 waive counsel but shall not be entitled to protected 

22 information. 

23 (c) DISCOVERY.— 

24 (1) GOVERNMENT’S DISCLOSURE.—Not later 

25 than 3 days prior to the classification tribunal, the 

26 Government shall make available for inspection by 


ccoleman on PROD1PC71 with BILLS
21 

•S 3614 IS

1 counsel for the detainee any affidavit or affirmation 

2 the Government intends to offer in support of con3 tinuing to detain the detainee. A classification tri4 bunal board shall maintain a copy of any submis5 sions made by the Government for inspection by the 

6 detainee and for transmittal, if necessary, to that 

7 tribunal. 

8 (2) DETAINEE’S DISCLOSURE.—If the detainee 

9 chooses to submit any evidence, such evidence, in10 cluding a list of any witnesses the detainee intends 

11 to call, shall be made available to the Government 

12 for inspection not later than 3 days prior to the clas13 sification tribunal. 

14 (d) EVIDENCE.— 

15 (1) IN GENERAL.—The Federal Rules of Evi16 dence shall not apply to a classification tribunal. 

17 (2) ADMISSIBILITY STANDARD.—Evidence shall 

18 be admitted if the classification tribunal board deter19 mines the evidence would have probative value to a 

20 reasonable person. 

21 (3) AFFIDAVIT OR AFFIRMATION.—The Govern22 ment may proceed by proffer and submit any rel23 evant information by affidavit or affirmation, unless 

24 decided unreliable by the members of the classifica25 tion tribunal board. 


ccoleman on PROD1PC71 with BILLS
22 

•S 3614 IS

1 (4) CROSS-EXAMINATION.— 

2 (A) GOVERNMENT WITNESSES.—If a Gov3 ernment chooses to call witnesses, the detainee 

4 may cross-examine those witnesses on all rel5 evant facts. 

6 (B) DETAINEE WITNESSES.—If a detainee 

7 calls any witnesses, they shall be subject to 

8 cross examination. 

9 (C) DETAINEE.—If the detainee chooses to 

10 testify, the detainee shall be subject to cross-ex11 amination. 

12 (e) DEFENSES.—A detainee may challenge whether 

13 the detainee satisfies the elements required under sub14 section (a). 

15 (f) PROCEEDINGS.— 

16 (1) IN GENERAL.—A classification tribunal 

17 shall be closed to the public. 

18 (2) SECURITY CLEARANCES.—Each person 

19 present at a classification tribunal, other than the 

20 detainee, shall possess a security clearance appro21 priate to the level of any classified information being 

22 presented. 

23 (3) PUBLIC INFORMATION REGARDING PRO24 CEEDINGS.—After the classification tribunal board 

25 rules in the classification tribunal, the parties shall 


ccoleman on PROD1PC71 with BILLS
23 

•S 3614 IS

1 propose a nonclassified summary to that board. The 

2 board shall publicly release a summary, containing 

3 any information generated at the tribunal which can 

4 be disclosed in a manner consistent with the Classi5 fied Information Procedures Act (18 U.S.C. App.) 

6 and the national security of the United States. 

7 (g) REINSTITUTING CLASSIFICATION PRO8 CEEDINGS.— 

9 (1) IN GENERAL.—If a matter involving the 

10 classification tribunal of a detainee is dismissed 

11 without prejudice by the classification tribunal or 

12 withdrawn by the Government at, or prior to, the 

13 classification tribunal, the Government may re14 institute the matter with the tribunal board that dis15 missed or permitted the withdrawal of the matter. 

16 (2) TIME LIMIT.—A complaint reinstituting 

17 proceedings under paragraph (1) shall be filed not 

18 later than 10 days after the dismissal or withdrawal 

19 of the matter. 

20 (3) NUMBER.—The Government may re21 institute proceedings under paragraph (1) not more 

22 than twice and only if approved by the ranking 

23 member on the classification tribunal board. 

24 SEC. 11. CONTINUANCE OF CLASSIFICATION TRIBUNALS. 

25 (a) CONTINUANCES.— 


ccoleman on PROD1PC71 with BILLS
24 

•S 3614 IS

1 (1) IN GENERAL.—A classification tribunal 

2 board may, for cause shown, grant a continuance of 

3 a classification tribunal. 

4 (2) CONTINUANCE.— 

5 (A) IN GENERAL.—Upon motion of the 

6 Government, the classification tribunal board 

7 may grant a continuance for as long as nec8 essary, but no longer than a 6-month period, 

9 under paragraph (1) if the classification tri10 bunal board determines that the detainee is a 

11 high level individual in the planning or financ12 ing of terrorist activities or the individual pos13 sess information vital to the safety of the 

14 United States or its citizens. 

15 (B) SUBSEQUENT CONTINUANCES.—The 

16 Government may obtain subsequent continu17 ances for additional 6-month periods so long as 

18 the classification tribunal board finds such con19 tinuances are necessary to the informational 

20 gathering purposes as it related to the national 

21 security of the United States. 

22 (3) EX PARTE APPLICATIONS.— 

23 (A) IN GENERAL.—The Government may 

24 move for a continuance under paragraph (1) ex 

25 parte. 


ccoleman on PROD1PC71 with BILLS
25 

•S 3614 IS

1 (B) DETAINEE RIGHTS.—A detainee— 

2 (i) is not entitled to representation by 

3 counsel in connection with any such ex 

4 parte motion; and 

5 (ii) shall not be given notice of the re6 quest for a hearing prior to the ruling of 

7 the classification tribunal board on the 

8 Government’s request for a continuance 

9 pursuant to paragraph (2). 

10 (b) GRANT OF CONTINUANCE.—For each continu11 ance granted under subsection (a), the classification tri12 bunal board shall note on the record of the proceedings— 

13 (1) the grounds for granting each such continu14 ance; 

15 (2) the identity of the party requesting the con16 tinuance; 

17 (3) the new date and time for the tribunal hear18 ing; and 

19 (4) the reasons that the date under paragraph 

20 (3) was chosen. 

21 SEC. 12. CRIMINAL PROSECUTION PROCEDURES GEN22 ERALLY. 

23 (a) COUNSEL.— 

24 (1) IN GENERAL.—A defendant in a criminal 

25 proceeding under this Act has a right to be repVerDate Aug 31 2005 02:51 Jul 04, 2006 Jkt 049200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S3614.IS S3614

ccoleman on PROD1PC71 with BILLS
26 

•S 3614 IS

1 resented by counsel admitted to practice before a 

2 commission under this Act. 

3 (2) APPOINTED COUNSEL.— 

4 (A) IN GENERAL.—A defendant who is un5 able to obtain counsel is entitled to have counsel 

6 appointed and to be represented by such coun7 sel at every stage of the proceeding subsequent 

8 to being indicted. 

9 (B) APPOINTMENT PROCEDURE.—The 

10 Secretary of Defense shall determine the rules 

11 for appointing counsel to practice before the 

12 commission. 

13 (b) DISCOVERY.— 

14 (1) CLASSIFIED DOCUMENTS AND OBJECTS.— 

15 The Government shall provide the defense with ac16 cess to evidence the Government intends to intro17 duce at trial and with access to evidence known to 

18 the Government or which should be known to the 

19 Government that tends to exculpate the accused. In20 formation disclosed to the defense may not be dis21 closed to the defendant if it is classified as defined 

22 by this Act. The defense may submit classified infor23 mation for review under section 12(b)(2). 

24 (2) SEPARATE COMMISSION CONCERNING CLAS25 SIFIED INFORMATION.—The Secretary of Defense 


ccoleman on PROD1PC71 with BILLS
27 

•S 3614 IS

1 shall appoint a commission to conduct a thorough 

2 review of the classification system for national secu3 rity information, including the policy, procedures, 

4 and practices of the system. The Secretary of De5 fense shall determine what level of security clearance 

6 is necessary to conduct the review under this para7 graph. No person shall be appointed as a member of 

8 the commission who does not have a security clear9 ance at or above the level of clearance so designated 

10 by the Secretary. The commission shall make rec11 ommendations to the Secretary of Defense as to the 

12 declassification of information relevant to the trial of 

13 detainees. 

14 (3) REGULATING DISCOVERY.— 

15 (A) IN GENERAL.—A commission may, for 

16 good cause, deny, restrict, or defer discovery or 

17 inspection, or grant other appropriate relief. 

18 (B) EX PARTE REQUEST.—A party may 

19 make an ex parte request in writing that a com20 mission deny, restrict, or defer discovery or in21 spection under subparagraph (A). If the a com22 mission grants a request under this subpara23 graph, the Commission shall preserve the entire 

24 text of the party’s request under seal. 


ccoleman on PROD1PC71 with BILLS
28 

•S 3614 IS

1 (C) FAILURE TO COMPLY.—If a party fails 

2 to comply with the rules of discovery applicable 

3 to a commission, the commission may— 

4 (i) order that party to permit the dis5 covery or inspection, specify its time, place, 

6 and manner, and prescribe other just 

7 terms and conditions; or 

8 (ii) grant a continuance. 

9 (c) OPEN PROCEEDINGS.— 

10 (1) IN GENERAL.—Except as provided in para11 graphs (2) and (3), a proceeding before a commis12 sion shall be open to the public. 

13 (2) CLASSIFIED INFORMATION.— 

14 (A) IN GENERAL.—Upon motion by the 

15 Government, a proceeding before a commission 

16 shall be closed to the public if necessary to 

17 avoid disclosure of classified information. 

18 (B) NONDISCLOSURE.—A priority under 

19 subparagraph (A) shall not disclose any infor20 mation presented during a closed session to in21 dividuals excluded from such proceeding or part 

22 thereof including the defendant. 

23 (3) OTHER BASES.—A commission may order 

24 that a hearing be held, in whole or in part, in cam25 era, if the commission determines— 


ccoleman on PROD1PC71 with BILLS
29 

•S 3614 IS

1 (A) it is appropriate for the security of a 

2 witness or a Government employee or to protect 

3 public safety; or 

4 (B) that an open hearing would deter a 

5 witness from testifying freely or prevent the 

6 witness from testifying at all. 

7 (4) EXTRAJUDICIAL STATEMENTS.—At the dis8 cretion of a commission, the commission may issue 

9 an order limiting extrajudicial statements by the 

10 parties. 

11 (d) PROTECTED INFORMATION.— 

12 (1) IN GENERAL.—A commission may issue 

13 protective orders as necessary to safeguard protected 

14 information in a proceeding before that commission. 

15 (2) NOTIFICATION.—As soon as practicable, a 

16 party shall notify a commission of any intent to offer 

17 evidence including protected information . 

18 (3) TRIAL RECORD.— 

19 (A) IN GENERAL.—All exhibits admitted as 

20 evidence but containing protected information 

21 shall be sealed and annexed to the record of 

22 trial. 

23 (B) PROTECTED INFORMATION NOT AD24 MITTED.—Any protected information not admit25 ted as evidence, but reviewed by a commission 


ccoleman on PROD1PC71 with BILLS
30 

•S 3614 IS

1 in camera and withheld from the defendant’s 

2 counsel over objection shall be sealed and an3 nexed to the record of the trial, with any associ4 ated motions and responses and any materials 

5 submitted in support thereof, as additional ex6 hibits. 

7 (e) RECORD OF TRIAL.— 

8 (1) REQUIREMENT FOR RECORD.—A record of 

9 each proceeding by a commission shall be prepared 

10 promptly after the conclusion of the trial. 

11 (2) VERBATIM TRANSCRIPT.—The record of 

12 trial shall include a verbatim written transcript of all 

13 sessions of the trial. 

14 (3) EXHIBITS AND OTHER EVIDENCE.—The 

15 record of trial shall also include all exhibits and 

16 other real or demonstrative evidence, except that 

17 photographs may be substituted for any large writ18 ten or graphic exhibits and any other real or demon19 strative evidence. If a photograph is substituted for 

20 an exhibit or other evidence, the Government shall 

21 retain the original exhibit or other evidence, respec22 tively, until no further appeal of the results of the 

23 trial is authorized. 

24 (4) CLASSIFIED INFORMATION.—In the case of 

25 a conviction of a charge on which classified informaVerDate Aug 31 2005 02:51 Jul 04, 2006 Jkt 049200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\S3614.IS S3614

ccoleman on PROD1PC71 with BILLS
31 

•S 3614 IS

1 tion is admitted as evidence by a commission, the 

2 copy of the record of trial submitted to the commis3 sion shall include the classified information. 

4 SEC. 13. TRIAL PROCEDURES FOR UNPRIVILEGED COMBAT5 ANTS. 

6 (a) SPECIALIZED PROCEDURES.— 

7 (1) STANDARD OF PROOF.—All 3 members of a 

8 commission shall agree that the defendant is guilty 

9 beyond a reasonable doubt for a defendant to be 

10 found guilty. 

11 (2) RULES OF PROCEDURE.— 

12 (A) IN GENERAL.—Except as provided in 

13 subparagraph (B), the Secretary of Defense 

14 shall draft supplementary rules to govern all 

15 proceedings under this section. 

16 (B) STANDARD.—Evidence is admissible if 

17 the Secretary of Defense determines that the 

18 evidence would have probative value to a rea19 sonable person. 

20 (3) FORM OF TRIAL.—Any trial under this sub21 section shall take place before 2 military officers or 

22 attorneys and at least one military judge. 

23 (4) BAD ACTS.—Other bad acts may be consid24 ered if they would have fallen within the definition 

25 under this Act of either terrorism or terrorist activVerDate Aug 31 2005 02:51 Jul 04, 2006 Jkt 049200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\S3614.IS S3614

ccoleman on PROD1PC71 with BILLS
32 

•S 3614 IS

1 ity and they are deemed to be relevant by a commis2 sion including propensity. 

3 (b) CUSTODY.—The Department of Defense shall re4 tain custody of any person determined by a commission 

5 to be unprivileged combatants after the person has been 

6 either convicted or sentenced in accordance with this Act, 

7 unless the Department of Defense deems otherwise. Deci8 sions made by a commission in regards to a detainee’s 

9 guilt or innocence may be considered by a tribunal when 

10 assessing the need to continue the detention of a detainee. 

11 SEC. 14. COMMUNICATION WITH PERSONS IN CUSTODY. 

12 An individual detained, indicted, or convicted under 

13 this Act shall only be permitted to communicate with the 

14 interpreter assigned to the individual, the counsel rep15 resenting the individual, prison personnel, and any other 

16 individual approved by the Secretary of Defense. 

17 SEC. 15. COMMISSION COUNSEL. 

18 (a) IN GENERAL.—A person shall be admitted to 

19 practice before a commission if the person— 

20 (1) is a United States citizen; 

21 (2) has been admitted to the practice of law in 

22 a State, district, territory, or possession of the 

23 United States, or before a Federal court; 

24 (3) has not been sanctioned or otherwise the 

25 subject of disciplinary action by any court, bar, or 


ccoleman on PROD1PC71 with BILLS
33 

•S 3614 IS

1 other competent governmental authority for mis2 conduct; 

3 (4) is eligible for access to information classi4 fied at the level of secret as defined by the Depart5 ment of Defense; and 

6 (5) signs a written agreement to comply with 

7 all applicable regulations or instructions for counsel, 

8 including any rules of court for conduct during the 

9 course of proceedings. 

10 (b) CONSULTATION WITH COLLEAGUES.—Any per11 son admitted under subsection (a) shall not confer with 

12 any colleague who does not have the appropriate clearance. 

13 (c) SECURITY CLEARANCE.— 

14 (1) EXPEDITED CONSIDERATION.—The Sec15 retary of Defense shall ensure that a person seeking 

16 to be admitted under subsection (a) is timely proc17 essed for the security clearance required for access 

18 to materials necessary for providing a defendant 

19 with effective assistance of counsel. 

20 (2) COUNSEL INELIGIBLE FOR CLEARANCE.—If 

21 the Secretary of Defense determines a person is not 

22 eligible for the necessary security clearance, the per23 son shall not be permitted to represent an individual 

24 in any proceeding before the Commission. The deter25 mination of the Secretary of Defense shall be final 


ccoleman on PROD1PC71 with BILLS
34 

•S 3614 IS

1 and is not subject to appeal to, or other review by, 

2 any court of the United States. 

3 (d) TRAVEL EXPENSES.—The Secretary of Defense 

4 shall reimburse any person not employed by the Govern5 ment who is representing an individual before the Com6 mission for travel away from the home or regular place 

7 of business of the person in connection with such represen8 tation. The rates for the payment of travel expenses under 

9 this subsection shall be those authorized for employees of 

10 agencies under subchapter I of chapter 57 of title 5, 

11 United States Code. 

Æ 


ccoleman on PROD1PC71 with BILLS