109TH CONGRESS

2D SESSION S. 3930

AN ACT

To authorize trial by military commission for violations of

the law of war, and for other purposes.

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; TABLE OF CONTENTS.

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

5 ‘‘Military Commissions Act of 2006’’.
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1 (b) TABLE OF CONTENTS.—The table of contents for

2 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Construction of Presidential authority to establish military commissions.

Sec. 3. Military commissions.

Sec. 4. Amendments to Uniform Code of Military Justice.

Sec. 5. Treaty obligations not establishing grounds for certain claims.

Sec. 6. Implementation of treaty obligations.

Sec. 7. Habeas corpus matters.

Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to protection of

certain United States Government personnel.

Sec. 9. Review of judgments of military commissions.

Sec. 10. Detention covered by review of decisions of Combatant Status Review

Tribunals of propriety of detention.

3 SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO

4 ESTABLISH MILITARY COMMISSIONS.

5 The authority to establish military commissions

6 under chapter 47A of title 10, United States Code, as

7 added by section 3(a), may not be construed to alter or

8 limit the authority of the President under the Constitution

9 of the United States and laws of the United States to es10 tablish military commissions for areas declared to be

11 under martial law or in occupied territories should cir12 cumstances so require.

13 SEC. 3. MILITARY COMMISSIONS.

14 (a) MILITARY COMMISSIONS.—

15 (1) IN GENERAL.—Subtitle A of title 10,

16 United States Code, is amended by inserting after

17 chapter 47 the following new chapter:

18 ‘‘CHAPTER 47A—MILITARY COMMISSIONS

‘‘Subchapter

‘‘I. General Provisions .............................................................................. 948a

‘‘II. Composition of Military Commissions ............................................... 948h
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‘‘III. Pre-Trial Procedure ......................................................................... 948q

‘‘IV. Trial Procedure ................................................................................. 949a

‘‘V. Sentences ............................................................................................ 949s

‘‘VI. Post-Trial Procedure and Review of Military Commissions ............. 950a

‘‘VII. Punitive Matters ............................................................................. 950p

1 ‘‘SUBCHAPTER I—GENERAL PROVISIONS

‘‘Sec.

‘‘948a. Definitions.

‘‘948b. Military commissions generally.

‘‘948c. Persons subject to military commissions.

‘‘948d. Jurisdiction of military commissions.

‘‘948e. Annual report to congressional committees.

2 ‘‘§ 948a. Definitions

3 ‘‘In this chapter:

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

5 term ‘unlawful enemy combatant’ means—

6 ‘‘(i) a person who has engaged in hos7 tilities or who has purposefully and materially

8 supported hostilities against the United States

9 or its co-belligerents who is not a lawful enemy

10 combatant (including a person who is part of

11 the Taliban, al Qaeda, or associated forces); or

12 ‘‘(ii) a person who, before, on, or after the

13 date of the enactment of the Military Commis14 sions Act of 2006, has been determined to be

15 an unlawful enemy combatant by a Combatant

16 Status Review Tribunal or another competent

17 tribunal established under the authority of the

18 President or the Secretary of Defense.
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1 ‘‘(B) CO-BELLIGERENT.—In this paragraph,

2 the term ‘co-belligerent’, with respect to the United

3 States, means any State or armed force joining and

4 directly engaged with the United States in hostilities

5 or directly supporting hostilities against a common

6 enemy.

7 ‘‘(2) LAWFUL ENEMY COMBATANT.—The term

8 ‘lawful enemy combatant’ means a person who is—

9 ‘‘(A) a member of the regular forces of a

10 State party engaged in hostilities against the

11 United States;

12 ‘‘(B) a member of a militia, volunteer

13 corps, or organized resistance movement belong14 ing to a State party engaged in such hostilities,

15 which are under responsible command, wear a

16 fixed distinctive sign recognizable at a distance,

17 carry their arms openly, and abide by the law

18 of war; or

19 ‘‘(C) a member of a regular armed force

20 who professes allegiance to a government en21 gaged in such hostilities, but not recognized by

22 the United States.

23 ‘‘(3) ALIEN.—The term ‘alien’ means a person

24 who is not a citizen of the United States.
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1 ‘‘(4) CLASSIFIED INFORMATION.—The term

2 ‘classified information’ means the following:

3 ‘‘(A) Any information or material that has

4 been determined by the United States Govern5 ment pursuant to statute, Executive order, or

6 regulation to require protection against unau7 thorized disclosure for reasons of national secu8 rity.

9 ‘‘(B) Any restricted data, as that term is

10 defined in section 11 y. of the Atomic Energy

11 Act of 1954 (42 U.S.C. 2014(y)).

12 ‘‘(5) GENEVA CONVENTIONS.—The term ‘Gene13 va Conventions’ means the international conventions

14 signed at Geneva on August 12, 1949.

15 ‘‘§ 948b. Military commissions generally

16 ‘‘(a) PURPOSE.—This chapter establishes procedures

17 governing the use of military commissions to try alien un18 lawful enemy combatants engaged in hostilities against the

19 United States for violations of the law of war and other

20 offenses triable by military commission.

21 ‘‘(b) AUTHORITY FOR MILITARY COMMISSIONS

22 UNDER THIS CHAPTER.—The President is authorized to

23 establish military commissions under this chapter for of24 fenses triable by military commission as provided in this

25 chapter.
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1 ‘‘(c) CONSTRUCTION OF PROVISIONS.—The proce2 dures for military commissions set forth in this chapter

3 are based upon the procedures for trial by general courts4 martial under chapter 47 of this title (the Uniform Code

5 of Military Justice). Chapter 47 of this title does not, by

6 its terms, apply to trial by military commission except as

7 specifically provided in this chapter. The judicial construc8 tion and application of that chapter are not binding on

9 military commissions established under this chapter.

10 ‘‘(d) INAPPLICABILITY OF CERTAIN PROVISIONS.—

11 (1) The following provisions of this title shall not apply

12 to trial by military commission under this chapter:

13 ‘‘(A) Section 810 (article 10 of the Uniform

14 Code of Military Justice), relating to speedy trial,

15 including any rule of courts-martial relating to

16 speedy trial.

17 ‘‘(B) Sections 831(a), (b), and (d) (articles

18 31(a), (b), and (d) of the Uniform Code of Military

19 Justice), relating to compulsory self-incrimination.

20 ‘‘(C) Section 832 (article 32 of the Uniform

21 Code of Military Justice), relating to pretrial inves22 tigation.

23 ‘‘(2) Other provisions of chapter 47 of this title shall

24 apply to trial by military commission under this chapter

25 only to the extent provided by this chapter.
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1 ‘‘(e) TREATMENT OF RULINGS AND PRECEDENTS.—

2 The findings, holdings, interpretations, and other prece3 dents of military commissions under this chapter may not

4 be introduced or considered in any hearing, trial, or other

5 proceeding of a court-martial convened under chapter 47

6 of this title. The findings, holdings, interpretations, and

7 other precedents of military commissions under this chap8 ter may not form the basis of any holding, decision, or

9 other determination of a court-martial convened under

10 that chapter.

11 ‘‘(f) STATUS OF COMMISSIONS UNDER COMMON AR12 TICLE 3.—A military commission established under this

13 chapter is a regularly constituted court, affording all the

14 necessary ‘judicial guarantees which are recognized as in15 dispensable by civilized peoples’ for purposes of common

16 Article 3 of the Geneva Conventions.

17 ‘‘(g) GENEVA CONVENTIONS NOT ESTABLISHING

18 SOURCE OF RIGHTS.—No alien unlawful enemy combat19 ant subject to trial by military commission under this

20 chapter may invoke the Geneva Conventions as a source

21 of rights.

22 ‘‘§ 948c. Persons subject to military commissions

23 ‘‘Any alien unlawful enemy combatant is subject to

24 trial by military commission under this chapter.
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1 ‘‘§ 948d. Jurisdiction of military commissions

2 ‘‘(a) JURISDICTION.—A military commission under

3 this chapter shall have jurisdiction to try any offense made

4 punishable by this chapter or the law of war when com5 mitted by an alien unlawful enemy combatant before, on,

6 or after September 11, 2001.

7 ‘‘(b) LAWFUL ENEMY COMBATANTS.—Military com8 missions under this chapter shall not have jurisdiction

9 over lawful enemy combatants. Lawful enemy combatants

10 who violate the law of war are subject to chapter 47 of

11 this title. Courts-martial established under that chapter

12 shall have jurisdiction to try a lawful enemy combatant

13 for any offense made punishable under this chapter.

14 ‘‘(c) DETERMINATION OF UNLAWFUL ENEMY COM15 BATANT STATUS DISPOSITIVE.—A finding, whether be16 fore, on, or after the date of the enactment of the Military

17 Commissions Act of 2006, by a Combatant Status Review

18 Tribunal or another competent tribunal established under

19 the authority of the President or the Secretary of Defense

20 that a person is an unlawful enemy combatant is disposi21 tive for purposes of jurisdiction for trial by military com22 mission under this chapter.

23 ‘‘(d) PUNISHMENTS.—A military commission under

24 this chapter may, under such limitations as the Secretary

25 of Defense may prescribe, adjudge any punishment not
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1 forbidden by this chapter, including the penalty of death

2 when authorized under this chapter or the law of war.

3 ‘‘§ 948e. Annual report to congressional committees

4 ‘‘(a) ANNUAL REPORT REQUIRED.—Not later than

5 December 31 each year, the Secretary of Defense shall

6 submit to the Committees on Armed Services of the Sen7 ate and the House of Representatives a report on any

8 trials conducted by military commissions under this chap9 ter during such year.

10 ‘‘(b) FORM.—Each report under this section shall be

11 submitted in unclassified form, but may include a classi12 fied annex.

13 ‘‘SUBCHAPTER II—COMPOSITION OF MILITARY

14 COMMISSIONS

‘‘Sec.

‘‘948h. Who may convene military commissions.

‘‘948i. Who may serve on military commissions.

‘‘948j. Military judge of a military commission.

‘‘948k. Detail of trial counsel and defense counsel.

‘‘948l. Detail or employment of reporters and interpreters.

‘‘948m. Number of members; excuse of members; absent and additional members.

15 ‘‘§ 948h. Who may convene military commissions

16 ‘‘Military commissions under this chapter may be

17 convened by the Secretary of Defense or by any officer

18 or official of the United States designated by the Secretary

19 for that purpose.
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1 ‘‘§ 948i. Who may serve on military commissions

2 ‘‘(a) IN GENERAL.—Any commissioned officer of the

3 armed forces on active duty is eligible to serve on a mili4 tary commission under this chapter.

5 ‘‘(b) DETAIL OF MEMBERS.—When convening a mili6 tary commission under this chapter, the convening author7 ity shall detail as members of the commission such mem8 bers of the armed forces eligible under subsection (a), as

9 in the opinion of the convening authority, are best quali10 fied for the duty by reason of age, education, training,

11 experience, length of service, and judicial temperament.

12 No member of an armed force is eligible to serve as a

13 member of a military commission when such member is

14 the accuser or a witness for the prosecution or has acted

15 as an investigator or counsel in the same case.

16 ‘‘(c) EXCUSE OF MEMBERS.—Before a military com17 mission under this chapter is assembled for the trial of

18 a case, the convening authority may excuse a member

19 from participating in the case.

20 ‘‘§ 948j. Military judge of a military commission

21 ‘‘(a) DETAIL OF MILITARY JUDGE.—A military judge

22 shall be detailed to each military commission under this

23 chapter. The Secretary of Defense shall prescribe regula24 tions providing for the manner in which military judges

25 are so detailed to military commissions. The military judge
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1 shall preside over each military commission to which he

2 has been detailed.

3 ‘‘(b) QUALIFICATIONS.—A military judge shall be a

4 commissioned officer of the armed forces who is a member

5 of the bar of a Federal court, or a member of the bar

6 of the highest court of a State, and who is certified to

7 be qualified for duty under section 826 of this title (article

8 26 of the Uniform Code of Military Justice) as a military

9 judge in general courts-martial by the Judge Advocate

10 General of the armed force of which such military judge

11 is a member.

12 ‘‘(c) INELIGIBILITY OF CERTAIN INDIVIDUALS.—No

13 person is eligible to act as military judge in a case of a

14 military commission under this chapter if he is the accuser

15 or a witness or has acted as investigator or a counsel in

16 the same case.

17 ‘‘(d) CONSULTATION WITH MEMBERS; INELIGI18 BILITY TO VOTE.—A military judge detailed to a military

19 commission under this chapter may not consult with the

20 members of the commission except in the presence of the

21 accused (except as otherwise provided in section 949d of

22 this title), trial counsel, and defense counsel, nor may he

23 vote with the members of the commission.

24 ‘‘(e) OTHER DUTIES.—A commissioned officer who

25 is certified to be qualified for duty as a military judge of
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1 a military commission under this chapter may perform

2 such other duties as are assigned to him by or with the

3 approval of the Judge Advocate General of the armed

4 force of which such officer is a member or the designee

5 of such Judge Advocate General.

6 ‘‘(f) PROHIBITION ON EVALUATION OF FITNESS BY

7 CONVENING AUTHORITY.—The convening authority of a

8 military commission under this chapter shall not prepare

9 or review any report concerning the effectiveness, fitness,

10 or efficiency of a military judge detailed to the military

11 commission which relates to his performance of duty as

12 a military judge on the military commission.

13 ‘‘§ 948k. Detail of trial counsel and defense counsel

14 ‘‘(a) DETAIL OF COUNSEL GENERALLY.—(1) Trial

15 counsel and military defense counsel shall be detailed for

16 each military commission under this chapter.

17 ‘‘(2) Assistant trial counsel and assistant and asso18 ciate defense counsel may be detailed for a military com19 mission under this chapter.

20 ‘‘(3) Military defense counsel for a military commis21 sion under this chapter shall be detailed as soon as prac22 ticable after the swearing of charges against the accused.

23 ‘‘(4) The Secretary of Defense shall prescribe regula24 tions providing for the manner in which trial counsel and

25 military defense counsel are detailed for military commis-
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1 sions under this chapter and for the persons who are au2 thorized to detail such counsel for such commissions.

3 ‘‘(b) TRIAL COUNSEL.—Subject to subsection (e),

4 trial counsel detailed for a military commission under this

5 chapter must be—

6 ‘‘(1) a judge advocate (as that term is defined

7 in section 801 of this title (article 1 of the Uniform

8 Code of Military Justice) who—

9 ‘‘(A) is a graduate of an accredited law

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

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

12 ‘‘(B) is certified as competent to perform

13 duties as trial counsel before general courts14 martial by the Judge Advocate General of the

15 armed force of which he is a member; or

16 ‘‘(2) a civilian who—

17 ‘‘(A) is a member of the bar of a Federal

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

19 ‘‘(B) is otherwise qualified to practice be20 fore the military commission pursuant to regu21 lations prescribed by the Secretary of Defense.

22 ‘‘(c) MILITARY DEFENSE COUNSEL.—Subject to sub23 section (e), military defense counsel detailed for a military

24 commission under this chapter must be a judge advocate

25 (as so defined) who is—
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1 ‘‘(1) a graduate of an accredited law school or

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

3 highest court of a State; and

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

5 defense counsel before general courts-martial by the

6 Judge Advocate General of the armed force of which

7 he is a member.

8 ‘‘(d) CHIEF PROSECUTOR; CHIEF DEFENSE COUN9 SEL.—(1) The Chief Prosecutor in a military commission

10 under this chapter shall meet the requirements set forth

11 in subsection (b)(1).

12 ‘‘(2) The Chief Defense Counsel in a military com13 mission under this chapter shall meet the requirements set

14 forth in subsection (c)(1).

15 ‘‘(e) INELIGIBILITY OF CERTAIN INDIVIDUALS.—No

16 person who has acted as an investigator, military judge,

17 or member of a military commission under this chapter

18 in any case may act later as trial counsel or military de19 fense counsel in the same case. No person who has acted

20 for the prosecution before a military commission under

21 this chapter may act later in the same case for the de22 fense, nor may any person who has acted for the defense

23 before a military commission under this chapter act later

24 in the same case for the prosecution.
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1 ‘‘§ 948l. Detail or employment of reporters and inter2 preters

3 ‘‘(a) COURT REPORTERS.—Under such regulations

4 as the Secretary of Defense may prescribe, the convening

5 authority of a military commission under this chapter

6 shall detail to or employ for the commission qualified court

7 reporters, who shall make a verbatim recording of the pro8 ceedings of and testimony taken before the commission.

9 ‘‘(b) INTERPRETERS.—Under such regulations as the

10 Secretary of Defense may prescribe, the convening author11 ity of a military commission under this chapter may detail

12 to or employ for the military commission interpreters who

13 shall interpret for the commission and, as necessary, for

14 trial counsel and defense counsel and for the accused.

15 ‘‘(c) TRANSCRIPT; RECORD.—The transcript of a

16 military commission under this chapter shall be under the

17 control of the convening authority of the commission, who

18 shall also be responsible for preparing the record of the

19 proceedings.

20 ‘‘§ 948m. Number of members; excuse of members; ab21 sent and additional members

22 ‘‘(a) NUMBER OF MEMBERS.—(1) A military com23 mission under this chapter shall, except as provided in

24 paragraph (2), have at least five members.

25 ‘‘(2) In a case in which the accused before a military

26 commission under this chapter may be sentenced to a pen-
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1 alty of death, the military commission shall have the num2 ber of members prescribed by section 949m(c) of this title.

3 ‘‘(b) EXCUSE OF MEMBERS.—No member of a mili4 tary commission under this chapter may be absent or ex5 cused after the military commission has been assembled

6 for the trial of a case unless excused—

7 ‘‘(1) as a result of challenge;

8 ‘‘(2) by the military judge for physical disability

9 or other good cause; or

10 ‘‘(3) by order of the convening authority for

11 good cause.

12 ‘‘(c) ABSENT AND ADDITIONAL MEMBERS.—When13 ever a military commission under this chapter is reduced

14 below the number of members required by subsection (a),

15 the trial may not proceed unless the convening authority

16 details new members sufficient to provide not less than

17 such number. The trial may proceed with the new mem18 bers present after the recorded evidence previously intro19 duced before the members has been read to the military

20 commission in the presence of the military judge, the ac21 cused (except as provided in section 949d of this title),

22 and counsel for both sides.

23 ‘‘SUBCHAPTER III—PRE-TRIAL PROCEDURE

‘‘Sec.

‘‘948q. Charges and specifications.

‘‘948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements.

‘‘948s. Service of charges.
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1 ‘‘§ 948q. Charges and specifications

2 ‘‘(a) CHARGES AND SPECIFICATIONS.—Charges and

3 specifications against an accused in a military commission

4 under this chapter shall be signed by a person subject to

5 chapter 47 of this title under oath before a commissioned

6 officer of the armed forces authorized to administer oaths

7 and shall state—

8 ‘‘(1) that the signer has personal knowledge of,

9 or reason to believe, the matters set forth therein;

10 and

11 ‘‘(2) that they are true in fact to the best of the

12 signer’s knowledge and belief.

13 ‘‘(b) NOTICE TO ACCUSED.—Upon the swearing of

14 the charges and specifications in accordance with sub15 section (a), the accused shall be informed of the charges

16 against him as soon as practicable.

17 ‘‘§ 948r. Compulsory self-incrimination prohibited;

18 treatment of statements obtained by tor19 ture and other statements

20 ‘‘(a) IN GENERAL.—No person shall be required to

21 testify against himself at a proceeding of a military com22 mission under this chapter.

23 ‘‘(b) EXCLUSION OF STATEMENTS OBTAINED BY

24 TORTURE.—A statement obtained by use of torture shall

25 not be admissible in a military commission under this
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1 chapter, except against a person accused of torture as evi2 dence that the statement was made.

3 ‘‘(c) STATEMENTS OBTAINED BEFORE ENACTMENT

4 OF DETAINEE TREATMENT ACT OF 2005.—A statement

5 obtained before December 30, 2005 (the date of the enact6 ment of the Defense Treatment Act of 2005) in which the

7 degree of coercion is disputed may be admitted only if the

8 military judge finds that—

9 ‘‘(1) the totality of the circumstances renders

10 the statement reliable and possessing sufficient pro11 bative value; and

12 ‘‘(2) the interests of justice would best be

13 served by admission of the statement into evidence.

14 ‘‘(d) STATEMENTS OBTAINED AFTER ENACTMENT

15 OF DETAINEE TREATMENT ACT OF 2005.—A statement

16 obtained on or after December 30, 2005 (the date of the

17 enactment of the Defense Treatment Act of 2005) in

18 which the degree of coercion is disputed may be admitted

19 only if the military judge finds that—

20 ‘‘(1) the totality of the circumstances renders

21 the statement reliable and possessing sufficient pro22 bative value;

23 ‘‘(2) the interests of justice would best be

24 served by admission of the statement into evidence;

25 and
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1 ‘‘(3) the interrogation methods used to obtain

2 the statement do not amount to cruel, inhuman, or

3 degrading treatment prohibited by section 1003 of

4 the Detainee Treatment Act of 2005.

5 ‘‘§ 948s. Service of charges

6 ‘‘The trial counsel assigned to a case before a military

7 commission under this chapter shall cause to be served

8 upon the accused and military defense counsel a copy of

9 the charges upon which trial is to be had. Such charges

10 shall be served in English and, if appropriate, in another

11 language that the accused understands. Such service shall

12 be made sufficiently in advance of trial to prepare a de13 fense.

14 ‘‘SUBCHAPTER IV—TRIAL PROCEDURE

‘‘Sec.

‘‘949a. Rules.

‘‘949b. Unlawfully influencing action of military commission.

‘‘949c. Duties of trial counsel and defense counsel.

‘‘949d. Sessions.

‘‘949e. Continuances.

‘‘949f. Challenges.

‘‘949g. Oaths.

‘‘949h. Former jeopardy.

‘‘949i. Pleas of the accused.

‘‘949j. Opportunity to obtain witnesses and other evidence.

‘‘949k. Defense of lack of mental responsibility.

‘‘949l. Voting and rulings.

‘‘949m. Number of votes required.

‘‘949n. Military commission to announce action.

‘‘949o. Record of trial.

15 ‘‘§ 949a. Rules

16 ‘‘(a) PROCEDURES AND RULES OF EVIDENCE.—Pre17 trial, trial, and post-trial procedures, including elements

18 and modes of proof, for cases triable by military commis-
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1 sion under this chapter may be prescribed by the Secretary

2 of Defense, in consultation with the Attorney General.

3 Such procedures shall, so far as the Secretary considers

4 practicable or consistent with military or intelligence ac5 tivities, apply the principles of law and the rules of evi6 dence in trial by general courts-martial. Such procedures

7 and rules of evidence may not be contrary to or incon8 sistent with this chapter.

9 ‘‘(b) RULES FOR MILITARY COMMISSION.—(1) Not10 withstanding any departures from the law and the rules

11 of evidence in trial by general courts-martial authorized

12 by subsection (a), the procedures and rules of evidence in

13 trials by military commission under this chapter shall in14 clude the following:

15 ‘‘(A) The accused shall be permitted to present

16 evidence in his defense, to cross-examine the wit17 nesses who testify against him, and to examine and

18 respond to evidence admitted against him on the

19 issue of guilt or innocence and for sentencing, as

20 provided for by this chapter.

21 ‘‘(B) The accused shall be present at all ses22 sions of the military commission (other than those

23 for deliberations or voting), except when excluded

24 under section 949d of this title.
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1 ‘‘(C) The accused shall receive the assistance of

2 counsel as provided for by section 948k.

3 ‘‘(D) The accused shall be permitted to rep4 resent himself, as provided for by paragraph (3).

5 ‘‘(2) In establishing procedures and rules of evidence

6 for military commission proceedings, the Secretary of De7 fense may prescribe the following provisions:

8 ‘‘(A) Evidence shall be admissible if the mili9 tary judge determines that the evidence would have

10 probative value to a reasonable person.

11 ‘‘(B) Evidence shall not be excluded from trial

12 by military commission on the grounds that the evi13 dence was not seized pursuant to a search warrant

14 or other authorization.

15 ‘‘(C) A statement of the accused that is other16 wise admissible shall not be excluded from trial by

17 military commission on grounds of alleged coercion

18 or compulsory self-incrimination so long as the evi19 dence complies with the provisions of section 948r of

20 this title.

21 ‘‘(D) Evidence shall be admitted as authentic so

22 long as—

23 ‘‘(i) the military judge of the military com24 mission determines that there is sufficient basis
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1 to find that the evidence is what it is claimed

2 to be; and

3 ‘‘(ii) the military judge instructs the mem4 bers that they may consider any issue as to au5 thentication or identification of evidence in de6 termining the weight, if any, to be given to the

7 evidence.

8 ‘‘(E)(i) Except as provided in clause (ii), hear9 say evidence not otherwise admissible under the

10 rules of evidence applicable in trial by general

11 courts-martial may be admitted in a trial by military

12 commission if the proponent of the evidence makes

13 known to the adverse party, sufficiently in advance

14 to provide the adverse party with a fair opportunity

15 to meet the evidence, the intention of the proponent

16 to offer the evidence, and the particulars of the evi17 dence (including information on the general cir18 cumstances under which the evidence was obtained).

19 The disclosure of evidence under the preceding sen20 tence is subject to the requirements and limitations

21 applicable to the disclosure of classified information

22 in section 949j(c) of this title.

23 ‘‘(ii) Hearsay evidence not otherwise admissible

24 under the rules of evidence applicable in trial by

25 general courts-martial shall not be admitted in a
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1 trial by military commission if the party opposing

2 the admission of the evidence demonstrates that the

3 evidence is unreliable or lacking in probative value.

4 ‘‘(F) The military judge shall exclude any evi5 dence the probative value of which is substantially

6 outweighed—

7 ‘‘(i) by the danger of unfair prejudice, con8 fusion of the issues, or misleading the commis9 sion; or

10 ‘‘(ii) by considerations of undue delay,

11 waste of time, or needless presentation of cu12 mulative evidence.

13 ‘‘(3)(A) The accused in a military commission under

14 this chapter who exercises the right to self-representation

15 under paragraph (1)(D) shall conform his deportment and

16 the conduct of the defense to the rules of evidence, proce17 dure, and decorum applicable to trials by military commis18 sion.

19 ‘‘(B) Failure of the accused to conform to the rules

20 described in subparagraph (A) may result in a partial or

21 total revocation by the military judge of the right of self22 representation under paragraph (1)(D). In such case, the

23 detailed defense counsel of the accused or an appropriately

24 authorized civilian counsel shall perform the functions nec25 essary for the defense.
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1 ‘‘(c) DELEGATION OF AUTHORITY TO PRESCRIBE

2 REGULATIONS.—The Secretary of Defense may delegate

3 the authority of the Secretary to prescribe regulations

4 under this chapter.

5 ‘‘(d) NOTIFICATION TO CONGRESSIONAL COMMIT6 TEES OF CHANGES TO PROCEDURES.—Not later than 60

7 days before the date on which any proposed modification

8 of the procedures in effect for military commissions under

9 this chapter goes into effect, the Secretary of Defense

10 shall submit to the Committee on Armed Services of the

11 Senate and the Committee on Armed Services of the

12 House of Representatives a report describing the modifica13 tion.

14 ‘‘§ 949b. Unlawfully influencing action of military

15 commission

16 ‘‘(a) IN GENERAL.—(1) No authority convening a

17 military commission under this chapter may censure, rep18 rimand, or admonish the military commission, or any

19 member, military judge, or counsel thereof, with respect

20 to the findings or sentence adjudged by the military com21 mission, or with respect to any other exercises of its or

22 his functions in the conduct of the proceedings.

23 ‘‘(2) No person may attempt to coerce or, by any un24 authorized means, influence—
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1 ‘‘(A) the action of a military commission under

2 this chapter, or any member thereof, in reaching the

3 findings or sentence in any case;

4 ‘‘(B) the action of any convening, approving, or

5 reviewing authority with respect to his judicial acts;

6 or

7 ‘‘(C) the exercise of professional judgment by

8 trial counsel or defense counsel.

9 ‘‘(3) Paragraphs (1) and (2) do not apply with re10 spect to—

11 ‘‘(A) general instructional or informational

12 courses in military justice if such courses are de13 signed solely for the purpose of instructing members

14 of a command in the substantive and procedural as15 pects of military commissions; or

16 ‘‘(B) statements and instructions given in open

17 proceedings by a military judge or counsel.

18 ‘‘(b) PROHIBITION ON CONSIDERATION OF ACTIONS

19 ON COMMISSION IN EVALUATION OF FITNESS.—In the

20 preparation of an effectiveness, fitness, or efficiency report

21 or any other report or document used in whole or in part

22 for the purpose of determining whether a commissioned

23 officer of the armed forces is qualified to be advanced in

24 grade, or in determining the assignment or transfer of any
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1 such officer or whether any such officer should be retained

2 on active duty, no person may—

3 ‘‘(1) consider or evaluate the performance of

4 duty of any member of a military commission under

5 this chapter; or

6 ‘‘(2) give a less favorable rating or evaluation

7 to any commissioned officer because of the zeal with

8 which such officer, in acting as counsel, represented

9 any accused before a military commission under this

10 chapter.

11 ‘‘§ 949c. Duties of trial counsel and defense counsel

12 ‘‘(a) TRIAL COUNSEL.—The trial counsel of a mili13 tary commission under this chapter shall prosecute in the

14 name of the United States.

15 ‘‘(b) DEFENSE COUNSEL.—(1) The accused shall be

16 represented in his defense before a military commission

17 under this chapter as provided in this subsection.

18 ‘‘(2) The accused shall be represented by military

19 counsel detailed under section 948k of this title.

20 ‘‘(3) The accused may be represented by civilian

21 counsel if retained by the accused, but only if such civilian

22 counsel—

23 ‘‘(A) is a United States citizen;
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1 ‘‘(B) is admitted to the practice of law in a

2 State, district, or possession of the United States or

3 before a Federal court;

4 ‘‘(C) has not been the subject of any sanction

5 of disciplinary action by any court, bar, or other

6 competent governmental authority for relevant mis7 conduct;

8 ‘‘(D) has been determined to be eligible for ac9 cess to classified information that is classified at the

10 level Secret or higher; and

11 ‘‘(E) has signed a written agreement to comply

12 with all applicable regulations or instructions for

13 counsel, including any rules of court for conduct

14 during the proceedings.

15 ‘‘(4) Civilian defense counsel shall protect any classi16 fied information received during the course of representa17 tion of the accused in accordance with all applicable law

18 governing the protection of classified information and may

19 not divulge such information to any person not authorized

20 to receive it.

21 ‘‘(5) If the accused is represented by civilian counsel,

22 detailed military counsel shall act as associate counsel.

23 ‘‘(6) The accused is not entitled to be represented by

24 more than one military counsel. However, the person au25 thorized under regulations prescribed under section 948k
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1 of this title to detail counsel, in that person’s sole discre2 tion, may detail additional military counsel to represent

3 the accused.

4 ‘‘(7) Defense counsel may cross-examine each witness

5 for the prosecution who testifies before a military commis6 sion under this chapter.

7 ‘‘§ 949d. Sessions

8 ‘‘(a) SESSIONS WITHOUT PRESENCE OF MEM9 BERS.—(1) At any time after the service of charges which

10 have been referred for trial by military commission under

11 this chapter, the military judge may call the military com12 mission into session without the presence of the members

13 for the purpose of—

14 ‘‘(A) hearing and determining motions raising

15 defenses or objections which are capable of deter16 mination without trial of the issues raised by a plea

17 of not guilty;

18 ‘‘(B) hearing and ruling upon any matter which

19 may be ruled upon by the military judge under this

20 chapter, whether or not the matter is appropriate for

21 later consideration or decision by the members;

22 ‘‘(C) if permitted by regulations prescribed by

23 the Secretary of Defense, receiving the pleas of the

24 accused; and
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1 ‘‘(D) performing any other procedural function

2 which may be performed by the military judge under

3 this chapter or under rules prescribed pursuant to

4 section 949a of this title and which does not require

5 the presence of the members.

6 ‘‘(2) Except as provided in subsections (c) and (e),

7 any proceedings under paragraph (1) shall—

8 ‘‘(A) be conducted in the presence of the ac9 cused, defense counsel, and trial counsel; and

10 ‘‘(B) be made part of the record.

11 ‘‘(b) PROCEEDINGS IN PRESENCE OF ACCUSED.—

12 Except as provided in subsections (c) and (e), all pro13 ceedings of a military commission under this chapter, in14 cluding any consultation of the members with the military

15 judge or counsel, shall—

16 ‘‘(1) be in the presence of the accused, defense

17 counsel, and trial counsel; and

18 ‘‘(2) be made a part of the record.

19 ‘‘(c) DELIBERATION OR VOTE OF MEMBERS.—When

20 the members of a military commission under this chapter

21 deliberate or vote, only the members may be present.

22 ‘‘(d) CLOSURE OF PROCEEDINGS.—(1) The military

23 judge may close to the public all or part of the proceedings

24 of a military commission under this chapter, but only in

25 accordance with this subsection.
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1 ‘‘(2) The military judge may close to the public all

2 or a portion of the proceedings under paragraph (1) only

3 upon making a specific finding that such closure is nec4 essary to—

5 ‘‘(A) protect information the disclosure of which

6 could reasonably be expected to cause damage to the

7 national security, including intelligence or law en8 forcement sources, methods, or activities; or

9 ‘‘(B) ensure the physical safety of individuals.

10 ‘‘(3) A finding under paragraph (2) may be based

11 upon a presentation, including a presentation ex parte or

12 in camera, by either trial counsel or defense counsel.

13 ‘‘(e) EXCLUSION OF ACCUSED FROM CERTAIN PRO14 CEEDINGS.—The military judge may exclude the accused

15 from any portion of a proceeding upon a determination

16 that, after being warned by the military judge, the accused

17 persists in conduct that justifies exclusion from the

18 courtroom—

19 ‘‘(1) to ensure the physical safety of individuals;

20 or

21 ‘‘(2) to prevent disruption of the proceedings by

22 the accused.

23 ‘‘(f) PROTECTION OF CLASSIFIED INFORMATION.—

24 ‘‘(1) NATIONAL SECURITY PRIVILEGE.—(A)

25 Classified information shall be protected and is privi-
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1 leged from disclosure if disclosure would be detri2 mental to the national security. The rule in the pre3 ceding sentence applies to all stages of the pro4 ceedings of military commissions under this chapter.

5 ‘‘(B) The privilege referred to in subparagraph

6 (A) may be claimed by the head of the executive or

7 military department or government agency con8 cerned based on a finding by the head of that de9 partment or agency that—

10 ‘‘(i) the information is properly classified;

11 and

12 ‘‘(ii) disclosure of the information would be

13 detrimental to the national security.

14 ‘‘(C) A person who may claim the privilege re15 ferred to in subparagraph (A) may authorize a rep16 resentative, witness, or trial counsel to claim the

17 privilege and make the finding described in subpara18 graph (B) on behalf of such person. The authority

19 of the representative, witness, or trial counsel to do

20 so is presumed in the absence of evidence to the con21 trary.

22 ‘‘(2) INTRODUCTION OF CLASSIFIED INFORMA23 TION.—

24 ‘‘(A) ALTERNATIVES TO DISCLOSURE.—To

25 protect classified information from disclosure,
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1 the military judge, upon motion of trial counsel,

2 shall authorize, to the extent practicable—

3 ‘‘(i) the deletion of specified items of

4 classified information from documents to

5 be introduced as evidence before the mili6 tary commission;

7 ‘‘(ii) the substitution of a portion or

8 summary of the information for such clas9 sified documents; or

10 ‘‘(iii) the substitution of a statement

11 of relevant facts that the classified infor12 mation would tend to prove.

13 ‘‘(B) PROTECTION OF SOURCES, METHODS,

14 OR ACTIVITIES.—The military judge, upon mo15 tion of trial counsel, shall permit trial counsel

16 to introduce otherwise admissible evidence be17 fore the military commission, while protecting

18 from disclosure the sources, methods, or activi19 ties by which the United States acquired the

20 evidence if the military judge finds that (i) the

21 sources, methods, or activities by which the

22 United States acquired the evidence are classi23 fied, and (ii) the evidence is reliable. The mili24 tary judge may require trial counsel to present

25 to the military commission and the defense, to
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1 the extent practicable and consistent with na2 tional security, an unclassified summary of the

3 sources, methods, or activities by which the

4 United States acquired the evidence.

5 ‘‘(C) ASSERTION OF NATIONAL SECURITY

6 PRIVILEGE AT TRIAL.—During the examination

7 of any witness, trial counsel may object to any

8 question, line of inquiry, or motion to admit evi9 dence that would require the disclosure of clas10 sified information. Following such an objection,

11 the military judge shall take suitable action to

12 safeguard such classified information. Such ac13 tion may include the review of trial counsel’s

14 claim of privilege by the military judge in cam15 era and on an ex parte basis, and the delay of

16 proceedings to permit trial counsel to consult

17 with the department or agency concerned as to

18 whether the national security privilege should

19 be asserted.

20 ‘‘(3) CONSIDERATION OF PRIVILEGE AND RE21 LATED MATERIALS.—A claim of privilege under this

22 subsection, and any materials submitted in support

23 thereof, shall, upon request of the Government, be

24 considered by the military judge in camera and shall

25 not be disclosed to the accused.
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1 ‘‘(4) ADDITIONAL REGULATIONS.—The Sec2 retary of Defense may prescribe additional regula3 tions, consistent with this subsection, for the use

4 and protection of classified information during pro5 ceedings of military commissions under this chapter.

6 A report on any regulations so prescribed, or modi7 fied, shall be submitted to the Committees on Armed

8 Services of the Senate and the House of Representa9 tives not later than 60 days before the date on which

10 such regulations or modifications, as the case may

11 be, go into effect.

12 ‘‘§ 949e. Continuances

13 ‘‘The military judge in a military commission under

14 this chapter may, for reasonable cause, grant a continu15 ance to any party for such time, and as often, as may

16 appear to be just.

17 ‘‘§ 949f. Challenges

18 ‘‘(a) CHALLENGES AUTHORIZED.—The military

19 judge and members of a military commission under this

20 chapter may be challenged by the accused or trial counsel

21 for cause stated to the commission. The military judge

22 shall determine the relevance and validity of challenges for

23 cause. The military judge may not receive a challenge to

24 more than one person at a time. Challenges by trial coun-
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1 sel shall ordinarily be presented and decided before those

2 by the accused are offered.

3 ‘‘(b) PEREMPTORY CHALLENGES.—Each accused

4 and the trial counsel are entitled to one peremptory chal5 lenge. The military judge may not be challenged except

6 for cause.

7 ‘‘(c) CHALLENGES AGAINST ADDITIONAL MEM8 BERS.—Whenever additional members are detailed to a

9 military commission under this chapter, and after any

10 challenges for cause against such additional members are

11 presented and decided, each accused and the trial counsel

12 are entitled to one peremptory challenge against members

13 not previously subject to peremptory challenge.

14 ‘‘§ 949g. Oaths

15 ‘‘(a) IN GENERAL.—(1) Before performing their re16 spective duties in a military commission under this chap17 ter, military judges, members, trial counsel, defense coun18 sel, reporters, and interpreters shall take an oath to per19 form their duties faithfully.

20 ‘‘(2) The form of the oath required by paragraph (1),

21 the time and place of the taking thereof, the manner of

22 recording the same, and whether the oath shall be taken

23 for all cases in which duties are to be performed or for

24 a particular case, shall be as prescribed in regulations of
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1 the Secretary of Defense. Those regulations may provide

2 that—

3 ‘‘(A) an oath to perform faithfully duties as a

4 military judge, trial counsel, or defense counsel may

5 be taken at any time by any judge advocate or other

6 person certified to be qualified or competent for the

7 duty; and

8 ‘‘(B) if such an oath is taken, such oath need

9 not again be taken at the time the judge advocate

10 or other person is detailed to that duty.

11 ‘‘(b) WITNESSES.—Each witness before a military

12 commission under this chapter shall be examined on oath.

13 ‘‘§ 949h. Former jeopardy

14 ‘‘(a) IN GENERAL.—No person may, without his con15 sent, be tried by a military commission under this chapter

16 a second time for the same offense.

17 ‘‘(b) SCOPE OF TRIAL.—No proceeding in which the

18 accused has been found guilty by military commission

19 under this chapter upon any charge or specification is a

20 trial in the sense of this section until the finding of guilty

21 has become final after review of the case has been fully

22 completed.

23 ‘‘§ 949i. Pleas of the accused

24 ‘‘(a) ENTRY OF PLEA OF NOT GUILTY.—If an ac25 cused in a military commission under this chapter after
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1 a plea of guilty sets up matter inconsistent with the plea,

2 or if it appears that the accused has entered the plea of

3 guilty through lack of understanding of its meaning and

4 effect, or if the accused fails or refuses to plead, a plea

5 of not guilty shall be entered in the record, and the mili6 tary commission shall proceed as though the accused had

7 pleaded not guilty.

8 ‘‘(b) FINDING OF GUILT AFTER GUILTY PLEA.—

9 With respect to any charge or specification to which a plea

10 of guilty has been made by the accused in a military com11 mission under this chapter and accepted by the military

12 judge, a finding of guilty of the charge or specification

13 may be entered immediately without a vote. The finding

14 shall constitute the finding of the commission unless the

15 plea of guilty is withdrawn prior to announcement of the

16 sentence, in which event the proceedings shall continue as

17 though the accused had pleaded not guilty.

18 ‘‘§ 949j. Opportunity to obtain witnesses and other

19 evidence

20 ‘‘(a) RIGHT OF DEFENSE COUNSEL.—Defense coun21 sel in a military commission under this chapter shall have

22 a reasonable opportunity to obtain witnesses and other evi23 dence as provided in regulations prescribed by the Sec24 retary of Defense.
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1 ‘‘(b) PROCESS FOR COMPULSION.—Process issued in

2 a military commission under this chapter to compel wit3 nesses to appear and testify and to compel the production

4 of other evidence—

5 ‘‘(1) shall be similar to that which courts of the

6 United States having criminal jurisdiction may law7 fully issue; and

8 ‘‘(2) shall run to any place where the United

9 States shall have jurisdiction thereof.

10 ‘‘(c) PROTECTION OF CLASSIFIED INFORMATION.—

11 (1) With respect to the discovery obligations of trial coun12 sel under this section, the military judge, upon motion of

13 trial counsel, shall authorize, to the extent practicable—

14 ‘‘(A) the deletion of specified items of classified

15 information from documents to be made available to

16 the accused;

17 ‘‘(B) the substitution of a portion or summary

18 of the information for such classified documents; or

19 ‘‘(C) the substitution of a statement admitting

20 relevant facts that the classified information would

21 tend to prove.

22 ‘‘(2) The military judge, upon motion of trial counsel,

23 shall authorize trial counsel, in the course of complying

24 with discovery obligations under this section, to protect

25 from disclosure the sources, methods, or activities by
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1 which the United States acquired evidence if the military

2 judge finds that the sources, methods, or activities by

3 which the United States acquired such evidence are classi4 fied. The military judge may require trial counsel to pro5 vide, to the extent practicable, an unclassified summary

6 of the sources, methods, or activities by which the United

7 States acquired such evidence.

8 ‘‘(d) EXCULPATORY EVIDENCE.—(1) As soon as

9 practicable, trial counsel shall disclose to the defense the

10 existence of any evidence known to trial counsel that rea11 sonably tends to exculpate the accused. Where exculpatory

12 evidence is classified, the accused shall be provided with

13 an adequate substitute in accordance with the procedures

14 under subsection (c).

15 ‘‘(2) In this subsection, the term ‘evidence known to

16 trial counsel’, in the case of exculpatory evidence, means

17 exculpatory evidence that the prosecution would be re18 quired to disclose in a trial by general court-martial under

19 chapter 47 of this title.

20 ‘‘§ 949k. Defense of lack of mental responsibility

21 ‘‘(a) AFFIRMATIVE DEFENSE.—It is an affirmative

22 defense in a trial by military commission under this chap23 ter that, at the time of the commission of the acts consti24 tuting the offense, the accused, as a result of a severe

25 mental disease or defect, was unable to appreciate the na-
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1 ture and quality or the wrongfulness of the acts. Mental

2 disease or defect does not otherwise constitute a defense.

3 ‘‘(b) BURDEN OF PROOF.—The accused in a military

4 commission under this chapter has the burden of proving

5 the defense of lack of mental responsibility by clear and

6 convincing evidence.

7 ‘‘(c) FINDINGS FOLLOWING ASSERTION OF DE8 FENSE.—Whenever lack of mental responsibility of the ac9 cused with respect to an offense is properly at issue in

10 a military commission under this chapter, the military

11 judge shall instruct the members of the commission as to

12 the defense of lack of mental responsibility under this sec13 tion and shall charge them to find the accused—

14 ‘‘(1) guilty;

15 ‘‘(2) not guilty; or

16 ‘‘(3) subject to subsection (d), not guilty by rea17 son of lack of mental responsibility.

18 ‘‘(d) MAJORITY VOTE REQUIRED FOR FINDING.—

19 The accused shall be found not guilty by reason of lack

20 of mental responsibility under subsection (c)(3) only if a

21 majority of the members present at the time the vote is

22 taken determines that the defense of lack of mental re23 sponsibility has been established.
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1 ‘‘§ 949l. Voting and rulings

2 ‘‘(a) VOTE BY SECRET WRITTEN BALLOT.—Voting

3 by members of a military commission under this chapter

4 on the findings and on the sentence shall be by secret writ5 ten ballot.

6 ‘‘(b) RULINGS.—(1) The military judge in a military

7 commission under this chapter shall rule upon all ques8 tions of law, including the admissibility of evidence and

9 all interlocutory questions arising during the proceedings.

10 ‘‘(2) Any ruling made by the military judge upon a

11 question of law or an interlocutory question (other than

12 the factual issue of mental responsibility of the accused)

13 is conclusive and constitutes the ruling of the military

14 commission. However, a military judge may change his

15 ruling at any time during the trial.

16 ‘‘(c) INSTRUCTIONS PRIOR TO VOTE.—Before a vote

17 is taken of the findings of a military commission under

18 this chapter, the military judge shall, in the presence of

19 the accused and counsel, instruct the members as to the

20 elements of the offense and charge the members—

21 ‘‘(1) that the accused must be presumed to be

22 innocent until his guilt is established by legal and

23 competent evidence beyond a reasonable doubt;

24 ‘‘(2) that in the case being considered, if there

25 is a reasonable doubt as to the guilt of the accused,
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1 the doubt must be resolved in favor of the accused

2 and he must be acquitted;

3 ‘‘(3) that, if there is reasonable doubt as to the

4 degree of guilt, the finding must be in a lower de5 gree as to which there is no reasonable doubt; and

6 ‘‘(4) that the burden of proof to establish the

7 guilt of the accused beyond a reasonable doubt is

8 upon the United States.

9 ‘‘§ 949m. Number of votes required

10 ‘‘(a) CONVICTION.—No person may be convicted by

11 a military commission under this chapter of any offense,

12 except as provided in section 949i(b) of this title or by

13 concurrence of two-thirds of the members present at the

14 time the vote is taken.

15 ‘‘(b) SENTENCES.—(1) No person may be sentenced

16 by a military commission to suffer death, except insofar

17 as—

18 ‘‘(A) the penalty of death is expressly author19 ized under this chapter or the law of war for an of20 fense of which the accused has been found guilty;

21 ‘‘(B) trial counsel expressly sought the penalty

22 of death by filing an appropriate notice in advance

23 of trial;
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1 ‘‘(C) the accused is convicted of the offense by

2 the concurrence of all the members present at the

3 time the vote is taken; and

4 ‘‘(D) all the members present at the time the

5 vote is taken concur in the sentence of death.

6 ‘‘(2) No person may be sentenced to life imprison7 ment, or to confinement for more than 10 years, by a mili8 tary commission under this chapter except by the concur9 rence of three-fourths of the members present at the time

10 the vote is taken.

11 ‘‘(3) All other sentences shall be determined by a

12 military commission by the concurrence of two-thirds of

13 the members present at the time the vote is taken.

14 ‘‘(c) NUMBER OF MEMBERS REQUIRED FOR PEN15 ALTY OF DEATH.—(1) Except as provided in paragraph

16 (2), in a case in which the penalty of death is sought, the

17 number of members of the military commission under this

18 chapter shall be not less than 12.

19 ‘‘(2) In any case described in paragraph (1) in which

20 12 members are not reasonably available because of phys21 ical conditions or military exigencies, the convening au22 thority shall specify a lesser number of members for the

23 military commission (but not fewer than 9 members), and

24 the military commission may be assembled, and the trial

25 held, with not fewer than the number of members so speci-
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1 fied. In such a case, the convening authority shall make

2 a detailed written statement, to be appended to the record,

3 stating why a greater number of members were not rea4 sonably available.

5 ‘‘§ 949n. Military commission to announce action

6 ‘‘A military commission under this chapter shall an7 nounce its findings and sentence to the parties as soon

8 as determined.

9 ‘‘§ 949o. Record of trial

10 ‘‘(a) RECORD; AUTHENTICATION.—Each military

11 commission under this chapter shall keep a separate, ver12 batim, record of the proceedings in each case brought be13 fore it, and the record shall be authenticated by the signa14 ture of the military judge. If the record cannot be authen15 ticated by the military judge by reason of his death, dis16 ability, or absence, it shall be authenticated by the signa17 ture of the trial counsel or by a member of the commission

18 if the trial counsel is unable to authenticate it by reason

19 of his death, disability, or absence. Where appropriate,

20 and as provided in regulations prescribed by the Secretary

21 of Defense, the record of a military commission under this

22 chapter may contain a classified annex.

23 ‘‘(b) COMPLETE RECORD REQUIRED.—A complete

24 record of the proceedings and testimony shall be prepared

25 in every military commission under this chapter.
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1 ‘‘(c) PROVISION OF COPY TO ACCUSED.—A copy of

2 the record of the proceedings of the military commission

3 under this chapter shall be given the accused as soon as

4 it is authenticated. If the record contains classified infor5 mation, or a classified annex, the accused shall be given

6 a redacted version of the record consistent with the re7 quirements of section 949d of this title. Defense counsel

8 shall have access to the unredacted record, as provided

9 in regulations prescribed by the Secretary of Defense.

10 ‘‘SUBCHAPTER V—SENTENCES

‘‘Sec.

‘‘949s. Cruel or unusual punishments prohibited.

‘‘949t. Maximum limits.

‘‘949u. Execution of confinement.

11 ‘‘§ 949s. Cruel or unusual punishments prohibited

12 ‘‘Punishment by flogging, or by branding, marking,

13 or tattooing on the body, or any other cruel or unusual

14 punishment, may not be adjudged by a military commis15 sion under this chapter or inflicted under this chapter

16 upon any person subject to this chapter. The use of irons,

17 single or double, except for the purpose of safe custody,

18 is prohibited under this chapter.

19 ‘‘§ 949t. Maximum limits

20 ‘‘The punishment which a military commission under

21 this chapter may direct for an offense may not exceed such

22 limits as the President or Secretary of Defense may pre23 scribe for that offense.
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1 ‘‘§ 949u. Execution of confinement

2 ‘‘(a) IN GENERAL.—Under such regulations as the

3 Secretary of Defense may prescribe, a sentence of confine4 ment adjudged by a military commission under this chap5 ter may be carried into execution by confinement—

6 ‘‘(1) in any place of confinement under the con7 trol of any of the armed forces; or

8 ‘‘(2) in any penal or correctional institution

9 under the control of the United States or its allies,

10 or which the United States may be allowed to use.

11 ‘‘(b) TREATMENT DURING CONFINEMENT BY OTHER

12 THAN THE ARMED FORCES.—Persons confined under

13 subsection (a)(2) in a penal or correctional institution not

14 under the control of an armed force are subject to the

15 same discipline and treatment as persons confined or com16 mitted by the courts of the United States or of the State,

17 District of Columbia, or place in which the institution is

18 situated.

19 ‘‘SUBCHAPTER VI—POST-TRIAL PROCEDURE

20 AND REVIEW OF MILITARY COMMISSIONS

‘‘Sec.

‘‘950a. Error of law; lesser included offense.

‘‘950b. Review by the convening authority.

‘‘950c. Appellate referral; waiver or withdrawal of appeal.

‘‘950d. Appeal by the United States.

‘‘950e. Rehearings.

‘‘950f. Review by Court of Military Commission Review.

‘‘950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court.

‘‘950h. Appellate counsel.
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‘‘950i. Execution of sentence; procedures for execution of sentence of death.

‘‘950j. Finality or proceedings, findings, and sentences.

1 ‘‘§ 950a. Error of law; lesser included offense

2 ‘‘(a) ERROR OF LAW.—A finding or sentence of a

3 military commission under this chapter may not be held

4 incorrect on the ground of an error of law unless the error

5 materially prejudices the substantial rights of the accused.

6 ‘‘(b) LESSER INCLUDED OFFENSE.—Any reviewing

7 authority with the power to approve or affirm a finding

8 of guilty by a military commission under this chapter may

9 approve or affirm, instead, so much of the finding as in10 cludes a lesser included offense.

11 ‘‘§ 950b. Review by the convening authority

12 ‘‘(a) NOTICE TO CONVENING AUTHORITY OF FIND13 INGS AND SENTENCE.—The findings and sentence of a

14 military commission under this chapter shall be reported

15 in writing promptly to the convening authority after the

16 announcement of the sentence.

17 ‘‘(b) SUBMITTAL OF MATTERS BY ACCUSED TO CON18 VENING AUTHORITY.—(1) The accused may submit to the

19 convening authority matters for consideration by the con20 vening authority with respect to the findings and the sen21 tence of the military commission under this chapter.

22 ‘‘(2)(A) Except as provided in subparagraph (B), a

23 submittal under paragraph (1) shall be made in writing

24 within 20 days after the accused has been given an au-
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1 thenticated record of trial under section 949o(c) of this

2 title.

3 ‘‘(B) If the accused shows that additional time is re4 quired for the accused to make a submittal under para5 graph (1), the convening authority may, for good cause,

6 extend the applicable period under subparagraph (A) for

7 not more than an additional 20 days.

8 ‘‘(3) The accused may waive his right to make a sub9 mittal to the convening authority under paragraph (1).

10 Such a waiver shall be made in writing and may not be

11 revoked. For the purposes of subsection (c)(2), the time

12 within which the accused may make a submittal under this

13 subsection shall be deemed to have expired upon the sub14 mittal of a waiver under this paragraph to the convening

15 authority.

16 ‘‘(c) ACTION BY CONVENING AUTHORITY.—(1) The

17 authority under this subsection to modify the findings and

18 sentence of a military commission under this chapter is

19 a matter of the sole discretion and prerogative of the con20 vening authority.

21 ‘‘(2)(A) The convening authority shall take action on

22 the sentence of a military commission under this chapter.

23 ‘‘(B) Subject to regulations prescribed by the Sec24 retary of Defense, action on the sentence under this para25 graph may be taken only after consideration of any mat-
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1 ters submitted by the accused under subsection (b) or

2 after the time for submitting such matters expires, which3 ever is earlier.

4 ‘‘(C) In taking action under this paragraph, the con5 vening authority may, in his sole discretion, approve, dis6 approve, commute, or suspend the sentence in whole or

7 in part. The convening authority may not increase a sen8 tence beyond that which is found by the military commis9 sion.

10 ‘‘(3) The convening authority is not required to take

11 action on the findings of a military commission under this

12 chapter. If the convening authority takes action on the

13 findings, the convening authority may, in his sole discre14 tion, may—

15 ‘‘(A) dismiss any charge or specification by set16 ting aside a finding of guilty thereto; or

17 ‘‘(B) change a finding of guilty to a charge to

18 a finding of guilty to an offense that is a lesser in19 cluded offense of the offense stated in the charge.

20 ‘‘(4) The convening authority shall serve on the ac21 cused or on defense counsel notice of any action taken by

22 the convening authority under this subsection.

23 ‘‘(d) ORDER OF REVISION OR REHEARING.—(1) Sub24 ject to paragraphs (2) and (3), the convening authority

25 of a military commission under this chapter may, in his
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1 sole discretion, order a proceeding in revision or a rehear2 ing.

3 ‘‘(2)(A) Except as provided in subparagraph (B), a

4 proceeding in revision may be ordered by the convening

5 authority if—

6 ‘‘(i) there is an apparent error or omission in

7 the record; or

8 ‘‘(ii) the record shows improper or inconsistent

9 action by the military commission with respect to

10 the findings or sentence that can be rectified without

11 material prejudice to the substantial rights of the

12 accused.

13 ‘‘(B) In no case may a proceeding in revision—

14 ‘‘(i) reconsider a finding of not guilty of a spec15 ification or a ruling which amounts to a finding of

16 not guilty;

17 ‘‘(ii) reconsider a finding of not guilty of any

18 charge, unless there has been a finding of guilty

19 under a specification laid under that charge, which

20 sufficiently alleges a violation; or

21 ‘‘(iii) increase the severity of the sentence un22 less the sentence prescribed for the offense is man23 datory.

24 ‘‘(3) A rehearing may be ordered by the convening

25 authority if the convening authority disapproves the find-
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1 ings and sentence and states the reasons for disapproval

2 of the findings. If the convening authority disapproves the

3 finding and sentence and does not order a rehearing, the

4 convening authority shall dismiss the charges. A rehearing

5 as to the findings may not be ordered by the convening

6 authority when there is a lack of sufficient evidence in the

7 record to support the findings. A rehearing as to the sen8 tence may be ordered by the convening authority if the

9 convening authority disapproves the sentence.

10 ‘‘§ 950c. Appellate referral; waiver or withdrawal of

11 appeal

12 ‘‘(a) AUTOMATIC REFERRAL FOR APPELLATE RE13 VIEW.—Except as provided under subsection (b), in each

14 case in which the final decision of a military commission

15 (as approved by the convening authority) includes a find16 ing of guilty, the convening authority shall refer the case

17 to the Court of Military Commission Review. Any such re18 ferral shall be made in accordance with procedures pre19 scribed under regulations of the Secretary.

20 ‘‘(b) WAIVER OF RIGHT OF REVIEW.—(1) In each

21 case subject to appellate review under section 950f of this

22 title, except a case in which the sentence as approved

23 under section 950b of this title extends to death, the ac24 cused may file with the convening authority a statement

25 expressly waiving the right of the accused to such review.
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1 ‘‘(2) A waiver under paragraph (1) shall be signed

2 by both the accused and a defense counsel.

3 ‘‘(3) A waiver under paragraph (1) must be filed, if

4 at all, within 10 days after notice on the action is served

5 on the accused or on defense counsel under section

6 950b(c)(4) of this title. The convening authority, for good

7 cause, may extend the period for such filing by not more

8 than 30 days.

9 ‘‘(c) WITHDRAWAL OF APPEAL.—Except in a case in

10 which the sentence as approved under section 950b of this

11 title extends to death, the accused may withdraw an ap12 peal at any time.

13 ‘‘(d) EFFECT OF WAIVER OR WITHDRAWAL.—A

14 waiver of the right to appellate review or the withdrawal

15 of an appeal under this section bars review under section

16 950f of this title.

17 ‘‘§ 950d. Appeal by the United States

18 ‘‘(a) INTERLOCUTORY APPEAL.—(1) Except as pro19 vided in paragraph (2), in a trial by military commission

20 under this chapter, the United States may take an inter21 locutory appeal to the Court of Military Commission Re22 view of any order or ruling of the military judge that—

23 ‘‘(A) terminates proceedings of the military

24 commission with respect to a charge or specification;
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1 ‘‘(B) excludes evidence that is substantial proof

2 of a fact material in the proceeding; or

3 ‘‘(C) relates to a matter under subsection (d),

4 (e), or (f) of section 949d of this title or section

5 949j(c) of this title.

6 ‘‘(2) The United States may not appeal under para7 graph (1) an order or ruling that is, or amounts to, a find8 ing of not guilty by the military commission with respect

9 to a charge or specification.

10 ‘‘(b) NOTICE OF APPEAL.—The United States shall

11 take an appeal of an order or ruling under subsection (a)

12 by filing a notice of appeal with the military judge within

13 five days after the date of such order or ruling.

14 ‘‘(c) APPEAL.—An appeal under this section shall be

15 forwarded, by means specified in regulations prescribed

16 the Secretary of Defense, directly to the Court of Military

17 Commission Review. In ruling on an appeal under this sec18 tion, the Court may act only with respect to matters of

19 law.

20 ‘‘(d) APPEAL FROM ADVERSE RULING.—The United

21 States may appeal an adverse ruling on an appeal under

22 subsection (c) to the United States Court of Appeals for

23 the District of Columbia Circuit by filing a petition for

24 review in the Court of Appeals within 10 days after the
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1 date of such ruling. Review under this subsection shall be

2 at the discretion of the Court of Appeals.

3 ‘‘§ 950e. Rehearings

4 ‘‘(a) COMPOSITION OF MILITARY COMMISSION FOR

5 REHEARING.—Each rehearing under this chapter shall

6 take place before a military commission under this chapter

7 composed of members who were not members of the mili8 tary commission which first heard the case.

9 ‘‘(b) SCOPE OF REHEARING.—(1) Upon a

10 rehearing—

11 ‘‘(A) the accused may not be tried for any of12 fense of which he was found not guilty by the first

13 military commission; and

14 ‘‘(B) no sentence in excess of or more than the

15 original sentence may be imposed unless—

16 ‘‘(i) the sentence is based upon a finding

17 of guilty of an offense not considered upon the

18 merits in the original proceedings; or

19 ‘‘(ii) the sentence prescribed for the of20 fense is mandatory.

21 ‘‘(2) Upon a rehearing, if the sentence approved after

22 the first military commission was in accordance with a

23 pretrial agreement and the accused at the rehearing

24 changes his plea with respect to the charges or specifica25 tions upon which the pretrial agreement was based, or oth-
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1 erwise does not comply with pretrial agreement, the sen2 tence as to those charges or specifications may include any

3 punishment not in excess of that lawfully adjudged at the

4 first military commission.

5 ‘‘§ 950f. Review by Court of Military Commission Re6 view

7 ‘‘(a) ESTABLISHMENT.—The Secretary of Defense

8 shall establish a Court of Military Commission Review

9 which shall be composed of one or more panels, and each

10 such panel shall be composed of not less than three appel11 late military judges. For the purpose of reviewing military

12 commission decisions under this chapter, the court may

13 sit in panels or as a whole in accordance with rules pre14 scribed by the Secretary.

15 ‘‘(b) APPELLATE MILITARY JUDGES.—The Secretary

16 shall assign appellate military judges to a Court of Mili17 tary Commission Review. Each appellate military judge

18 shall meet the qualifications for military judges prescribed

19 by section 948j(b) of this title or shall be a civilian with

20 comparable qualifications. No person may be serve as an

21 appellate military judge in any case in which that person

22 acted as a military judge, counsel, or reviewing official.

23 ‘‘(c) CASES TO BE REVIEWED.—The Court of Mili24 tary Commission Review, in accordance with procedures

25 prescribed under regulations of the Secretary, shall review
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1 the record in each case that is referred to the Court by

2 the convening authority under section 950c of this title

3 with respect to any matter of law raised by the accused.

4 ‘‘(d) SCOPE OF REVIEW.—In a case reviewed by the

5 Court of Military Commission Review under this section,

6 the Court may act only with respect to matters of law.

7 ‘‘§ 950g. Review by the United States Court of Ap8 peals for the District of Columbia Circuit

9 and the Supreme Court

10 ‘‘(a) EXCLUSIVE APPELLATE JURISDICTION.—(1)(A)

11 Except as provided in subparagraph (B), the United

12 States Court of Appeals for the District of Columbia Cir13 cuit shall have exclusive jurisdiction to determine the va14 lidity of a final judgment rendered by a military commis15 sion (as approved by the convening authority) under this

16 chapter.

17 ‘‘(B) The Court of Appeals may not review the final

18 judgment until all other appeals under this chapter have

19 been waived or exhausted.

20 ‘‘(2) A petition for review must be filed by the ac21 cused in the Court of Appeals not later than 20 days after

22 the date on which—

23 ‘‘(A) written notice of the final decision of the

24 Court of Military Commission Review is served on

25 the accused or on defense counsel; or
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1 ‘‘(B) the accused submits, in the form pre2 scribed by section 950c of this title, a written notice

3 waiving the right of the accused to review by the

4 Court of Military Commission Review under section

5 950f of this title.

6 ‘‘(b) STANDARD FOR REVIEW.—In a case reviewed

7 by it under this section, the Court of Appeals may act

8 only with respect to matters of law.

9 ‘‘(c) SCOPE OF REVIEW.—The jurisdiction of the

10 Court of Appeals on an appeal under subsection (a) shall

11 be limited to the consideration of—

12 ‘‘(1) whether the final decision was consistent

13 with the standards and procedures specified in this

14 chapter; and

15 ‘‘(2) to the extent applicable, the Constitution

16 and the laws of the United States.

17 ‘‘(d) SUPREME COURT.—The Supreme Court may re18 view by writ of certiorari the final judgment of the Court

19 of Appeals pursuant to section 1257 of title 28.

20 ‘‘§ 950h. Appellate counsel

21 ‘‘(a) APPOINTMENT.—The Secretary of Defense

22 shall, by regulation, establish procedures for the appoint23 ment of appellate counsel for the United States and for

24 the accused in military commissions under this chapter.
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1 Appellate counsel shall meet the qualifications for counsel

2 appearing before military commissions under this chapter.

3 ‘‘(b) REPRESENTATION OF UNITED STATES.—Appel4 late counsel appointed under subsection (a)—

5 ‘‘(1) shall represent the United States in any

6 appeal or review proceeding under this chapter be7 fore the Court of Military Commission Review; and

8 ‘‘(2) may, when requested to do so by the At9 torney General in a case arising under this chapter,

10 represent the United States before the United States

11 Court of Appeals for the District of Columbia Cir12 cuit or the Supreme Court.

13 ‘‘(c) REPRESENTATION OF ACCUSED.—The accused

14 shall be represented by appellate counsel appointed under

15 subsection (a) before the Court of Military Commission

16 Review, the United States Court of Appeals for the Dis17 trict of Columbia Circuit, and the Supreme Court, and by

18 civilian counsel if retained by the accused. Any such civil19 ian counsel shall meet the qualifications under paragraph

20 (3) of section 949c(b) of this title for civilian counsel ap21 pearing before military commissions under this chapter

22 and shall be subject to the requirements of paragraph (4)

23 of that section.
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1 ‘‘§ 950i. Execution of sentence; procedures for execu2 tion of sentence of death

3 ‘‘(a) IN GENERAL.—The Secretary of Defense is au4 thorized to carry out a sentence imposed by a military

5 commission under this chapter in accordance with such

6 procedures as the Secretary may prescribe.

7 ‘‘(b) EXECUTION OF SENTENCE OF DEATH ONLY

8 UPON APPROVAL BY THE PRESIDENT.—If the sentence

9 of a military commission under this chapter extends to

10 death, that part of the sentence providing for death may

11 not be executed until approved by the President. In such

12 a case, the President may commute, remit, or suspend the

13 sentence, or any part thereof, as he sees fit.

14 ‘‘(c) EXECUTION OF SENTENCE OF DEATH ONLY

15 UPON FINAL JUDGMENT OF LEGALITY OF PRO16 CEEDINGS.—(1) If the sentence of a military commission

17 under this chapter extends to death, the sentence may not

18 be executed until there is a final judgment as to the legal19 ity of the proceedings (and with respect to death, approval

20 under subsection (b)).

21 ‘‘(2) A judgment as to legality of proceedings is final

22 for purposes of paragraph (1) when—

23 ‘‘(A) the time for the accused to file a petition

24 for review by the Court of Appeals for the District

25 of Columbia Circuit has expired and the accused has
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1 not filed a timely petition for such review and the

2 case is not otherwise under review by that Court; or

3 ‘‘(B) review is completed in accordance with the

4 judgment of the United States Court of Appeals for

5 the District of Columbia Circuit and—

6 ‘‘(i) a petition for a writ of certiorari is not

7 timely filed;

8 ‘‘(ii) such a petition is denied by the Su9 preme Court; or

10 ‘‘(iii) review is otherwise completed in ac11 cordance with the judgment of the Supreme

12 Court.

13 ‘‘(d) SUSPENSION OF SENTENCE.—The Secretary of

14 the Defense, or the convening authority acting on the case

15 (if other than the Secretary), may suspend the execution

16 of any sentence or part thereof in the case, except a sen17 tence of death.

18 ‘‘§ 950j. Finality or proceedings, findings, and sen19 tences

20 ‘‘(a) FINALITY.—The appellate review of records of

21 trial provided by this chapter, and the proceedings, find22 ings, and sentences of military commissions as approved,

23 reviewed, or affirmed as required by this chapter, are final

24 and conclusive. Orders publishing the proceedings of mili25 tary commissions under this chapter are binding upon all
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1 departments, courts, agencies, and officers of the United

2 States, except as otherwise provided by the President.

3 ‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS FOR RE4 VIEW OF MILITARY COMMISSION PROCEDURES AND AC5 TIONS.—Except as otherwise provided in this chapter and

6 notwithstanding any other provision of law (including sec7 tion 2241 of title 28 or any other habeas corpus provi8 sion), no court, justice, or judge shall have jurisdiction to

9 hear or consider any claim or cause of action whatsoever,

10 including any action pending on or filed after the date of

11 the enactment of the Military Commissions Act of 2006,

12 relating to the prosecution, trial, or judgment of a military

13 commission under this chapter, including challenges to the

14 lawfulness of procedures of military commissions under

15 this chapter.

16 ‘‘SUBCHAPTER VII—PUNITIVE MATTERS

‘‘Sec.

‘‘950p. Statement of substantive offenses.

‘‘950q. Principals.

‘‘950r. Accessory after the fact.

‘‘950s. Conviction of lesser included offense.

‘‘950t. Attempts.

‘‘950u. Solicitation.

‘‘950v. Crimes triable by military commissions.

‘‘950w. Perjury and obstruction of justice; contempt.

17 ‘‘§ 950p. Statement of substantive offenses

18 ‘‘(a) PURPOSE.—The provisions of this subchapter

19 codify offenses that have traditionally been triable by mili20 tary commissions. This chapter does not establish new
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1 crimes that did not exist before its enactment, but rather

2 codifies those crimes for trial by military commission.

3 ‘‘(b) EFFECT.—Because the provisions of this sub4 chapter (including provisions that incorporate definitions

5 in other provisions of law) are declarative of existing law,

6 they do not preclude trial for crimes that occurred before

7 the date of the enactment of this chapter.

8 ‘‘§ 950q. Principals

9 ‘‘Any person is punishable as a principal under this

10 chapter who—

11 ‘‘(1) commits an offense punishable by this

12 chapter, or aids, abets, counsels, commands, or pro13 cures its commission;

14 ‘‘(2) causes an act to be done which if directly

15 performed by him would be punishable by this chap16 ter; or

17 ‘‘(3) is a superior commander who, with regard

18 to acts punishable under this chapter, knew, had

19 reason to know, or should have known, that a subor20 dinate was about to commit such acts or had done

21 so and who failed to take the necessary and reason22 able measures to prevent such acts or to punish the

23 perpetrators thereof.
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1 ‘‘§ 950r. Accessory after the fact

2 ‘‘Any person subject to this chapter who, knowing

3 that an offense punishable by this chapter has been com4 mitted, receives, comforts, or assists the offender in order

5 to hinder or prevent his apprehension, trial, or punishment

6 shall be punished as a military commission under this

7 chapter may direct.

8 ‘‘§ 950s. Conviction of lesser included offense

9 ‘‘An accused may be found guilty of an offense nec10 essarily included in the offense charged or of an attempt

11 to commit either the offense charged or an attempt to

12 commit either the offense charged or an offense nec13 essarily included therein.

14 ‘‘§ 950t. Attempts

15 ‘‘(a) IN GENERAL.—Any person subject to this chap16 ter who attempts to commit any offense punishable by this

17 chapter shall be punished as a military commission under

18 this chapter may direct.

19 ‘‘(b) SCOPE OF OFFENSE.—An act, done with spe20 cific intent to commit an offense under this chapter,

21 amounting to more than mere preparation and tending,

22 even though failing, to effect its commission, is an attempt

23 to commit that offense.

24 ‘‘(c) EFFECT OF CONSUMMATION.—Any person sub25 ject to this chapter may be convicted of an attempt to com-
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1 mit an offense although it appears on the trial that the

2 offense was consummated.

3 ‘‘§ 950u. Solicitation

4 ‘‘Any person subject to this chapter who solicits or

5 advises another or others to commit one or more sub6 stantive offenses triable by military commission under this

7 chapter shall, if the offense solicited or advised is at8 tempted or committed, be punished with the punishment

9 provided for the commission of the offense, but, if the of10 fense solicited or advised is not committed or attempted,

11 he shall be punished as a military commission under this

12 chapter may direct.

13 ‘‘§ 950v. Crimes triable by military commissions

14 ‘‘(a) DEFINITIONS AND CONSTRUCTION.—In this sec15 tion:

16 ‘‘(1) MILITARY OBJECTIVE.—The term ‘military

17 objective’ means—

18 ‘‘(A) combatants; and

19 ‘‘(B) those objects during an armed

20 conflict—

21 ‘‘(i) which, by their nature, location,

22 purpose, or use, effectively contribute to

23 the opposing force’s war-fighting or war24 sustaining capability; and
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1 ‘‘(ii) the total or partial destruction,

2 capture, or neutralization of which would

3 constitute a definite military advantage to

4 the attacker under the circumstances at

5 the time of the attack.

6 ‘‘(2) PROTECTED PERSON.—The term ‘pro7 tected person’ means any person entitled to protec8 tion under one or more of the Geneva Conventions,

9 including—

10 ‘‘(A) civilians not taking an active part in

11 hostilities;

12 ‘‘(B) military personnel placed hors de

13 combat by sickness, wounds, or detention; and

14 ‘‘(C) military medical or religious per15 sonnel.

16 ‘‘(3) PROTECTED PROPERTY.—The term ‘pro17 tected property’ means property specifically pro18 tected by the law of war (such as buildings dedicated

19 to religion, education, art, science or charitable pur20 poses, historic monuments, hospitals, or places

21 where the sick and wounded are collected), if such

22 property is not being used for military purposes or

23 is not otherwise a military objective. Such term in24 cludes objects properly identified by one of the dis25 tinctive emblems of the Geneva Conventions, but
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1 does not include civilian property that is a military

2 objective.

3 ‘‘(4) CONSTRUCTION.—The intent specified for

4 an offense under paragraph (1), (2), (3), (4), or

5 (12) of subsection (b) precludes the applicability of

6 such offense with regard to—

7 ‘‘(A) collateral damage; or

8 ‘‘(B) death, damage, or injury incident to

9 a lawful attack.

10 ‘‘(b) OFFENSES.—The following offenses shall be tri11 able by military commission under this chapter at any

12 time without limitation:

13 ‘‘(1) MURDER OF PROTECTED PERSONS.—Any

14 person subject to this chapter who intentionally kills

15 one or more protected persons shall be punished by

16 death or such other punishment as a military com17 mission under this chapter may direct.

18 ‘‘(2) ATTACKING CIVILIANS.—Any person sub19 ject to this chapter who intentionally engages in an

20 attack upon a civilian population as such, or indi21 vidual civilians not taking active part in hostilities,

22 shall be punished, if death results to one or more of

23 the victims, by death or such other punishment as

24 a military commission under this chapter may direct,

25 and, if death does not result to any of the victims,
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1 by such punishment, other than death, as a military

2 commission under this chapter may direct.

3 ‘‘(3) ATTACKING CIVILIAN OBJECTS.—Any per4 son subject to this chapter who intentionally engages

5 in an attack upon a civilian object that is not a mili6 tary objective shall be punished as a military com7 mission under this chapter may direct.

8 ‘‘(4) ATTACKING PROTECTED PROPERTY.—Any

9 person subject to this chapter who intentionally en10 gages in an attack upon protected property shall be

11 punished as a military commission under this chap12 ter may direct.

13 ‘‘(5) PILLAGING.—Any person subject to this

14 chapter who intentionally and in the absence of mili15 tary necessity appropriates or seizes property for

16 private or personal use, without the consent of a

17 person with authority to permit such appropriation

18 or seizure, shall be punished as a military commis19 sion under this chapter may direct.

20 ‘‘(6) DENYING QUARTER.—Any person subject

21 to this chapter who, with effective command or con22 trol over subordinate groups, declares, orders, or

23 otherwise indicates to those groups that there shall

24 be no survivors or surrender accepted, with the in25 tent to threaten an adversary or to conduct hos-
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1 tilities such that there would be no survivors or sur2 render accepted, shall be punished as a military

3 commission under this chapter may direct.

4 ‘‘(7) TAKING HOSTAGES.—Any person subject

5 to this chapter who, having knowingly seized or de6 tained one or more persons, threatens to kill, injure,

7 or continue to detain such person or persons with

8 the intent of compelling any nation, person other

9 than the hostage, or group of persons to act or re10 frain from acting as an explicit or implicit condition

11 for the safety or release of such person or persons,

12 shall be punished, if death results to one or more of

13 the victims, by death or such other punishment as

14 a military commission under this chapter may direct,

15 and, if death does not result to any of the victims,

16 by such punishment, other than death, as a military

17 commission under this chapter may direct.

18 ‘‘(8) EMPLOYING POISON OR SIMILAR WEAP19 ONS.—Any person subject to this chapter who inten20 tionally, as a method of warfare, employs a sub21 stance or weapon that releases a substance that

22 causes death or serious and lasting damage to health

23 in the ordinary course of events, through its asphyx24 iating, bacteriological, or toxic properties, shall be

25 punished, if death results to one or more of the vic-
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1 tims, by death or such other punishment as a mili2 tary commission under this chapter may direct, and,

3 if death does not result to any of the victims, by

4 such punishment, other than death, as a military

5 commission under this chapter may direct.

6 ‘‘(9) USING PROTECTED PERSONS AS A

7 SHIELD.—Any person subject to this chapter who

8 positions, or otherwise takes advantage of, a pro9 tected person with the intent to shield a military ob10 jective from attack, or to shield, favor, or impede

11 military operations, shall be punished, if death re12 sults to one or more of the victims, by death or such

13 other punishment as a military commission under

14 this chapter may direct, and, if death does not result

15 to any of the victims, by such punishment, other

16 than death, as a military commission under this

17 chapter may direct.

18 ‘‘(10) USING PROTECTED PROPERTY AS A

19 SHIELD.—Any person subject to this chapter who

20 positions, or otherwise takes advantage of the loca21 tion of, protected property with the intent to shield

22 a military objective from attack, or to shield, favor,

23 or impede military operations, shall be punished as

24 a military commission under this chapter may direct.

25 ‘‘(11) TORTURE.—
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1 ‘‘(A) OFFENSE.—Any person subject to

2 this chapter who commits an act specifically in3 tended to inflict severe physical or mental pain

4 or suffering (other than pain or suffering inci5 dental to lawful sanctions) upon another person

6 within his custody or physical control for the

7 purpose of obtaining information or a confes8 sion, punishment, intimidation, coercion, or any

9 reason based on discrimination of any kind,

10 shall be punished, if death results to one or

11 more of the victims, by death or such other

12 punishment as a military commission under this

13 chapter may direct, and, if death does not re14 sult to any of the victims, by such punishment,

15 other than death, as a military commission

16 under this chapter may direct.

17 ‘‘(B) SEVERE MENTAL PAIN OR SUF18 FERING DEFINED.—In this section, the term

19 ‘severe mental pain or suffering’ has the mean20 ing given that term in section 2340(2) of title

21 18.

22 ‘‘(12) CRUEL OR INHUMAN TREATMENT.—

23 ‘‘(A) OFFENSE.—Any person subject to

24 this chapter who commits an act intended to in25 flict severe or serious physical or mental pain or
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1 suffering (other than pain or suffering inci2 dental to lawful sanctions), including serious

3 physical abuse, upon another within his custody

4 or control shall be punished, if death results to

5 the victim, by death or such other punishment

6 as a military commission under this chapter

7 may direct, and, if death does not result to the

8 victim, by such punishment, other than death,

9 as a military commission under this chapter

10 may direct.

11 ‘‘(B) DEFINITIONS.—In this paragraph:

12 ‘‘(i) The term ‘serious physical pain

13 or suffering’ means bodily injury that

14 involves—

15 ‘‘(I) a substantial risk of death;

16 ‘‘(II) extreme physical pain;

17 ‘‘(III) a burn or physical dis18 figurement of a serious nature (other

19 than cuts, abrasions, or bruises); or

20 ‘‘(IV) significant loss or impair21 ment of the function of a bodily mem22 ber, organ, or mental faculty.

23 ‘‘(ii) The term ‘severe mental pain or

24 suffering’ has the meaning given that term

25 in section 2340(2) of title 18.
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1 ‘‘(iii) The term ‘serious mental pain

2 or suffering’ has the meaning given the

3 term ‘severe mental pain or suffering’ in

4 section 2340(2) of title 18, except that—

5 ‘‘(I) the term ‘serious’ shall re6 place the term ‘severe’ where it ap7 pears; and

8 ‘‘(II) as to conduct occurring

9 after the date of the enactment of the

10 Military Commissions Act of 2006,

11 the term ‘serious and non-transitory

12 mental harm (which need not be pro13 longed)’ shall replace the term ‘pro14 longed mental harm’ where it appears.

15 ‘‘(13) INTENTIONALLY CAUSING SERIOUS BOD16 ILY INJURY.—

17 ‘‘(A) OFFENSE.—Any person subject to

18 this chapter who intentionally causes serious

19 bodily injury to one or more persons, including

20 lawful combatants, in violation of the law of

21 war shall be punished, if death results to one or

22 more of the victims, by death or such other

23 punishment as a military commission under this

24 chapter may direct, and, if death does not re25 sult to any of the victims, by such punishment,
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1 other than death, as a military commission

2 under this chapter may direct.

3 ‘‘(B) SERIOUS BODILY INJURY DEFINED.—

4 In this paragraph, the term ‘serious bodily in5 jury’ means bodily injury which involves—

6 ‘‘(i) a substantial risk of death;

7 ‘‘(ii) extreme physical pain;

8 ‘‘(iii) protracted and obvious dis9 figurement; or

10 ‘‘(iv) protracted loss or impairment of

11 the function of a bodily member, organ, or

12 mental faculty.

13 ‘‘(14) MUTILATING OR MAIMING.—Any person

14 subject to this chapter who intentionally injures one

15 or more protected persons by disfiguring the person

16 or persons by any mutilation of the person or per17 sons, or by permanently disabling any member, limb,

18 or organ of the body of the person or persons, with19 out any legitimate medical or dental purpose, shall

20 be punished, if death results to one or more of the

21 victims, by death or such other punishment as a

22 military commission under this chapter may direct,

23 and, if death does not result to any of the victims,

24 by such punishment, other than death, as a military

25 commission under this chapter may direct.
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1 ‘‘(15) MURDER IN VIOLATION OF THE LAW OF

2 WAR.—Any person subject to this chapter who inten3 tionally kills one or more persons, including lawful

4 combatants, in violation of the law of war shall be

5 punished by death or such other punishment as a

6 military commission under this chapter may direct.

7 ‘‘(16) DESTRUCTION OF PROPERTY IN VIOLA8 TION OF THE LAW OF WAR.—Any person subject to

9 this chapter who intentionally destroys property be10 longing to another person in violation of the law of

11 war shall punished as a military commission under

12 this chapter may direct.

13 ‘‘(17) USING TREACHERY OR PERFIDY.—Any

14 person subject to this chapter who, after inviting the

15 confidence or belief of one or more persons that they

16 were entitled to, or obliged to accord, protection

17 under the law of war, intentionally makes use of

18 that confidence or belief in killing, injuring, or cap19 turing such person or persons shall be punished, if

20 death results to one or more of the victims, by death

21 or such other punishment as a military commission

22 under this chapter may direct, and, if death does not

23 result to any of the victims, by such punishment,

24 other than death, as a military commission under

25 this chapter may direct.
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1 ‘‘(18) IMPROPERLY USING A FLAG OF TRUCE.—

2 Any person subject to this chapter who uses a flag

3 of truce to feign an intention to negotiate, sur4 render, or otherwise suspend hostilities when there is

5 no such intention shall be punished as a military

6 commission under this chapter may direct.

7 ‘‘(19) IMPROPERLY USING A DISTINCTIVE EM8 BLEM.—Any person subject to this chapter who in9 tentionally uses a distinctive emblem recognized by

10 the law of war for combatant purposes in a manner

11 prohibited by the law of war shall be punished as a

12 military commission under this chapter may direct.

13 ‘‘(20) INTENTIONALLY MISTREATING A DEAD

14 BODY.—Any person subject to this chapter who in15 tentionally mistreats the body of a dead person,

16 without justification by legitimate military necessity,

17 shall be punished as a military commission under

18 this chapter may direct.

19 ‘‘(21) RAPE.—Any person subject to this chap20 ter who forcibly or with coercion or threat of force

21 wrongfully invades the body of a person by pene22 trating, however slightly, the anal or genital opening

23 of the victim with any part of the body of the ac24 cused, or with any foreign object, shall be punished
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1 as a military commission under this chapter may di2 rect.

3 ‘‘(22) SEXUAL ASSAULT OR ABUSE.—Any per4 son subject to this chapter who forcibly or with coer5 cion or threat of force engages in sexual contact

6 with one or more persons, or causes one or more

7 persons to engage in sexual contact, shall be pun8 ished as a military commission under this chapter

9 may direct.

10 ‘‘(23) HIJACKING OR HAZARDING A VESSEL OR

11 AIRCRAFT.—Any person subject to this chapter who

12 intentionally seizes, exercises unauthorized control

13 over, or endangers the safe navigation of a vessel or

14 aircraft that is not a legitimate military objective

15 shall be punished, if death results to one or more of

16 the victims, by death or such other punishment as

17 a military commission under this chapter may direct,

18 and, if death does not result to any of the victims,

19 by such punishment, other than death, as a military

20 commission under this chapter may direct.

21 ‘‘(24) TERRORISM.—Any person subject to this

22 chapter who intentionally kills or inflicts great bodily

23 harm on one or more protected persons, or inten24 tionally engages in an act that evinces a wanton dis25 regard for human life, in a manner calculated to in-
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1 fluence or affect the conduct of government or civil2 ian population by intimidation or coercion, or to re3 taliate against government conduct, shall be pun4 ished, if death results to one or more of the victims,

5 by death or such other punishment as a military

6 commission under this chapter may direct, and, if

7 death does not result to any of the victims, by such

8 punishment, other than death, as a military commis9 sion under this chapter may direct.

10 ‘‘(25) PROVIDING MATERIAL SUPPORT FOR

11 TERRORISM.—

12 ‘‘(A) OFFENSE.—Any person subject to

13 this chapter who provides material support or

14 resources, knowing or intending that they are to

15 be used in preparation for, or in carrying out,

16 an act of terrorism (as set forth in paragraph

17 (24)), or who intentionally provides material

18 support or resources to an international ter19 rorist organization engaged in hostilities against

20 the United States, knowing that such organiza21 tion has engaged or engages in terrorism (as so

22 set forth), shall be punished as a military com23 mission under this chapter may direct.

24 ‘‘(B) MATERIAL SUPPORT OR RESOURCES

25 DEFINED.—In this paragraph, the term ‘mate-
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1 rial support or resources’ has the meaning

2 given that term in section 2339A(b) of title 18.

3 ‘‘(26) WRONGFULLY AIDING THE ENEMY.—Any

4 person subject to this chapter who, in breach of an

5 allegiance or duty to the United States, knowingly

6 and intentionally aids an enemy of the United

7 States, or one of the co-belligerents of the enemy,

8 shall be punished as a military commission under

9 this chapter may direct.

10 ‘‘(27) SPYING.—Any person subject to this

11 chapter who with intent or reason to believe that it

12 is to be used to the injury of the United States or

13 to the advantage of a foreign power, collects or at14 tempts to collect information by clandestine means

15 or while acting under false pretenses, for the pur16 pose of conveying such information to an enemy of

17 the United States, or one of the co-belligerents of

18 the enemy, shall be punished by death or such other

19 punishment as a military commission under this

20 chapter may direct.

21 ‘‘(28) CONSPIRACY.—Any person subject to this

22 chapter who conspires to commit one or more sub23 stantive offenses triable by military commission

24 under this chapter, and who knowingly does any

25 overt act to effect the object of the conspiracy, shall
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1 be punished, if death results to one or more of the

2 victims, by death or such other punishment as a

3 military commission under this chapter may direct,

4 and, if death does not result to any of the victims,

5 by such punishment, other than death, as a military

6 commission under this chapter may direct.

7 ‘‘§ 950w. Perjury and obstruction of justice; contempt

8 ‘‘(a) PERJURY AND OBSTRUCTION OF JUSTICE.—A

9 military commission under this chapter may try offenses

10 and impose such punishment as the military commission

11 may direct for perjury, false testimony, or obstruction of

12 justice related to military commissions under this chapter.

13 ‘‘(b) CONTEMPT.—A military commission under this

14 chapter may punish for contempt any person who uses any

15 menacing word, sign, or gesture in its presence, or who

16 disturbs its proceedings by any riot or disorder.’’.

17 (2) TABLES OF CHAPTERS AMENDMENTS.—The

18 tables of chapters at the beginning of subtitle A, and

19 at the beginning of part II of subtitle A, of title 10,

20 United States Code, are each amended by inserting

21 after the item relating to chapter 47 the following

22 new item:

‘‘47A. Military Commissions ..................................................................... 948a’’.

23 (b) SUBMITTAL OF PROCEDURES TO CONGRESS.—

24 Not later than 90 days after the date of the enactment

25 of this Act, the Secretary of Defense shall submit to the
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1 Committees on Armed Services of the Senate and the

2 House of Representatives a report setting forth the proce3 dures for military commissions prescribed under chapter

4 47A of title 10, United States Code (as added by sub5 section (a)).

6 SEC. 4. AMENDMENTS TO UNIFORM CODE OF MILITARY

7 JUSTICE.

8 (a) CONFORMING AMENDMENTS.—Chapter 47 of

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

10 Justice), is amended as follows:

11 (1) APPLICABILITY TO LAWFUL ENEMY COM12 BATANTS.—Section 802(a) (article 2(a)) is amended

13 by adding at the end the following new paragraph:

14 ‘‘(13) Lawful enemy combatants (as that term

15 is defined in section 948a(2) of this title) who vio16 late the law of war.’’.

17 (2) EXCLUSION OF APPLICABILITY TO CHAPTER

18 47A COMMISSIONS.—Sections 821, 828, 848, 850(a),

19 904, and 906 (articles 21, 28, 48, 50(a), 104, and

20 106) are amended by adding at the end the fol21 lowing new sentence: ‘‘This section does not apply to

22 a military commission established under chapter

23 47A of this title.’’.
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1 (3) INAPPLICABILITY OF REQUIREMENTS RE2 LATING TO REGULATIONS.—Section 836 (article 36)

3 is amended—

4 (A) in subsection (a), by inserting ‘‘, ex5 cept as provided in chapter 47A of this title,’’

6 after ‘‘but which may not’’; and

7 (B) in subsection (b), by inserting before

8 the period at the end ‘‘, except insofar as appli9 cable to military commissions established under

10 chapter 47A of this title’’.

11 (b) PUNITIVE ARTICLE OF CONSPIRACY.—Section

12 881 of title 10, United States Code (article 81 of the Uni13 form Code of Military Justice), is amended—

14 (1) by inserting ‘‘(a)’’ before ‘‘Any person’’; and

15 (2) by adding at the end the following new sub16 section:

17 ‘‘(b) Any person subject to this chapter who conspires

18 with any other person to commit an offense under the law

19 of war, and who knowingly does an overt act to effect the

20 object of the conspiracy, shall be punished, if death results

21 to one or more of the victims, by death or such other pun22 ishment as a court-martial or military commission may di23 rect, and, if death does not result to any of the victims,

24 by such punishment, other than death, as a court-martial

25 or military commission may direct.’’.
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1 SEC. 5. TREATY OBLIGATIONS NOT ESTABLISHING

2 GROUNDS FOR CERTAIN CLAIMS.

3 (a) IN GENERAL.—No person may invoke the Geneva

4 Conventions or any protocols thereto in any habeas corpus

5 or other civil action or proceeding to which the United

6 States, or a current or former officer, employee, member

7 of the Armed Forces, or other agent of the United States

8 is a party as a source of rights in any court of the United

9 States or its States or territories.

10 (b) GENEVA CONVENTIONS DEFINED.—In this sec11 tion, the term ‘‘Geneva Conventions’’ means—

12 (1) the Convention for the Amelioration of the

13 Condition of the Wounded and Sick in Armed

14 Forces in the Field, done at Geneva August 12,

15 1949 (6 UST 3114);

16 (2) the Convention for the Amelioration of the

17 Condition of the Wounded, Sick, and Shipwrecked

18 Members of the Armed Forces at Sea, done at Gene19 va August 12, 1949 (6 UST 3217);

20 (3) the Convention Relative to the Treatment of

21 Prisoners of War, done at Geneva August 12, 1949

22 (6 UST 3316); and

23 (4) the Convention Relative to the Protection of

24 Civilian Persons in Time of War, done at Geneva

25 August 12, 1949 (6 UST 3516).
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1 SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS.

2 (a) IMPLEMENTATION OF TREATY OBLIGATIONS.—

3 (1) IN GENERAL.—The acts enumerated in sub4 section (d) of section 2441 of title 18, United States

5 Code, as added by subsection (b) of this section, and

6 in subsection (c) of this section, constitute violations

7 of common Article 3 of the Geneva Conventions pro8 hibited by United States law.

9 (2) PROHIBITION ON GRAVE BREACHES.—The

10 provisions of section 2441 of title 18, United States

11 Code, as amended by this section, fully satisfy the

12 obligation under Article 129 of the Third Geneva

13 Convention for the United States to provide effective

14 penal sanctions for grave breaches which are encom15 passed in common Article 3 in the context of an

16 armed conflict not of an international character. No

17 foreign or international source of law shall supply a

18 basis for a rule of decision in the courts of the

19 United States in interpreting the prohibitions enu20 merated in subsection (d) of such section 2441.

21 (3) INTERPRETATION BY THE PRESIDENT.—

22 (A) As provided by the Constitution and by

23 this section, the President has the authority for

24 the United States to interpret the meaning and

25 application of the Geneva Conventions and to

26 promulgate higher standards and administrative
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1 regulations for violations of treaty obligations

2 which are not grave breaches of the Geneva

3 Conventions.

4 (B) The President shall issue interpreta5 tions described by subparagraph (A) by Execu6 tive Order published in the Federal Register.

7 (C) Any Executive Order published under

8 this paragraph shall be authoritative (except as

9 to grave breaches of common Article 3) as a

10 matter of United States law, in the same man11 ner as other administrative regulations.

12 (D) Nothing in this section shall be con13 strued to affect the constitutional functions and

14 responsibilities of Congress and the judicial

15 branch of the United States.

16 (4) DEFINITIONS.—In this subsection:

17 (A) GENEVA CONVENTIONS.—The term

18 ‘‘Geneva Conventions’’ means—

19 (i) the Convention for the Ameliora20 tion of the Condition of the Wounded and

21 Sick in Armed Forces in the Field, done at

22 Geneva August 12, 1949 (6 UST 3217);

23 (ii) the Convention for the Ameliora24 tion of the Condition of the Wounded,

25 Sick, and Shipwrecked Members of the
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1 Armed Forces at Sea, done at Geneva Au2 gust 12, 1949 (6 UST 3217);

3 (iii) the Convention Relative to the

4 Treatment of Prisoners of War, done at

5 Geneva August 12, 1949 (6 UST 3316);

6 and

7 (iv) the Convention Relative to the

8 Protection of Civilian Persons in Time of

9 War, done at Geneva August 12, 1949 (6

10 UST 3516).

11 (B) THIRD GENEVA CONVENTION.—The

12 term ‘‘Third Geneva Convention’’ means the

13 international convention referred to in subpara14 graph (A)(iii).

15 (b) REVISION TO WAR CRIMES OFFENSE UNDER

16 FEDERAL CRIMINAL CODE.—

17 (1) IN GENERAL.—Section 2441 of title 18,

18 United States Code, is amended—

19 (A) in subsection (c), by striking para20 graph (3) and inserting the following new para21 graph (3):

22 ‘‘(3) which constitutes a grave breach of com23 mon Article 3 (as defined in subsection (d)) when

24 committed in the context of and in association with
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1 an armed conflict not of an international character;

2 or’’; and

3 (B) by adding at the end the following new

4 subsection:

5 ‘‘(d) COMMON ARTICLE 3 VIOLATIONS.—

6 ‘‘(1) PROHIBITED CONDUCT.—In subsection

7 (c)(3), the term ‘grave breach of common Article 3’

8 means any conduct (such conduct constituting a

9 grave breach of common Article 3 of the inter10 national conventions done at Geneva August 12,

11 1949), as follows:

12 ‘‘(A) TORTURE.—The act of a person who

13 commits, or conspires or attempts to commit,

14 an act specifically intended to inflict severe

15 physical or mental pain or suffering (other than

16 pain or suffering incidental to lawful sanctions)

17 upon another person within his custody or

18 physical control for the purpose of obtaining in19 formation or a confession, punishment, intimi20 dation, coercion, or any reason based on dis21 crimination of any kind.

22 ‘‘(B) CRUEL OR INHUMAN TREATMENT.—

23 The act of a person who commits, or conspires

24 or attempts to commit, an act intended to in25 flict severe or serious physical or mental pain or
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1 suffering (other than pain or suffering inci2 dental to lawful sanctions), including serious

3 physical abuse, upon another within his custody

4 or control.

5 ‘‘(C) PERFORMING BIOLOGICAL EXPERI6 MENTS.—The act of a person who subjects, or

7 conspires or attempts to subject, one or more

8 persons within his custody or physical control to

9 biological experiments without a legitimate med10 ical or dental purpose and in so doing endan11 gers the body or health of such person or per12 sons.

13 ‘‘(D) MURDER.—The act of a person who

14 intentionally kills, or conspires or attempts to

15 kill, or kills whether intentionally or uninten16 tionally in the course of committing any other

17 offense under this subsection, one or more per18 sons taking no active part in the hostilities, in19 cluding those placed out of combat by sickness,

20 wounds, detention, or any other cause.

21 ‘‘(E) MUTILATION OR MAIMING.—The act

22 of a person who intentionally injures, or con23 spires or attempts to injure, or injures whether

24 intentionally or unintentionally in the course of

25 committing any other offense under this sub-
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1 section, one or more persons taking no active

2 part in the hostilities, including those placed

3 out of combat by sickness, wounds, detention,

4 or any other cause, by disfiguring the person or

5 persons by any mutilation thereof or by perma6 nently disabling any member, limb, or organ of

7 his body, without any legitimate medical or den8 tal purpose.

9 ‘‘(F) INTENTIONALLY CAUSING SERIOUS

10 BODILY INJURY.—The act of a person who in11 tentionally causes, or conspires or attempts to

12 cause, serious bodily injury to one or more per13 sons, including lawful combatants, in violation

14 of the law of war.

15 ‘‘(G) RAPE.—The act of a person who

16 forcibly or with coercion or threat of force

17 wrongfully invades, or conspires or attempts to

18 invade, the body of a person by penetrating,

19 however slightly, the anal or genital opening of

20 the victim with any part of the body of the ac21 cused, or with any foreign object.

22 ‘‘(H) SEXUAL ASSAULT OR ABUSE.—The

23 act of a person who forcibly or with coercion or

24 threat of force engages, or conspires or at25 tempts to engage, in sexual contact with one or
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1 more persons, or causes, or conspires or at2 tempts to cause, one or more persons to engage

3 in sexual contact.

4 ‘‘(I) TAKING HOSTAGES.—The act of a

5 person who, having knowingly seized or de6 tained one or more persons, threatens to kill,

7 injure, or continue to detain such person or per8 sons with the intent of compelling any nation,

9 person other than the hostage, or group of per10 sons to act or refrain from acting as an explicit

11 or implicit condition for the safety or release of

12 such person or persons.

13 ‘‘(2) DEFINITIONS.—In the case of an offense

14 under subsection (a) by reason of subsection

15 (c)(3)—

16 ‘‘(A) the term ‘severe mental pain or suf17 fering’ shall be applied for purposes of para18 graphs (1)(A) and (1)(B) in accordance with

19 the meaning given that term in section 2340(2)

20 of this title;

21 ‘‘(B) the term ‘serious bodily injury’ shall

22 be applied for purposes of paragraph (1)(F) in

23 accordance with the meaning given that term in

24 section 113(b)(2) of this title;
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1 ‘‘(C) the term ‘sexual contact’ shall be ap2 plied for purposes of paragraph (1)(G) in ac3 cordance with the meaning given that term in

4 section 2246(3) of this title;

5 ‘‘(D) the term ‘serious physical pain or

6 suffering’ shall be applied for purposes of para7 graph (1)(B) as meaning bodily injury that

8 involves—

9 ‘‘(i) a substantial risk of death;

10 ‘‘(ii) extreme physical pain;

11 ‘‘(iii) a burn or physical disfigurement

12 of a serious nature (other than cuts, abra13 sions, or bruises); or

14 ‘‘(iv) significant loss or impairment of

15 the function of a bodily member, organ, or

16 mental faculty; and

17 ‘‘(E) the term ‘serious mental pain or suf18 fering’ shall be applied for purposes of para19 graph (1)(B) in accordance with the meaning

20 given the term ‘severe mental pain or suffering’

21 (as defined in section 2340(2) of this title), ex22 cept that—

23 ‘‘(i) the term ‘serious’ shall replace

24 the term ‘severe’ where it appears; and
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1 ‘‘(ii) as to conduct occurring after the

2 date of the enactment of the Military Com3 missions Act of 2006, the term ‘serious

4 and non-transitory mental harm (which

5 need not be prolonged)’ shall replace the

6 term ‘prolonged mental harm’ where it ap7 pears.

8 ‘‘(3) INAPPLICABILITY OF CERTAIN PROVISIONS

9 WITH RESPECT TO COLLATERAL DAMAGE OR INCI10 DENT OF LAWFUL ATTACK.—The intent specified for

11 the conduct stated in subparagraphs (D), (E), and

12 (F) or paragraph (1) precludes the applicability of

13 those subparagraphs to an offense under subsection

14 (a) by reasons of subsection (c)(3) with respect to—

15 ‘‘(A) collateral damage; or

16 ‘‘(B) death, damage, or injury incident to

17 a lawful attack.

18 ‘‘(4) INAPPLICABILITY OF TAKING HOSTAGES

19 TO PRISONER EXCHANGE.—Paragraph (1)(I) does

20 not apply to an offense under subsection (a) by rea21 son of subsection (c)(3) in the case of a prisoner ex22 change during wartime.

23 ‘‘(5) DEFINITION OF GRAVE BREACHES.—The

24 definitions in this subsection are intended only to de25 fine the grave breaches of common Article 3 and not
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1 the full scope of United States obligations under

2 that Article.’’.

3 (2) RETROACTIVE APPLICABILITY.—The

4 amendments made by this subsection, except as

5 specified in subsection (d)(2)(E) of section 2441 of

6 title 18, United States Code, shall take effect as of

7 November 26, 1997, as if enacted immediately after

8 the amendments made by section 583 of Public Law

9 105–118 (as amended by section 4002(e)(7) of Pub10 lic Law 107–273).

11 (c) ADDITIONAL PROHIBITION ON CRUEL, INHUMAN,

12 OR DEGRADING TREATMENT OR PUNISHMENT.—

13 (1) IN GENERAL.—No individual in the custody

14 or under the physical control of the United States

15 Government, regardless of nationality or physical lo16 cation, shall be subject to cruel, inhuman, or degrad17 ing treatment or punishment.

18 (2) CRUEL, INHUMAN, OR DEGRADING TREAT19 MENT OR PUNISHMENT DEFINED.—In this sub20 section, the term ‘‘cruel, inhuman, or degrading

21 treatment or punishment’’ means cruel, unusual,

22 and inhumane treatment or punishment prohibited

23 by the Fifth, Eighth, and Fourteenth Amendments

24 to the Constitution of the United States, as defined

25 in the United States Reservations, Declarations and
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1 Understandings to the United Nations Convention

2 Against Torture and Other Forms of Cruel, Inhu3 man or Degrading Treatment or Punishment done

4 at New York, December 10, 1984.

5 (3) COMPLIANCE.—The President shall take ac6 tion to ensure compliance with this subsection, in7 cluding through the establishment of administrative

8 rules and procedures.

9 SEC. 7. HABEAS CORPUS MATTERS.

10 (a) IN GENERAL.—Section 2241 of title 28, United

11 States Code, is amended by striking both the subsection

12 (e) added by section 1005(e)(1) of Public Law 109–148

13 (119 Stat. 2742) and the subsection (e) added by added

14 by section 1405(e)(1) of Public Law 109–163 (119 Stat.

15 3477) and inserting the following new subsection (e):

16 ‘‘(e)(1) No court, justice, or judge shall have jurisdic17 tion to hear or consider an application for a writ of habeas

18 corpus filed by or on behalf of an alien detained by the

19 United States who has been determined by the United

20 States to have been properly detained as an enemy com21 batant or is awaiting such determination.

22 ‘‘(2) Except as provided in paragraphs (2) and (3)

23 of section 1005(e) of the Detainee Treatment Act of 2005

24 (10 U.S.C. 801 note), no court, justice, or judge shall have

25 jurisdiction to hear or consider any other action against
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1 the United States or its agents relating to any aspect of

2 the detention, transfer, treatment, trial, or conditions of

3 confinement of an alien who is or was detained by the

4 United States and has been determined by the United

5 States to have been properly detained as an enemy com6 batant or is awaiting such determination.’’.

7 (b) EFFECTIVE DATE.—The amendment made by

8 subsection (a) shall take effect on the date of the enact9 ment of this Act, and shall apply to all cases, without ex10 ception, pending on or after the date of the enactment of

11 this Act which relate to any aspect of the detention, trans12 fer, treatment, trial, or conditions of detention of an alien

13 detained by the United States since September 11, 2001.

14 SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005

15 RELATING TO PROTECTION OF CERTAIN

16 UNITED STATES GOVERNMENT PERSONNEL.

17 (a) COUNSEL AND INVESTIGATIONS.—Section

18 1004(b) of the Detainee Treatment Act of 2005 (42

19 U.S.C. 2000dd–1(b)) is amended—

20 (1) by striking ‘‘may provide’’ and inserting

21 ‘‘shall provide’’;

22 (2) by inserting ‘‘or investigation’’ after ‘‘crimi23 nal prosecution’’; and

24 (3) by inserting ‘‘whether before United States

25 courts or agencies, foreign courts or agencies, or
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1 international courts or agencies,’’ after ‘‘described in

2 that subsection’’.

3 (b) PROTECTION OF PERSONNEL.—Section 1004 of

4 the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd–

5 1) shall apply with respect to any criminal prosecution

6 that—

7 (1) relates to the detention and interrogation of

8 aliens described in such section;

9 (2) is grounded in section 2441(c)(3) of title

10 18, United States Code; and

11 (3) relates to actions occurring between Sep12 tember 11, 2001, and December 30, 2005.

13 SEC. 9. REVIEW OF JUDGMENTS OF MILITARY COMMIS14 SIONS.

15 Section 1005(e)(3) of the Detainee Treatment Act of

16 2005 (title X of Public Law 109–148; 119 Stat. 2740;

17 10 U.S.C. 801 note) is amended—

18 (1) in subparagraph (A), by striking ‘‘pursuant

19 to Military Commission Order No. 1. dated August

20 31, 2005 (or any successor military order)’’ and in21 serting ‘‘by a military commission under chapter

22 47A of title 10, United States Code’’;

23 (2) by striking subparagraph (B) and inserting

24 the following new subparagraph (B):
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1 ‘‘(B) GRANT OF REVIEW.—Review under

2 this paragraph shall be as of right.’’;

3 (3) in subparagraph (C)—

4 (A) in clause (i)—

5 (i) by striking ‘‘pursuant to the mili6 tary order’’ and inserting ‘‘by a military

7 commission’’; and

8 (ii) by striking ‘‘at Guantanamo Bay,

9 Cuba’’; and

10 (B) in clause (ii), by striking ‘‘pursuant to

11 such military order’’ and inserting ‘‘by the mili12 tary commission’’; and

13 (4) in subparagraph (D)(i), by striking ‘‘speci14 fied in the military order’’ and inserting ‘‘specified

15 for a military commission’’.

16 SEC. 10. DETENTION COVERED BY REVIEW OF DECISIONS

17 OF COMBATANT STATUS REVIEW TRIBUNALS

18 OF PROPRIETY OF DETENTION.

19 Section 1005(e)(2)(B)(i) of the Detainee Treatment

20 Act of 2005 (title X of Public Law 109–148; 119 Stat.

21 2742; 10 U.S.C. 801 note) is amended by striking ‘‘the
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1 Department of Defense at Guantanamo Bay, Cuba’’ and

2 inserting ‘‘the United States’’.

Passed the Senate September 28, 2006.

Attest:

Secretary.
109TH CONGRESS

2D SESSION S. 3930

AN ACT

To authorize trial by military commission for

violations of the law of war, and for other purposes.