II 

Calendar No. 611 

109TH CONGRESS 

2D SESSION S. 3901 

To authorize trial by military commission for violations of the law of war, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 14, 2006 

Mr. WARNER, from the Committee on Armed Services, reported the following 

original bill; which was read twice and placed on the calendar 

A BILL 

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. 

4 This Act may be cited as the ‘‘Military Commissions 

5 Act of 2006’’. 

6 SEC. 2. FINDINGS. 

7 Congress makes the following findings: 

8 (1) The Constitution of the United States 

9 grants to Congress the power ‘‘To define and punish 


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1 . . . Offenses against the Law of Nations’’, as well 

2 as the power ‘‘To declare War . . . To raise and sup3 port Armies . . . [and] To provide and maintain a 

4 Navy’’. 

5 (2) The military commission is the traditional 

6 tribunal for the trial of persons engaged in hostilities 

7 for violations of the law of war. 

8 (3) Congress has, in the past, both authorized 

9 the use of military commission by statute and recog10 nized the existence and authority of military com11 missions. 

12 (4) Military commissions have been convened 

13 both by the President and by military commanders 

14 in the field to try offenses against the law of war. 

15 (5) It is in the national interest for Congress to 

16 exercise its authority under the Constitution to enact 

17 legislation authorizing and regulating the use of 

18 military commissions to try and punish violations of 

19 the law of war. 

20 (6) Military commissions established and oper21 ating under chapter 47A of title 10, United States 

22 Code (as enacted by this Act), are regularly con23 stituted courts affording, in the words of Common 

24 Article 3 of the Geneva Conventions, ‘‘all the judicial 


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1 guarantees which are recognized as indispensable by 

2 civilized peoples’’. 

3 SEC. 3. AUTHORIZATION FOR MILITARY COMMISSIONS. 

4 (a) IN GENERAL.—The President is authorized to es5 tablish military commissions for the trial of alien unlawful 

6 enemy combatants engaged in hostilities against the 

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

8 offenses specifically made triable by military commission 

9 as provided in chapter 47 of title 10, United States Code, 

10 and chapter 47A of title 10, United States Code (as en11 acted by this Act). 

12 (b) CONSTRUCTION.—The authority in subsection (a) 

13 may not be construed to alter or limit the authority of 

14 the President under the Constitution and laws of the 

15 United States to establish military commissions for areas 

16 declared to be under martial law or in occupied territories 

17 should circumstances so require. 

18 (c) SCOPE OF PUNISHMENT AUTHORITY.—A military 

19 commission established pursuant to subsection (a) shall 

20 have authority to impose upon any person found guilty 

21 under a proceeding under chapter 47A of title 10, United 

22 States Code (as so enacted), a sentence that is appropriate 

23 for the offense or offenses for which there is a finding 

24 of guilt, including a sentence of death if authorized under 

25 such chapter, imprisonment for life or a term of years, 


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1 payment of a fine or restitution, or such other lawful pun2 ishment or condition of punishment as the military com3 mission shall direct. 

4 (d) EXECUTION OF PUNISHMENT.—The Secretary of 

5 Defense is authorized to carry out a sentence of punish6 ment imposed by a military commission established pursu7 ant to subsection (a) in accordance with such procedures 

8 as the Secretary may prescribe. 

9 (e) ANNUAL REPORT ON TRIALS BY MILITARY COM10 MISSIONS.— 

11 (1) ANNUAL REPORT REQUIRED.—Not later 

12 than December 31 each year, the Secretary of De13 fense shall submit to the Committees on Armed 

14 Services of the Senate and the House of Representa15 tives a report on any trials conducted by military 

16 commissions established pursuant to subsection (a) 

17 during such year. 

18 (2) FORM.—Each report under this subsection 

19 shall be submitted in unclassified form, but may in20 clude a classified annex. 

21 SEC. 4. MILITARY COMMISSIONS. 

22 (a) MILITARY COMMISSIONS.— 

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

24 United States Code, is amended by inserting after 

25 chapter 47 the following new chapter: 


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1 ‘‘CHAPTER 47A—MILITARY COMMISSIONS 

‘‘SUBCHAPTER ...................................................................................... Sec.

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

‘‘II. Composition of Military Commissions ............................................... 948h.

‘‘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 ............................................................................. 950aa. 

2 ‘‘SUBCHAPTER I—GENERAL PROVISIONS 

‘‘Sec. 

‘‘948a. Definitions. 

‘‘948b. Military commissions generally. 

‘‘948c. Persons subject to military commissions. 

‘‘948d. Jurisdiction of military commissions. 

3 ‘‘§ 948a. Definitions 

4 ‘‘In this chapter: 

5 ‘‘(1) ALIEN.—The term ‘alien’ means an indi6 vidual who is not a citizen of the United States. 

7 ‘‘(2) CLASSIFIED INFORMATION.—The term 

8 ‘classified information’ means the following: 

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

10 been determined by the United States Govern11 ment pursuant to statute, Executive order, or 

12 regulation to require protection against unau13 thorized disclosure for reasons of national secu14 rity. 

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

16 defined in section 11 y. of the Atomic Energy 

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


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1 ‘‘(3) LAWFUL ENEMY COMBATANT.—The term 

2 ‘lawful enemy combatant’ means an individual who 

3 is— 

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

5 State party engaged in hostilities against the 

6 United States; 

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

8 corps, or organized resistance movement belong9 ing to a State party engaged in such hostilities, 

10 which are under responsible command, wear a 

11 fixed distinctive sign recognizable at a distance, 

12 carry their arms openly, and abide by the law 

13 of war; or 

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

15 who professes allegiance to a government en16 gaged in such hostilities, but not recognized by 

17 the United States. 

18 ‘‘(4) UNLAWFUL ENEMY COMBATANT.—The 

19 term ‘unlawful enemy combatant’ means an indi20 vidual engaged in hostilities against the United 

21 States who is not a lawful enemy combatant. 

22 ‘‘§ 948b. Military commissions generally 

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

24 governing the use of military commissions to try alien un25 lawful enemy combatants engaged in hostilities against the 


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

2 offenses triable by military commission. 

3 ‘‘(b) CONSTRUCTION OF PROVISIONS.—The proce4 dures for military commissions set forth in this chapter 

5 are based upon the procedures for trial by general courts6 martial under chapter 47 of this title (the Uniform Code 

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

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

9 specifically provided therein or in this chapter, and many 

10 of the provisions of chapter 47 of this title are by their 

11 terms inapplicable to military commissions. The judicial 

12 construction and application of chapter 47 of this title, 

13 while instructive, is therefore not of its own force binding 

14 on military commissions established under this chapter. 

15 ‘‘(c) INAPPLICABILITY OF CERTAIN PROVISIONS.— 

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

17 to trial by military commission under this chapter: 

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

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

20 including any rule of courts-martial relating to 

21 speedy trial. 

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

23 31(a), (b), and (d) of the Uniform Code of Military 

24 Justice), relating to compulsory self-incrimination. 


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

2 Code of Military Justice), relating to pretrial inves3 tigation. 

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

5 apply to trial by military commission under this chapter 

6 only to the extent provided by the terms of such provisions 

7 or by this chapter. 

8 ‘‘(d) TREATMENT OF RULINGS AND PRECEDENTS.— 

9 The findings, holdings, interpretations, and other prece10 dents of military commissions under this chapter may not 

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

12 proceeding of a court-martial convened under chapter 47 

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

14 other precedents of military commissions under this chap15 ter may not form the basis of any holding, decision, or 

16 other determination of a court-martial convened under 

17 that chapter. 

18 ‘‘§ 948c. Persons subject to military commissions 

19 ‘‘Any alien unlawful enemy combatant engaged in 

20 hostilities or having supported hostilities against the 

21 United States is subject to trial by military commission 

22 as set forth in this chapter. 

23 ‘‘§ 948d. Jurisdiction of military commissions 

24 ‘‘A military commission under this chapter shall have 

25 jurisdiction to try persons subject to this chapter for any 


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1 offense made punishable by this chapter, sections 904 and 

2 906 of this title (articles 104 and 106 of the Uniform Code 

3 of Military Justice), or the law of war, and may, under 

4 such limitations as the President may prescribe, adjudge 

5 any punishment not forbidden by this chapter, including 

6 the penalty of death when authorized under this chapter, 

7 chapter 47 of this title, or the law of war. 

8 ‘‘SUBCHAPTER II—COMPOSITION OF MILITARY 

9 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. 

10 ‘‘§ 948h. Who may convene military commissions 

11 ‘‘Military commissions under this chapter may be 

12 convened by the Secretary of Defense or by any officer 

13 or official of the United States designated by the Secretary 

14 for that purpose. 

15 ‘‘§ 948i. Who may serve on military commissions 

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

17 armed forces on active duty is eligible to serve on a mili18 tary commission under this chapter, including commis19 sioned officers of the reserve components of the armed 

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1 tional Guard on active duty in Federal service, or retired 

2 commissioned officers recalled to active duty. 

3 ‘‘(b) DETAIL OF MEMBERS.—When convening a mili4 tary commission under this chapter, the convening author5 ity shall detail as members thereof such members of the 

6 armed forces eligible under subsection (a) who, as in the 

7 opinion of the convening authority, are best qualified for 

8 the duty by reason of age, education, training, experience, 

9 length of service, and judicial temperament. No member 

10 of an armed force is eligible to serve as a member of a 

11 military commission when such member is the accuser or 

12 a witness for the prosecution or has acted as an investi13 gator or counsel in the same case. 

14 ‘‘(c) EXCUSE OF MEMBERS.—Before a military com15 mission under this chapter is assembled for the trial of 

16 a case, the convening authority may excuse a member 

17 from participating in the case. 

18 ‘‘§ 948j. Military judge of a military commission 

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

20 shall be detailed to each military commission under this 

21 chapter. The Secretary of Defense shall prescribe regula22 tions providing for the manner in which military judges 

23 are so detailed to military commissions. The military judge 

24 shall preside over each military commission to which he 

25 has been detailed. 


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1 ‘‘(b) ELIGIBILITY.—A military judge shall be a com2 missioned officer of the armed forces who is a member 

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

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

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

6 26 of the Uniform Code of Military Justice) as a military 

7 judge in general courts-martial by the Judge Advocate 

8 General of the armed force of which such military judge 

9 is a member. 

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

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

12 military commission under this chapter if he is the accuser 

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

14 the same case. 

15 ‘‘(d) CONSULTATION WITH MEMBERS; INELIGI16 BILITY TO VOTE.—A military judge detailed to a military 

17 commission under this chapter may not consult with the 

18 members except in the presence of the accused (except as 

19 otherwise provided in section 949d of this title), trial coun20 sel, and defense counsel, nor may he vote with the mem21 bers. 

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

23 is certified to be qualified for duty as a military judge of 

24 a military commission under this chapter may perform 

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


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1 approval of the Judge Advocate General of the armed 

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

3 of such Judge Advocate General. 

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

5 CONVENING AUTHORITY.—The convening authority of a 

6 military commission under this chapter shall not prepare 

7 or review any report concerning the effectiveness, fitness, 

8 or efficiency of a military judge detailed to the military 

9 commission which relates to his performance of duty as 

10 a military judge on the military commission. 

11 ‘‘§ 948k. Detail of trial counsel and defense counsel 

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

13 counsel and military defense counsel shall be detailed for 

14 each military commission under this chapter. 

15 ‘‘(2) Assistant trial counsel and assistant and asso16 ciate defense counsel may be detailed for a military com17 mission under this chapter. 

18 ‘‘(3) Military defense counsel for a military commis19 sion under this chapter shall be detailed as soon as prac20 ticable. 

21 ‘‘(4) The Secretary of Defense shall prescribe regula22 tions providing for the manner in which trial counsel and 

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1 thorized to detail such counsel for such military commis2 sions. 

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 is— 

9 ‘‘(A) 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) certified as competent to perform du13 ties as trial counsel before general courts-mar14 tial by the Judge Advocate General of the 

15 armed force of which he is a member; or 

16 ‘‘(2) a civilian who is— 

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

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

19 ‘‘(B) otherwise qualified to practice before 

20 the military commission pursuant to regulations 

21 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 military commission quali7 fied court reporters, who shall prepare a verbatim record 

8 of the proceedings of and testimony taken before the mili9 tary commission. 

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

11 Secretary of Defense may prescribe, the convening author12 ity of a military commission under this chapter may detail 

13 to or employ for the military commission interpreters who 

14 shall interpret for the military commission, and, as nec15 essary, for trial counsel and defense counsel for the mili16 tary commission, and for the accused. 

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

18 military commission under this chapter shall be under the 

19 control of the convening authority of the military commis20 sion, who shall also be responsible for preparing the record 

21 of the proceedings of the military commission. 

22 ‘‘§ 948m. Number of members; excuse of members; ab23 sent and additional members 

24 ‘‘(a) NUMBER OF MEMBERS.—(1) A military com25 mission under this chapter shall, except as provided in 

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


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

2 commission under this chapter may be sentenced to a pen3 alty of death, the military commission shall have the num4 ber of members prescribed by section 949m(c) of this title. 

5 ‘‘(b) EXCUSE OF MEMBERS.—No member of a mili6 tary commission under this chapter may be absent or ex7 cused after the military commission has been assembled 

8 for the trial of a case unless excused— 

9 ‘‘(1) as a result of challenge; 

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

11 or other good cause; or 

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

13 good cause. 

14 ‘‘(c) ABSENT AND ADDITIONAL MEMBERS.—When15 ever a military commission under this chapter is reduced 

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

17 the trial may not proceed unless the convening authority 

18 details new members sufficient to provide not less than 

19 such number. The trial may proceed with the new mem20 bers present after the recorded evidence previously intro21 duced before the members has been read to the military 

22 commission in the presence of the military judge, the ac23 cused (except as provided in section 949d of this title), 

24 and counsel for both sides. 


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1 ‘‘SUBCHAPTER III—PRE-TRIAL PROCEDURE 

‘‘Sec. 

‘‘948q. Charges and specifications. 

‘‘948r. Compulsory self-incrimination prohibited; statements obtained by torture 

or cruel, inhuman, or degrading treatment. 

‘‘948s. Service of charges. 

2 ‘‘§ 948q. Charges and specifications 

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

4 specifications against an accused in a military commission 

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

6 chapter 47 of this title under oath before a commissioned 

7 officer of the armed forces authorized to administer oaths 

8 and shall state— 

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

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

11 and 

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

13 knowledge and belief. 

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

15 the charges and specifications in accordance with sub16 section (a), the accused shall be informed of the charges 

17 and specifications against him as soon as practicable. 

18 ‘‘§ 948r. Compulsory self-incrimination prohibited; 

19 statements obtained by torture or cruel, 

20 inhuman, or degrading treatment 

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

22 testify against himself at a proceeding of a military com23 mission under this chapter. 


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1 ‘‘(b) STATEMENTS OBTAINED BY TORTURE OR

2 CRUEL, INHUMAN, OR DEGRADING TREATMENT.—A 

3 statement obtained by use of torture or by cruel, inhuman, 

4 or degrading treatment prohibited by section 1003 of the 

5 Detainee Treatment Act of 2005 (42 U.S.C. 2000dd), 

6 whether or not under color of law, shall not be admissible 

7 in a military commission under this chapter, except 

8 against a person accused of torture or such treatment as 

9 evidence the statement was made. 

10 ‘‘(c) STATEMENTS OBTAINED BY ALLEGED COER11 CION NOT AMOUNTING TO TORTURE OR CRUEL, INHU12 MAN, OR DEGRADING TREATMENT.—An otherwise admis13 sible statement obtained through the use of alleged coer14 cion not amounting to torture or cruel, inhuman, or de15 grading treatment prohibited by section 1003 of the De16 tainee Treatment Act of 2005 may be admitted in evidence 

17 in a military commission under this chapter only if the 

18 military judge finds that— 

19 ‘‘(1) the totality of the circumstances under 

20 which the statement was made render it reliable and 

21 possessing sufficient probative value; and 

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

23 served by admission of the statement into evidence. 


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1 ‘‘§ 948s. Service of charges 

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

3 commission under this chapter shall cause to be served 

4 upon the accused and military defense counsel a copy of 

5 the charges upon which trial is to be had in English and, 

6 if appropriate, in another language that the accused un7 derstands, sufficiently in advance of trial to prepare a de8 fense. 

9 ‘‘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. 

10 ‘‘§ 949a. Rules 

11 ‘‘(a) PROCEDURES AND RULES OF EVIDENCE.—Pre12 trial, trial, and post-trial procedures, including elements 

13 and modes of proof, for cases triable by military commis14 sion under this chapter may be prescribed by the Secretary 

15 of Defense. Such procedures may not be contrary to or 

16 inconsistent with this chapter. Except as otherwise pro17 vided in this chapter or chapter 47 of this title, the proce18 dures and rules of evidence applicable in trials by general 


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1 courts-martial of the United States shall apply in trials 

2 by military commission under this chapter. 

3 ‘‘(b) EXCEPTIONS.—(1) The Secretary of Defense, in 

4 consultation with the Attorney General, may make such 

5 exceptions in the applicability in trials by military commis6 sion under this chapter from the procedures and rules of 

7 evidence otherwise applicable in general courts-martial as 

8 may be required by the unique circumstances of the con9 duct of military and intelligence operations during hos10 tilities or by other practical need. 

11 ‘‘(2) Notwithstanding any exceptions authorized by 

12 paragraph (1), the procedures and rules of evidence in 

13 trials by military commission under this chapter shall in14 clude, at a minimum, the following rights: 

15 ‘‘(A) To examine and respond to all evidence 

16 considered by the military commission on the issue 

17 of guilt or innocence and for sentencing. 

18 ‘‘(B) To be present at all sessions of the mili19 tary commission (other than those for deliberations 

20 or voting), except when excluded under section 949d 

21 of this title. 

22 ‘‘(C) To the assistance of counsel. 

23 ‘‘(D) To self-representation, if the accused 

24 knowingly and competently waives the assistance of 

25 counsel, subject to the provisions of paragraph (4). 


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1 ‘‘(E) To the suppression of evidence that is not 

2 reliable or probative. 

3 ‘‘(F) To the suppression of evidence the pro4 bative value of which is substantially outweighed 

5 by— 

6 ‘‘(i) the danger of unfair prejudice, confu7 sion of the issues, or misleading the members; 

8 or 

9 ‘‘(ii) considerations of undue delay, waste 

10 of time, or needless presentation of cumulative 

11 evidence. 

12 ‘‘(3) In making exceptions in the applicability in 

13 trials by military commission under this chapter from the 

14 procedures and rules otherwise applicable in general 

15 courts-martial, the Secretary of Defense may provide the 

16 following: 

17 ‘‘(A) Evidence seized outside the United States 

18 shall not be excluded from trial by military commis19 sion on the grounds that the evidence was not seized 

20 pursuant to a search warrant or authorization. 

21 ‘‘(B) A statement of the accused that is other22 wise admissible shall not be excluded from trial by 

23 military commission on grounds of alleged coercion 

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1 dence complies with the provisions of section 948r of 

2 this title. 

3 ‘‘(C) Evidence shall be admitted as authentic so 

4 long as— 

5 ‘‘(i) the military judge of the military com6 mission determines that there is sufficient evi7 dence that the evidence is what it is claimed to 

8 be; and 

9 ‘‘(ii) the military judge instructs the mem10 bers that they may consider any issue as to au11 thentication or identification of evidence in de12 termining the weight, if any, to be given to the 

13 evidence. 

14 ‘‘(D) Hearsay evidence not otherwise admissible 

15 under the rules of evidence applicable in trial by 

16 general courts-martial may be admitted in a trial by 

17 military commission only if— 

18 ‘‘(i) the proponent of the evidence makes 

19 known to the adverse party, sufficiently in ad20 vance of trial or hearing to provide the adverse 

21 party with a fair opportunity to meet the evi22 dence, the proponent’s intention to offer the 

23 evidence, and the particulars of the evidence 

24 (including information on the circumstances 

25 under which the evidence was obtained); and 


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1 ‘‘(ii) the military judge finds that the total2 ity of the circumstances render the evidence 

3 more probative on the point for which it is of4 fered than other evidence which the proponent 

5 can procure through reasonable efforts, taking 

6 into consideration the unique circumstances of 

7 the conduct of military and intelligence oper8 ations during hostilities. 

9 ‘‘(4)(A) The accused in a military commission under 

10 this chapter who exercises the right to self-representation 

11 under paragraph (2)(D) shall conform his deportment and 

12 the conduct of the defense to the rules of evidence, proce13 dure, and decorum applicable to trials by military commis14 sion. 

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

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

17 total revocation by the military judge of the right of self18 representation under paragraph (2)(D). In such case, the 

19 detailed defense counsel of the accused or an appropriately 

20 authorized civilian counsel shall perform the functions nec21 essary for the defense. 

22 ‘‘(c) DELEGATION OF AUTHORITY TO PRESCRIBE

23 REGULATIONS.—The Secretary of Defense may delegate 

24 the authority of the Secretary to prescribe regulations 

25 under this chapter. 


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1 ‘‘§ 949b. Unlawfully influencing action of military 

2 commission 

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

4 military commission under this chapter may censure, rep5 rimand, or admonish the military commission, or any 

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

7 to the findings or sentence adjudged by the military com8 mission, or with respect to any other exercises of its or 

9 their functions in the conduct of the proceedings. 

10 ‘‘(2) No person may attempt to coerce or, by any un11 authorized means, influence— 

12 ‘‘(A) the action of a military commission under 

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

14 findings or sentence in any case; 

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

16 reviewing authority with respect to their judicial 

17 acts; or 

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

19 trial counsel or defense counsel. 

20 ‘‘(3) The provisions of this subsection shall not apply 

21 with respect to— 

22 ‘‘(A) general instructional or informational 

23 courses in military justice if such courses are de24 signed solely for the purpose of instructing members 

25 of a command in the substantive and procedural as26 pects of military commissions; or 


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

2 proceedings by a military judge or counsel. 

3 ‘‘(b) PROHIBITION ON CONSIDERATION OF ACTIONS

4 ON COMMISSION IN EVALUATION OF FITNESS.—In the 

5 preparation of an effectiveness, fitness, or efficiency report 

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

7 for the purpose of determining whether a commissioned 

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

9 grade, or in determining the assignment or transfer of any 

10 such officer or whether any such officer should be retained 

11 on active duty, no person may— 

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

13 duty of any member of a military commission under 

14 this chapter; or 

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

16 to any commissioned officer because of the zeal with 

17 which such officer, in acting as counsel, represented 

18 any accused before a military commission under this 

19 chapter. 

20 ‘‘§ 949c. Duties of trial counsel and defense counsel 

21 ‘‘(a) TRIAL COUNSEL.—The trial counsel of a mili22 tary commission under this chapter shall prosecute in the 

23 name of the United States. 


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

2 represented in his defense before a military commission 

3 under this chapter as provided in this subsection. 

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

5 counsel detailed under section 948k of this title. 

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

7 counsel if retained by the accused, provided that such civil8 ian counsel— 

9 ‘‘(A) is a United States citizen; 

10 ‘‘(B) is admitted to the practice of law in a 

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

12 before a Federal court; 

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

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

15 competent governmental authority for relevant mis16 conduct; 

17 ‘‘(D) has been determined to be eligible for ac18 cess to information classified at the level Secret or 

19 higher; and 

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

21 with all applicable regulations or instructions for 

22 counsel, including any rules of court for conduct 

23 during the proceedings. 

24 ‘‘(4) If the accused is represented by civilian counsel, 

25 military counsel detailed shall act as associate counsel. 


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1 ‘‘(5) The accused is not entitled to be represented by 

2 more than one military counsel. However, the person au3 thorized under regulations prescribed under section 948k 

4 of this title to detail counsel, in such person’s sole discre5 tion, may detail additional military counsel to represent 

6 the accused. 

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

8 for the prosecution who testifies before a military commis9 sion under this chapter. 

10 ‘‘§ 949d. Sessions 

11 ‘‘(a) SESSIONS WITHOUT PRESENCE OF MEM12 BERS.—(1) At any time after the service of charges which 

13 have been referred for trial by military commission under 

14 this chapter, the military judge may call the military com15 mission into session without the presence of the members 

16 for the purpose of— 

17 ‘‘(A) hearing and determining motions raising 

18 defenses or objections which are capable of deter19 mination without trial of the issues raised by a plea 

20 of not guilty; 

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

22 may be ruled upon by the military judge under this 

23 chapter, whether or not the matter is appropriate for 

24 later consideration or decision by the members; 


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

2 the Secretary of Defense, receiving the pleas of the 

3 accused; and 

4 ‘‘(D) performing any other procedural function 

5 which may be performed by the military judge under 

6 this chapter or under rules prescribed pursuant to 

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

8 the presence of the members. 

9 ‘‘(2) Except as provided in subsections (b), (c), and 

10 (d), any proceedings under paragraph (1) shall be con11 ducted in the presence of the accused, defense counsel, and 

12 trial counsel, and shall be made part of the record. 

13 ‘‘(b) DELIBERATION OR VOTE OF MEMBERS.—When 

14 the members of a military commission under this chapter 

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

16 ‘‘(c) CLOSURE OF PROCEEDINGS.—(1) The military 

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

18 of a military commission under this chapter. 

19 ‘‘(2) The military judge may close to the public all 

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

21 upon making a specific finding that such closure is nec22 essary to— 

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

24 could reasonably be expected to cause damage to the 


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1 national security, including intelligence or law en2 forcement sources, methods, or activities; or 

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

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

5 upon a presentation, including a presentation ex parte or 

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

7 ‘‘(4)(A) Subject to the provisions of this paragraph, 

8 classified information shall be handled in accordance with 

9 rules applicable in trials by general courts-martial of the 

10 United States. 

11 ‘‘(B) Classified information shall be protected and is 

12 privileged from disclosure if disclosure would be detri13 mental to the national security. This subparagraph applies 

14 to all stages of proceedings of military commissions under 

15 this chapter. 

16 ‘‘(C) After the original classification authority or 

17 head of the agency concerned has certified in writing that 

18 evidence and the sources thereof have been declassified to 

19 the maximum extent possible, consistent with the require20 ments of national security, the military judge may, to the 

21 extent practicable in accordance with the rules applicable 

22 in trials by court-martial, authorize— 

23 ‘‘(i) the deletion of specified items of classified 

24 information from documents made available to the 

25 accused; 


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1 ‘‘(ii) the substitution of a portion or summary 

2 of the information for such classified documents; or 

3 ‘‘(iii) the substitution of a statement admitting 

4 relevant facts that the classified information would 

5 tend to prove. 

6 ‘‘(D) A claim of privilege under this paragraph, and 

7 any materials in support thereof, shall, upon the request 

8 of the Government, be considered by the military judge 

9 in camera and shall not be disclosed to the accused. 

10 ‘‘(d) EXCLUSION OF ACCUSED FROM CERTAIN PRO11 CEEDINGS.—The military judge may exclude the accused 

12 from any portion of a proceeding upon a determination 

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

14 persists in conduct that justifies exclusion from the court15 room— 

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

17 or 

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

19 the accused. 

20 ‘‘§ 949e. Continuances 

21 ‘‘The military judge in a military commission under 

22 this chapter may, for reasonable cause, grant a continu23 ance to any party for such time, and as often, as may 

24 appear to be just. 


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1 ‘‘§ 949f. Challenges 

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

3 judge and members of a military commission under this 

4 chapter may be challenged by the accused or trial counsel 

5 for cause stated to the military commission. The military 

6 judge shall determine the relevance and validity of chal7 lenges for cause, and may not receive a challenge to more 

8 than one person at a time. Challenges by trial counsel 

9 shall ordinarily be presented and decided before those by 

10 the accused are offered. 

11 ‘‘(b) PEREMPTORY CHALLENGES.—The accused and 

12 trial counsel are each entitled to one peremptory challenge, 

13 but the military judge may not be challenged except for 

14 cause. 

15 ‘‘(c) CHALLENGES AGAINST ADDITIONAL MEM16 BERS.—Whenever additional members are detailed to a 

17 military commission under this chapter, and after any 

18 challenges for cause against such additional members are 

19 presented and decided, the accused and trial counsel are 

20 each entitled to one peremptory challenge against mem21 bers not previously subject to peremptory challenge. 

22 ‘‘§ 949g. Oaths 

23 ‘‘(a) IN GENERAL.—(1) Before performing their re24 spective duties in a military commission under this chap25 ter, military judges, members, trial counsel, defense counVerDate Aug 31 2005 02:24 Sep 15, 2006 Jkt 049200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\S3901.PCS S3901

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1 sel, reporters, and interpreters shall take an oath to per2 form their duties faithfully. 

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

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

5 recording thereof, and whether the oath shall be taken for 

6 all cases in which duties are to be performed or for a par7 ticular case, shall be as provided in regulations prescribed 

8 by the Secretary of Defense. The regulations may provide 

9 that— 

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

11 military judge, trial counsel, or defense counsel may 

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

13 person certified to be qualified or competent for the 

14 duty; and 

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

16 not again be taken at the time the judge advocate 

17 or other person is detailed to that duty. 

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

19 commission under this chapter shall be examined on oath. 

20 ‘‘(c) OATH DEFINED.—In this section, the term 

21 ‘oath’ includes an affirmation. 

22 ‘‘§ 949h. Former jeopardy 

23 ‘‘(a) IN GENERAL.—No person may, without his con24 sent, be tried by a military commission under this chapter 

25 a second time for the same offense. 


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

2 accused has been found guilty by military commission 

3 under this chapter upon any charge or specification is a 

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

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

6 completed. 

7 ‘‘§ 949i. Pleas of the accused 

8 ‘‘(a) PLEA OF NOT GUILTY.—If an accused in a mili9 tary commission under this chapter after a plea of guilty 

10 sets up matter inconsistent with the plea, or if it appears 

11 that the accused has entered the plea of guilty through 

12 lack of understanding of its meaning and effect, or if the 

13 accused fails or refuses to plead, a plea of not guilty shall 

14 be entered in the record, and the military commission shall 

15 proceed as though the accused had pleaded not guilty. 

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

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

18 of guilty has been made by the accused in a military com19 mission under this chapter and accepted by the military 

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

21 may be entered immediately without a vote. The finding 

22 shall constitute the finding of the military commission un23 less the plea of guilty is withdrawn prior to announcement 

24 of the sentence, in which event the proceedings shall con25 tinue as though the accused had pleaded not guilty. 


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1 ‘‘§ 949j. Opportunity to obtain witnesses and other 

2 evidence 

3 ‘‘(a) IN GENERAL.—(1) Defense counsel in a military 

4 commission under this chapter shall have a reasonable op5 portunity to obtain witnesses and other evidence as pro6 vided in regulations prescribed by the Secretary of De7 fense. 

8 ‘‘(2) Process issued in military commissions under 

9 this chapter to compel witnesses to appear and testify and 

10 to compel the production of other evidence— 

11 ‘‘(A) shall be similar to that which courts of the 

12 United States having criminal jurisdiction may law13 fully issue; and 

14 ‘‘(B) shall run to any place where the United 

15 States shall have jurisdiction thereof. 

16 ‘‘(b) DISCLOSURE OF EXCULPATORY EVIDENCE.—As 

17 soon as practicable, trial counsel in a military commission 

18 under this chapter shall disclose to the defense the exist19 ence of any known evidence that reasonably tends to excul20 pate or reduce the degree of guilt of the accused. 

21 ‘‘(c) TREATMENT OF CERTAIN ITEMS.—In accord22 ance with the rules applicable in trials by general courts23 martial in the United States, and to the extent provided 

24 in such rules, the military judge in a military commission 

25 under this chapter may authorize trial counsel, in making 


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1 documents available to the accused pursuant to sub2 sections (a) and (b)— 

3 ‘‘(1) to delete specified items of classified infor4 mation from such documents; 

5 ‘‘(2) to substitute an unclassified summary of 

6 the classified information in such documents; or 

7 ‘‘(3) to substitute an unclassified statement ad8 mitting relevant facts that classified information in 

9 such documents would tend to prove. 

10 ‘‘§ 949k. Defense of lack of mental responsibility 

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

12 defense in a trial by military commission under this chap13 ter that, at the time of the commission of the acts consti14 tuting the offense, the accused, as a result of a severe 

15 mental disease or defect, was unable to appreciate the na16 ture and quality or the wrongfulness of the acts. Mental 

17 disease or defect does not otherwise constitute a defense. 

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

19 commission under this chapter has the burden of proving 

20 the defense of lack of mental responsibility by clear and 

21 convincing evidence. 

22 ‘‘(c) FINDINGS FOLLOWING ASSERTION OF DE23 FENSE.—Whenever lack of mental responsibility of the ac24 cused with respect to an offense is properly at issue in 

25 a military commission under this chapter, the military 


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1 judge shall instruct the members as to the defense of lack 

2 of mental responsibility under this section and shall 

3 charge the members to find the accused— 

4 ‘‘(1) guilty; 

5 ‘‘(2) not guilty; or 

6 ‘‘(3) subject to subsection (d), not guilty by rea7 son of lack of mental responsibility. 

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

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

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

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

12 taken determines that the defense of lack of mental re13 sponsibility has been established. 

14 ‘‘§ 949l. Voting and rulings 

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

16 by members of a military commission under this chapter 

17 on the findings and on the sentence shall be by secret writ18 ten ballot. 

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

20 commission under this chapter shall rule upon all ques21 tions of law, including the admissibility of evidence and 

22 all interlocutory questions arising during the proceedings. 

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

24 question of law or an interlocutory question (other than 

25 the factual issue of mental responsibility of the accused) 


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1 is conclusive and constitutes the ruling of the military 

2 commission. However, a military judge may change his 

3 ruling at any time during the trial. 

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

5 is taken of the findings of a military commission under 

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

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

8 elements of the offense and charge the members— 

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

10 innocent until his guilt is established by legal and 

11 competent evidence beyond a reasonable doubt; 

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

13 is a reasonable doubt as to the guilt of the accused, 

14 the doubt must be resolved in favor of the accused 

15 and he must be acquitted; 

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

17 degree of guilt, the finding must be in a lower de18 gree as to which there is no reasonable doubt; and 

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

20 guilt of the accused beyond a reasonable doubt is 

21 upon the United States. 

22 ‘‘§ 949m. Number of votes required 

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

24 a military commission under this chapter of any offense, 

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


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

2 time the vote is taken. 

3 ‘‘(b) SENTENCES.—(1) Except as provided in para4 graphs (2) and (3), sentences shall be determined by a 

5 military commission by the concurrence of two-thirds of 

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

7 ‘‘(2) No person may be sentenced to death by a mili8 tary commission, except insofar as— 

9 ‘‘(A) the penalty of death has been expressly 

10 authorized under this chapter, chapter 47 of this 

11 title, or the law of war for an offense of which the 

12 accused has been found guilty; 

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

14 of death by filing an appropriate notice in advance 

15 of trial; 

16 ‘‘(C) the accused was convicted of the offense 

17 by the concurrence of all the members present at the 

18 time the vote is taken; and 

19 ‘‘(D) all members present at the time the vote 

20 was taken concurred in the sentence of death. 

21 ‘‘(3) No person may be sentenced to life imprison22 ment, or to confinement for more than 10 years, by a mili23 tary commission under this chapter except by the concur24 rence of three-fourths of the members present at the time 

25 the vote is taken. 


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1 ‘‘(c) NUMBER OF MEMBERS REQUIRED FOR PEN2 ALTY OF DEATH.—(1) Except as provided in paragraph 

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

4 number of members of the military commission under this 

5 chapter shall be not less than 12 members. 

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

7 12 members are not reasonably available for a military 

8 commission because of physical conditions or military ex9 igencies, the convening authority shall specify a lesser 

10 number of members for the military commission (but not 

11 fewer than 5 members), and the military commission may 

12 be assembled, and the trial held, with not less than the 

13 number of members so specified. In any such case, the 

14 convening authority shall make a detailed written state15 ment, to be appended to the record, stating why a greater 

16 number of members were not reasonably available. 

17 ‘‘§ 949n. Military commission to announce action 

18 ‘‘A military commission under this chapter shall an19 nounce its findings and sentence to the parties as soon 

20 as determined. 

21 ‘‘§ 949o. Record of trial 

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

23 commission under this chapter shall keep a separate, ver24 batim, record of the proceedings in each case brought be25 fore it, and the record shall be authenticated by the signaVerDate Aug 31 2005 02:24 Sep 15, 2006 Jkt 049200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\S3901.PCS S3901

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1 ture of the military judge. If the record cannot be authen2 ticated by the military judge by reason of his death, dis3 ability, or absence, it shall be authenticated by the signa4 ture of the trial counsel or by a member if the trial counsel 

5 is unable to authenticate it by reason of his death, dis6 ability, or absence. Where appropriate, and as provided 

7 in regulations prescribed by the Secretary of Defense, the 

8 record of a military commission under this chapter may 

9 contain a classified annex. 

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

11 record of the proceedings and testimony shall be prepared 

12 in every military commission under this chapter. 

13 ‘‘(c) PROVISION OF COPY TO ACCUSED.—A copy of 

14 the record of the proceedings of the military commission 

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

16 it is authenticated. If the record contains classified infor17 mation, or a classified annex, the accused shall receive a 

18 redacted version of the record consistent with the require19 ments of section 949d(c)(4) of this title. Defense counsel 

20 shall have access to the unredacted record, as provided 

21 in regulations prescribed by the Secretary of Defense. 

22 ‘‘SUBCHAPTER V—SENTENCES 

‘‘Sec. 

‘‘949s. Cruel or unusual punishments prohibited. 

‘‘949t. Maximum limits. 

‘‘949u. Execution of confinement. 


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1 ‘‘§ 949s. Cruel or unusual punishments prohibited 

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

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

4 punishment, may not be adjudged by a military commis5 sion under this chapter or inflicted under this chapter 

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

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

8 is prohibited under this chapter. 

9 ‘‘§ 949t. Maximum limits 

10 ‘‘The punishment which a military commission under 

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

12 limits as the President or Secretary of Defense may pre13 scribe for that offense. 

14 ‘‘§ 949u. Execution of confinement 

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

16 Secretary of Defense may prescribe, a sentence of confine17 ment adjudged by a military commission under this chap18 ter may be carried into execution by confinement— 

19 ‘‘(1) in any place of confinement under the con20 trol of any of the armed forces; or 

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

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

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

24 ‘‘(b) TREATMENT DURING CONFINEMENT BY OTHER

25 THAN THE ARMED FORCES.—Persons confined under 

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


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

2 same discipline and treatment as persons confined or com3 mitted by the courts of the United States or of the State, 

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

5 situated. 

6 ‘‘SUBCHAPTER VI—POST-TRIAL PROCEDURE 

7 AND REVIEW OF MILITARY COMMISSIONS 

‘‘Sec. 

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

‘‘950b. Review by the convening authority. 

‘‘950c. Waiver or withdrawal of appeal. 

‘‘950d. Appeal by the United States. 

‘‘950e. Rehearings. 

‘‘950f. Review by United States Court of Appeals for the Armed Forces and Supreme Court. 

‘‘950g. Appellate counsel 

‘‘950h. Execution of sentence; suspension of sentence. 

‘‘950i. Finality of proceedings, findings, and sentences. 

8 ‘‘§ 950a. Error of law; lesser included offense 

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

10 military commission under this chapter may not be held 

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

12 materially prejudices the substantial rights of the accused. 

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

14 authority with the power to approve or affirm a finding 

15 of guilty by a military commission under this chapter may 

16 approve or affirm, instead, so much of the finding as in17 cludes a lesser included offense. 

18 ‘‘§ 950b. Review by the convening authority 

19 ‘‘(a) NOTICE TO CONVENING AUTHORITY OF FIND20 INGS AND SENTENCE.—The findings and sentence of a 


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1 military commission under this chapter shall be reported 

2 in writing promptly to the convening authority after the 

3 announcement of the sentence. 

4 ‘‘(b) SUBMITTAL OF MATTERS BY ACCUSED TO CON5 VENING AUTHORITY.—(1) The accused may submit to the 

6 convening authority matters for consideration by the con7 vening authority with respect to the findings and the sen8 tence of the military commission under this chapter. 

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

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

11 within 20 days after accused has been give an authenti12 cated record of trial under section 949o(c) of this title. 

13 ‘‘(B) If the accused shows that additional time is re14 quired for the accused to make a submittal under para15 graph (1), the convening authority may, for good cause, 

16 extend the applicable period under subparagraph (A) for 

17 not more than an additional 20 days. 

18 ‘‘(3) The accused may waive his right to make a sub19 mittal to the convening authority under paragraph (1). 

20 Such a waiver shall be made in writing, and may not be 

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

22 within which the accused may make a submittal under this 

23 subsection shall be deemed to have expired upon the sub24 mittal of a waiver under this paragraph to the convening 

25 authority. 


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

2 authority under this subsection to modify the findings and 

3 sentence of a military commission under this chapter is 

4 a matter of the sole discretion and prerogative of the con5 vening authority. 

6 ‘‘(2) The convening authority is not required to take 

7 action on the findings of a military commission under this 

8 chapter. If the convening authority takes action on the 

9 findings, the convening authority may, in his sole discre10 tion, only— 

11 ‘‘(A) dismiss any charge or specification by set12 ting aside a finding of guilty thereto; or 

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

14 a finding of guilty to an offense that is a lesser in15 cluded offense of the offense stated in the charge. 

16 ‘‘(3)(A) The convening authority shall take action on 

17 the sentence of a military commission under this chapter. 

18 ‘‘(B) Subject to regulations prescribed by the Sec19 retary of Defense, action under this paragraph may be 

20 taken only after consideration of any matters submitted 

21 by the accused under subsection (b) or after the time for 

22 submitting such matters expires, whichever is earlier. 

23 ‘‘(C) In taking action under this paragraph, the con24 vening authority may, in his sole discretion, approve, dis25 approve, commute, or suspend the sentence in whole or 


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1 in part. The convening authority may not increase a sen2 tence beyond that which is found by the military commis3 sion. 

4 ‘‘(4) The convening authority shall serve on the ac5 cused or on defense counsel notice of any action taken by 

6 the convening authority under this subsection. 

7 ‘‘(d) ORDER OF REVISION OR REHEARING.—(1) Sub8 ject to paragraphs (2) and (3), the convening authority 

9 of a military commission under this chapter may, in his 

10 sole discretion, order a proceeding in revision or a rehear11 ing. 

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

13 proceeding in revision may be ordered by the convening 

14 authority if— 

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

16 the record; or 

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

18 action by the military commission with respect to 

19 the findings or sentence that can be rectified without 

20 material prejudice to the substantial rights of the 

21 accused. 

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

23 ‘‘(i) reconsider a finding of not guilty of a spec24 ification or a ruling which amounts to a finding of 

25 not guilty; 


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

2 charge, unless there has been a finding of guilty 

3 under a specification laid under that charge, which 

4 sufficiently alleges a violation; or 

5 ‘‘(iii) increase the severity of the sentence un6 less the sentence prescribed for the offense is man7 datory. 

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

9 authority if the convening authority disapproves the find10 ings and sentence and states the reasons for disapproval 

11 of the findings. If the convening authority disapproves the 

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

13 convening authority shall dismiss the charges. A rehearing 

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

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

16 record to support the findings. A rehearing as to the sen17 tence may be ordered by the convening authority if the 

18 convening authority disapproves the sentence. 

19 ‘‘§ 950c. Waiver or withdrawal of appeal 

20 ‘‘(a) WAIVER OF RIGHT OF REVIEW.—(1) An ac21 cused may file with the convening authority a statement 

22 expressly waiving the right of the accused to appellate re23 view by the United States Court of Appeals for the Armed 

24 Forces under section 950f(a) of this title of the final deci25 sion of the military commission under this chapter. 


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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 of 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 ‘‘(b) 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 ‘‘(c) 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 United States Court of Appeals for 

22 the Armed Forces under section 950f of this title of any 

23 order or ruling of the military judge that— 

24 ‘‘(A) terminates proceedings of the military 

25 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 (c) or 

4 (d) of section 949d of this title. 

5 ‘‘(2) The United States may not appeal under para6 graph (1) an order or ruling that is, or amounts to, a find7 ing of not guilty by the military commission with respect 

8 to a charge or specification. 

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

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

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

12 five days after the date of the order or ruling. 

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

14 forwarded, by means specified in regulations prescribed 

15 the Secretary of Defense, directly to the United States 

16 Court of Appeals for the Armed Forces. In ruling on an 

17 appeal under this section, the Court may act only with 

18 respect to matters of law. 

19 ‘‘§ 950e. Rehearings 

20 ‘‘(a) COMPOSITION OF MILITARY COMMISSION FOR

21 REHEARING.—Each rehearing under this chapter shall 

22 take place before a military commission under this chapter 

23 composed of members who were not members of the mili24 tary commission which first heard the case. 


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1 ‘‘(b) SCOPE OF REHEARING.—(1) Upon a rehear2 ing— 

3 ‘‘(A) the accused may not be tried for any of4 fense of which he was found not guilty by the first 

5 military commission; and 

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

7 original sentence may be imposed unless— 

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

9 of guilty of an offense not considered upon the 

10 merits in the original proceedings; or 

11 ‘‘(ii) the sentence prescribed for the of12 fense is mandatory. 

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

14 the first military commission was in accordance with a 

15 pretrial agreement and the accused at the rehearing 

16 changes his plea with respect to the charges or specifica17 tions upon which the pretrial agreement was based, or oth18 erwise does not comply with pretrial agreement, the sen19 tence as to those charges or specifications may include any 

20 punishment not in excess of that lawfully adjudged at the 

21 first military commission. 

22 ‘‘§ 950f. Review by United States Court of Appeals for 

23 the Armed Forces and Supreme Court 

24 ‘‘(a) REVIEW BY UNITED STATES COURT OF AP25 PEALS FOR THE ARMED FORCES.—(1) Subject to the proVerDate Aug 31 2005 02:24 Sep 15, 2006 Jkt 049200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 E:\BILLS\S3901.PCS S3901

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1 visions of this subsection, the United States Court of Ap2 peals for the Armed Forces shall have exclusive jurisdic3 tion to determine the final validity of any judgment ren4 dered by a military commission under this chapter. 

5 ‘‘(2) The United States Court of Appeals for the 

6 Armed Forces may not determine the final validity of a 

7 judgment of a military commission under this subsection 

8 until all other appeals from the judgment under this chap9 ter have been waived or exhausted. 

10 ‘‘(3)(A) An accused may seek a determination by the 

11 United States Court of Appeals for the Armed Forces of 

12 the final validity of the judgment of the military commis13 sion under this subsection only upon petition to the Court 

14 for such determination. 

15 ‘‘(B) A petition on a judgment under subparagraph 

16 (A) shall be filed by the accused in the Court not later 

17 than 20 days after the date on which written notice of 

18 the final decision of the military commission is served on 

19 the accused or defense counsel. 

20 ‘‘(C) The accused may not file a petition under sub21 paragraph (A) if the accused has waived the right to ap22 pellate review under section 950c(a) of this title. 

23 ‘‘(4) The determination by the United States Court 

24 of Appeals for the Armed Forces of the final validity of 

25 a judgment of a military commission under this subsection 


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1 shall be governed by the provisions of section 1005(e)(3) 

2 of the Detainee Treatment Act of 2005 (42 U.S.C. 801 

3 note). 

4 ‘‘(b) REVIEW BY SUPREME COURT.—The Supreme 

5 Court of the United States may review by writ of certiorari 

6 pursuant to section 1257 of title 28 the final judgment 

7 of the United States Court of Appeals for the Armed 

8 Forces in a determination under subsection (a). 

9 ‘‘§ 950g. Appellate counsel 

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

11 shall, by regulation, establish procedures for the appoint12 ment of appellate counsel for the United States and for 

13 the accused in military commissions under this chapter. 

14 Appellate counsel shall meet the qualifications of counsel 

15 for appearing before military commissions under this 

16 chapter. 

17 ‘‘(b) REPRESENTATION OF UNITED STATES.—Appel18 late counsel may represent the United States in any ap19 peal or review proceeding under this chapter. Appellate 

20 Government counsel may represent the United States be21 fore the Supreme Court in case arising under this chapter 

22 when requested to do so by the Attorney General. 

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

24 shall be represented before the United States Court of Ap25 peals for the Armed Forces or the Supreme Court by miliVerDate Aug 31 2005 02:24 Sep 15, 2006 Jkt 049200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 E:\BILLS\S3901.PCS S3901

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1 tary appellate counsel, or by civilian counsel if retained 

2 by him. 

3 ‘‘§ 950h. Execution of sentence; suspension of sen4 tence 

5 ‘‘(a) EXECUTION OF SENTENCE OF DEATH ONLY

6 UPON APPROVAL BY THE PRESIDENT.—If the sentence 

7 of a military commission under this chapter extends to 

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

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

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

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

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

13 UPON FINAL JUDGMENT OF LEGALITY OF PRO14 CEEDINGS.—(1) If the sentence of a military commission 

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

16 be executed until there is a final judgement as to the legal17 ity of the proceedings (and with respect to death, approval 

18 under subsection (a)). 

19 ‘‘(2) A judgement as to legality of proceedings is final 

20 for purposes of paragraph (1) when— 

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

22 for review by the United States Court of Appeals for 

23 the Armed Forces has expired and the accused has 

24 not filed a timely petition for such review and the 

25 case is not otherwise under review by the Court; or 


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

2 judgment of the United States Court of Appeals for 

3 the Armed Forces and (A) a petition for a writ of 

4 certiorari is not timely filed, (B) such a petition is 

5 denied by the Supreme Court, or (C) review is other6 wise completed in accordance with the judgment of 

7 the Supreme Court. 

8 ‘‘(c) SUSPENSION OF SENTENCE.—The Secretary of 

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

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

11 of any sentence or part thereof in the case, except a sen12 tence of death. 

13 ‘‘§ 950i. Finality of proceedings, findings, and sen14 tences 

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

16 trial provided by this chapter, and the proceedings, find17 ings, and sentences of military commissions as approved, 

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

19 and conclusive. Orders publishing the proceedings of mili20 tary commissions under this chapter are binding upon all 

21 departments, courts, agencies, and officers of the United 

22 States, except as otherwise provided by the President. 

23 ‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS FOR RE24 VIEW OF MILITARY COMMISSION PROCEDURES AND AC25 TIONS.—Except as otherwise provided in this chapter and 


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1 notwithstanding any other provision of law (including sec2 tion 2241 of title 28 or any other habeas corpus provi3 sion), no court, justice, or judge shall have jurisdiction to 

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

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

6 enactment of this chapter, relating to the prosecution, 

7 trial, or judgment of a military commission under this 

8 chapter, including challenges to the lawfulness of proce9 dures of military commissions under this chapter. 

10 ‘‘SUBCHAPTER VII—PUNITIVE MATTERS 

‘‘Sec. 

‘‘950aa. Definitions; construction of certain offenses; common circumstances. 

‘‘950bb. Principals. 

‘‘950cc. Accessory after the fact. 

‘‘950dd. Conviction of lesser offenses. 

‘‘950ee. Attempts. 

‘‘950ff. Conspiracy. 

‘‘950gg. Solicitation. 

‘‘950hh. Murder of protected persons. 

‘‘950ii. Attacking civilians. 

‘‘950jj. Attacking civilian objects. 

‘‘950kk. Attacking protected property. 

‘‘950ll. Pillaging. 

‘‘950mm. Denying quarter. 

‘‘950nn. Taking hostages. 

‘‘950oo. Employing poison or similar weapons. 

‘‘950pp. Using protected persons as a shield. 

‘‘950qq. Using protected property as a shield. 

‘‘950rr. Torture. 

‘‘950ss. Cruel, unusual, or inhumane treatment or punishment. 

‘‘950tt. Intentionally causing serious bodily injury. 

‘‘950uu. Mutilating or maiming. 

‘‘950vv. Murder in violation of the law of war. 

‘‘950ww. Destruction of property in violation of the law of war. 

‘‘950xx. Using treachery or perfidy. 

‘‘950yy. Improperly using a flag of truce. 

‘‘950zz. Improperly using a distinctive emblem. 

‘‘950aaa. Intentionally mistreating a dead body. 

‘‘950bbb. Rape. 

‘‘950ccc. Hijacking or hazarding a vessel or aircraft. 

‘‘950ddd. Terrorism. 

‘‘950eee. Providing material support for terrorism. 

‘‘950fff. Wrongfully aiding the enemy. 


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‘‘950ggg. Spying. 

‘‘950hhh. Contempt. 

‘‘950iii. Perjury and obstruction of justice. 

1 ‘‘§ 950aa. Definitions; construction of certain offenses; 

2 common circumstances 

3 ‘‘(a) DEFINITIONS.—In this subchapter: 

4 ‘‘(1) The term ‘military objective’ means com5 batants and those objects during an armed conflict 

6 which, by their nature, location, purpose, or use, ef7 fectively contribute to the war-fighting or war-sus8 taining capability of an opposing force and whose 

9 total or partial destruction, capture, or neutraliza10 tion would constitute a definite military advantage 

11 to the attacker under the circumstances at the time 

12 of an attack. 

13 ‘‘(2) The term ‘protected person’ means any 

14 person entitled to protection under one or more of 

15 the Geneva Conventions, including civilians not tak16 ing an active part in hostilities, military personnel 

17 placed out of combat by sickness, wounds, or deten18 tion, and military medical or religious personnel. 

19 ‘‘(3) The term ‘protected property’ means any 

20 property specifically protected by the law of war, in21 cluding buildings dedicated to religion, education, 

22 art, science, or charitable purposes, historic monu23 ments, hospitals, and places where the sick and 

24 wounded are collected, but only if and to the extent 


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1 such property is not being used for military purposes 

2 or is not otherwise a military objective. The term in3 cludes objects properly identified by one of the dis4 tinctive emblems of the Geneva Conventions, but 

5 does not include civilian property that is a military 

6 objective. 

7 ‘‘(b) CONSTRUCTION OF CERTAIN OFFENSES.—The 

8 intent required for offenses under sections 950hh, 950ii, 

9 950jj, 950kk, and 950ss of this title precludes their appli10 cability with regard to collateral damage or to death, dam11 age, or injury incident to a lawful attack. 

12 ‘‘(c) COMMON CIRCUMSTANCES.—An offense speci13 fied in this subchapter is triable by military commission 

14 under this chapter only if the offense is committed in the 

15 context of and associated with armed conflict. 

16 ‘‘§ 950bb. Principals 

17 ‘‘Any person punishable under this chapter who— 

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

19 chapter, or aids, abets, counsels, commands, or pro20 cures its commission; or 

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

22 performed by him would be punishable by this chap23 ter, 

24 is a principal. 


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1 ‘‘§ 950cc. 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 ‘‘§ 950dd. Conviction of lesser offenses 

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 ‘‘§ 950ee. 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 comVerDate Aug 31 2005 02:24 Sep 15, 2006 Jkt 049200 PO 00000 Frm 00057 Fmt 6652 Sfmt 6201 E:\BILLS\S3901.PCS S3901

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1 mit an offense although it appears on the trial that the 

2 offense was consummated. 

3 ‘‘§ 950ff. Conspiracy 

4 ‘‘Any person subject to this chapter who conspires to 

5 commit one or more substantive offenses triable by mili6 tary commission under this subchapter, and who know7 ingly does any overt act to effect the object of the con8 spiracy, shall be punished, if death results to one or more 

9 of the victims, by death or such other punishment as a 

10 military commission under this chapter may direct, and, 

11 if death does not result to any of the victims, by such pun12 ishment, other than death, as a military commission under 

13 this chapter may direct. 

14 ‘‘§ 950gg. Solicitation 

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

16 advises another or others to commit one or more sub17 stantive offenses triable by military commission under this 

18 chapter shall, if the offense solicited or advised is at19 tempted or committed, be punished with the punishment 

20 provided for the commission of the offense, but, if the of21 fense solicited or advised is not committed or attempted, 

22 he shall be punished as a military commission under this 

23 chapter may direct. 


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1 ‘‘§ 950hh. Murder of protected persons 

2 ‘‘Any person subject to this chapter who intentionally 

3 kills one or more protected persons shall be punished by 

4 death or such other punishment as a military commission 

5 under this chapter may direct. 

6 ‘‘§ 950ii. Attacking civilians 

7 ‘‘Any person subject to this chapter who intentionally 

8 engages in an attack upon a civilian population as such, 

9 or individual civilians not taking active part in hostilities, 

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

11 victims, by death or such other punishment as a military 

12 commission under this chapter may direct, and, if death 

13 does not result to any of the victims, by such punishment, 

14 other than death, as a military commission under this 

15 chapter may direct. 

16 ‘‘§ 950jj. Attacking civilian objects 

17 ‘‘Any person subject to this chapter who intentionally 

18 engages in an attack upon a civilian object that is not a 

19 military objective shall be punished as a military commis20 sion under this chapter may direct. 

21 ‘‘§ 950kk. Attacking protected property 

22 ‘‘Any person subject to this chapter who intentionally 

23 engages in an attack upon protected property shall be pun24 ished as a military commission under this chapter may 

25 direct. 


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1 ‘‘§ 950ll. Pillaging 

2 ‘‘Any person subject to this chapter who intentionally 

3 and in the absence of military necessity appropriates or 

4 seizes property for private or personal use, without the 

5 consent of a person with authority to permit such appro6 priation or seizure, shall be punished as a military com7 mission under this chapter may direct. 

8 ‘‘§ 950mm. Denying quarter 

9 ‘‘Any person subject to this chapter who, with effec10 tive command or control over subordinate groups, de11 clares, orders, or otherwise indicates to those groups that 

12 there shall be no survivors or surrender accepted, with the 

13 intent to threaten an adversary or to conduct hostilities 

14 such that there would be no survivors or surrender accept15 ed, shall be punished as a military commission under this 

16 chapter may direct. 

17 ‘‘§ 950nn. Taking hostages 

18 ‘‘Any person subject to this chapter who, having 

19 knowingly seized or detained one or more persons, threat20 ens to kill, injure, or continue to detain such person or 

21 persons with the intent of compelling any nation, person 

22 other than the hostage, or group of persons to act or re23 frain from acting as an explicit or implicit condition for 

24 the safety or release of such person or persons, shall be 

25 punished, if death results to one or more of the victims, 

26 by death or such other punishment as a military commisVerDate Aug 31 2005 02:24 Sep 15, 2006 Jkt 049200 PO 00000 Frm 00060 Fmt 6652 Sfmt 6201 E:\BILLS\S3901.PCS S3901

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1 sion under this chapter may direct, and, if death does not 

2 result to any of the victims, by such punishment, other 

3 than death, as a military commission under this chapter 

4 may direct. 

5 ‘‘§ 950oo. Employing poison or similar weapons 

6 ‘‘Any person subject to this chapter who inten7 tionally, as a method of warfare, employs a substance or 

8 weapon that releases a substance that causes death or se9 rious and lasting damage to health in the ordinary course 

10 of events, through its asphyxiating, bacteriological, or 

11 toxic properties, shall be punished, if death results to one 

12 or more of the victims, by death or such other punishment 

13 as a military commission under this chapter may direct, 

14 and, if death does not result to any of the victims, by such 

15 punishment, other than death, as a military commission 

16 under this chapter may direct. 

17 ‘‘§ 950pp. Using protected persons as a shield 

18 ‘‘Any person subject to this chapter who positions, 

19 or otherwise takes advantage of, a protected person with 

20 the intent to shield a military objective from attack. or 

21 to shield, favor, or impede military operations, shall be 

22 punished, if death results to one or more of the victims, 

23 by death or such other punishment as a military commis24 sion under this chapter may direct, and, if death does not 

25 result to any of the victims, by such punishment, other 


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1 than death, as a military commission under this chapter 

2 may direct. 

3 ‘‘§ 950qq. Using protected property as a shield 

4 ‘‘Any person subject to this chapter who positions, 

5 or otherwise takes advantage of the location of, protected 

6 property with the intent to shield a military objective from 

7 attack, or to shield, favor, or impede military operations, 

8 shall be punished as a military commission under this 

9 chapter may direct. 

10 ‘‘§ 950rr. Torture 

11 ‘‘(a) OFFENSE.—Any person subject to this chapter 

12 who commits an act specifically intended to inflict severe 

13 physical or mental pain or suffering (other than pain or 

14 suffering incidental to lawful sanctions) upon another per15 son within his custody or physical control for the purpose 

16 of obtaining information or a confession, punishment, in17 timidation, coercion, or any reason based on discrimina18 tion of any kind, shall be punished, if death results to one 

19 or more of the victims, by death or such other punishment 

20 as a military commission under this chapter may direct, 

21 and, if death does not result to any of the victims, by such 

22 punishment, other than death, as a military commission 

23 under this chapter may direct. 

24 ‘‘(b) SEVERE MENTAL PAIN OR SUFFERING DE25 FINED.—In this section, the term ‘severe mental pain or 


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1 suffering’ has the meaning given that term in section 

2 2340(2) of title 18. 

3 ‘‘§ 950ss. Cruel, unusual, or inhumane treatment or 

4 punishment 

5 ‘‘Any person subject to this chapter who subjects an6 other person in their custody or under their physical con7 trol, regardless of nationality or physical location, to cruel, 

8 unusual, or inhumane treatment or punishment prohibited 

9 by the Fifth, Eighth, and 14th Amendments to the Con10 stitution of the United States shall be punished, if death 

11 results to the victim, by death or such other punishment 

12 as a military commission under this chapter may direct, 

13 and, if death does not result to the victim, by such punish14 ment, other than death, as a military commission under 

15 this chapter may direct. 

16 ‘‘§ 950tt. Intentionally causing serious bodily injury 

17 ‘‘(a) OFFENSE.—Any person subject to this chapter 

18 who intentionally causes serious bodily injury to one or 

19 more persons, including lawful combatants, in violation of 

20 the law of war shall be punished, if death results to one 

21 or more of the victims, by death or such other punishment 

22 as a military commission under this chapter may direct, 

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

24 punishment, other than death, as a military commission 

25 under this chapter may direct. 


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1 ‘‘(b) SERIOUS BODILY INJURY DEFINED.—In this 

2 section, the term ‘serious bodily injury’ means bodily in3 jury which involves— 

4 ‘‘(1) a substantial risk of death; 

5 ‘‘(2) extreme physical pain; 

6 ‘‘(3) protracted and obvious disfigurement; or 

7 ‘‘(4) protracted loss or impairment of the func8 tion of a bodily member, organ, or mental faculty. 

9 ‘‘§ 950uu. Mutilating or maiming 

10 ‘‘Any person subject to this chapter who intentionally 

11 injures one or more protected persons by disfiguring the 

12 person or persons by any mutilation of the person or per13 sons, or by permanently disabling any member, limb, or 

14 organ of the body of the person or persons, without any 

15 legitimate medical or dental purpose, shall be punished, 

16 if death results to one or more of the victims, by death 

17 or such other punishment as a military commission under 

18 this chapter may direct, and, if death does not result to 

19 any of the victims, by such punishment, other than death, 

20 as a military commission under this chapter may direct. 

21 ‘‘§ 950vv. Murder in violation of the law of war 

22 ‘‘Any person subject to this chapter who intentionally 

23 kills one or more persons, including lawful combatants, in 

24 violation of the law of war shall be punished by death or 


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1 such other punishment as a military commission under 

2 this chapter may direct. 

3 ‘‘§ 950ww. Destruction of property in violation of the 

4 law of war 

5 ‘‘Any person subject to this chapter who intentionally 

6 destroys property belonging to another person in violation 

7 of the law of war shall punished as a military commission 

8 under this chapter may direct. 

9 ‘‘§ 950xx. Using treachery or perfidy 

10 ‘‘Any person subject to this chapter who, after invit11 ing the confidence or belief of one or more persons that 

12 they were entitled to, or obliged to accord, protection 

13 under the law of war, intentionally makes use of that con14 fidence or belief in killing, injuring, or capturing such per15 son or persons shall be punished, if death results to one 

16 or more of the victims, by death or such other punishment 

17 as a military commission under this chapter may direct, 

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

19 punishment, other than death, as a military commission 

20 under this chapter may direct. 

21 ‘‘§ 950yy. Improperly using a flag of truce 

22 ‘‘Any person subject to this chapter who uses a flag 

23 of truce to feign an intention to negotiate, surrender, or 

24 otherwise suspend hostilities when there is no such intenVerDate Aug 31 2005 02:24 Sep 15, 2006 Jkt 049200 PO 00000 Frm 00065 Fmt 6652 Sfmt 6201 E:\BILLS\S3901.PCS S3901

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1 tion shall be punished as a military commission under this 

2 chapter may direct. 

3 ‘‘§ 950zz. Improperly using a distinctive emblem 

4 ‘‘Any person subject to this chapter who intentionally 

5 uses a distinctive emblem recognized by the law of war 

6 for combatant purposes in a manner prohibited by the law 

7 of war shall be punished as a military commission under 

8 this chapter may direct. 

9 ‘‘§ 950aaa. Intentionally mistreating a dead body 

10 ‘‘Any person subject to this chapter who intentionally 

11 mistreats the body of a dead person, without justification 

12 by legitimate military necessary, shall be punished as a 

13 military commission under this chapter may direct. 

14 ‘‘§ 950bbb. Rape 

15 ‘‘Any person subject to this chapter who forcibly or 

16 with coercion or threat of force wrongfully invades the 

17 body of a person by penetrating, however slightly, the anal 

18 or genital opening of the victim with any part of the body 

19 of the accused, or with any foreign object, shall be pun20 ished as a military commission under this chapter may 

21 direct. 

22 ‘‘§ 950ccc. Hijacking or hazarding a vessel or aircraft 

23 ‘‘Any person subject to this chapter who intentionally 

24 seizes, exercises unauthorized control over, or endangers 

25 the safe navigation of a vessel or aircraft that is not a 


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1 legitimate military objective shall be punished, if death re2 sults to one or more of the victims, by death or such other 

3 punishment as a military commission under this chapter 

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

5 victims, by such punishment, other than death, as a mili6 tary commission under this chapter may direct. 

7 ‘‘§ 950ddd. Terrorism 

8 ‘‘Any person subject to this chapter who intentionally 

9 kills or inflicts great bodily harm on one or more protected 

10 persons, or intentionally engages in an act that evinces 

11 a wanton disregard for human life, in a manner calculated 

12 to influence or affect the conduct of government or civilian 

13 population by intimidation or coercion, or to retaliate 

14 against government conduct, shall be punished, if death 

15 results to one or more of the victims, by death or such 

16 other punishment as a military commission under this 

17 chapter may direct, and, if death does not result to any 

18 of the victims, by such punishment, other than death, as 

19 a military commission under this chapter may direct. 

20 ‘‘§ 950eee. Providing material support for terrorism 

21 ‘‘(a) OFFENSE.—Any person subject to this chapter 

22 who provides material support or resources, knowing or 

23 intending that they are to be used in preparation for, or 

24 in carrying out, an act of terrorism (as set forth in section 

25 950ddd of this title), or who intentionally provides mateVerDate Aug 31 2005 02:24 Sep 15, 2006 Jkt 049200 PO 00000 Frm 00067 Fmt 6652 Sfmt 6201 E:\BILLS\S3901.PCS S3901

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1 rial support or resources to an international terrorist orga2 nization engaged in hostilities against the United States, 

3 knowing that such organization has engaged or engages 

4 in terrorism (as so set forth), shall be punished as a mili5 tary commission under this chapter may direct. 

6 ‘‘(b) MATERIAL SUPPORT OR RESOURCES DE7 FINED.—In this section, the term ‘material support or re8 sources’ has the meaning given that term in section 

9 2339A(b) of title 18. 

10 ‘‘§ 950fff. Wrongfully aiding the enemy 

11 ‘‘Any person subject to this chapter who, in breach 

12 of an allegiance or duty to the United States, knowingly 

13 and intentionally aids an enemy of the United States, or 

14 one of the co-belligerents of the enemy, shall be punished 

15 as a military commission under this chapter may direct. 

16 ‘‘§ 950ggg. Spying 

17 ‘‘Any person subject to this chapter who, in violation 

18 of the law of war and with intent or reason to believe that 

19 it is to be used to the injury of the United States or to 

20 the advantage of a foreign power, collects or attempts to 

21 collect information by clandestine means or while acting 

22 under false pretenses, for the purpose of conveying such 

23 information to an enemy of the United States, or one of 

24 the co-belligerents of the enemy, shall be punished by 


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1 death or such other punishment as a military commission 

2 under this chapter may direct. 

3 ‘‘§ 950hhh. Contempt 

4 ‘‘A military commission under this chapter may pun5 ish for contempt any person who uses any menacing word, 

6 sign, or gesture in its presence, or who disturbs its pro7 ceedings by any riot or disorder. 

8 ‘‘§ 950iii. Perjury and obstruction of justice 

9 ‘‘A military commission under this chapter may try 

10 offenses and impose such punishment as the military com11 mission may direct for perjury, false testimony, or ob12 struction of justice related to the military commission.’’. 

13 (2) TABLES OF CHAPTERS AMENDMENTS.—The 

14 tables of chapters at the beginning of subtitle A and 

15 part II of subtitle A of title 10, United States Code, 

16 are each amended by inserting after the item relat17 ing to chapter 47 the following new item: 

‘‘Chapter 47A. Military Commissions ....................................................... 948a’’. 

18 (b) SUBMITTAL OF PROCEDURES TO CONGRESS.— 

19 (1) SUBMITTAL OF PROCEDURES.—Not later 

20 than 90 days after the date of the enactment of this 

21 Act, the Secretary of Defense shall submit to the 

22 Committees on Armed Services of the Senate and 

23 the House of Representatives a report setting forth 

24 the procedures for military commissions prescribed 


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1 under chapter 47A of title 10, United States Code 

2 (as added by subsection (a)). 

3 (2) SUBMITTAL OF MODIFICATIONS.—Not later 

4 than 60 days before the date on which any proposed 

5 modification of the procedures described in para6 graph (1) shall go into effect, the Secretary shall 

7 submit to the committees of Congress referred to in 

8 that paragraph a report describing such modifica9 tion. 

10 SEC. 5. AMENDMENTS TO OTHER LAWS. 

11 (a) DETAINEE TREATMENT ACT OF 2005.—Section 

12 1004(b) of the Detainee Treatment Act of 2005 (title X 

13 of Public Law 109–148; 119 Stat. 2740; 42 U.S.C. 

14 200dd–1(b)) is amended— 

15 (1) by striking ‘‘may provide’’ and inserting 

16 ‘‘shall provide’’; 

17 (2) by inserting ‘‘or investigation’’ after ‘‘crimi18 nal prosecution’’; and 

19 (3) by inserting ‘‘whether before United States 

20 courts or agencies, foreign courts or agencies, or 

21 international courts or agencies,’’ after ‘‘described in 

22 that subsection,’’. 

23 (b) UNIFORM CODE OF MILITARY JUSTICE.—Chap24 ter 47 of title, 10, United States Code (the Uniform Code 

25 of Military Justice), is amended as follows: 


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1 (1) Section 802 (article 2 of the Uniform Code 

2 of Military Justice) is amended by adding at the end 

3 the following new paragraph: 

4 ‘‘(13) Lawful enemy combatants (as that term 

5 is defined in section 948a(3) of this title) who vio6 late the law of war.’’. 

7 (2) Section 821 (article 21 of the Uniform Code 

8 of Military Justice) is amended by striking ‘‘by stat9 ute or law of war’’. 

10 (3) Section 836(a) (article 36(a) of the Uniform 

11 Code of Military Justice) is amended by inserting 

12 ‘‘(other than military commissions under chapter 

13 47A of this title)’’ after ‘‘other military tribunals’’. 

14 (c) PUNITIVE ARTICLE OF CONSPIRACY.—Section 

15 881 of title 10, United States Code (article 81 of the Uni16 form Code of Military Justice)), is amended— 

17 (1) by inserting ‘‘(a)’’ before ‘‘Any person’’; and 

18 (2) by adding at the end the following new sub19 section: 

20 ‘‘(b) Any person subject to this chapter or chapter 

21 47A of this title who conspires with any other person to 

22 commit an offense under the law of war, and who know23 ingly does an overt act to effect the object of the con24 spiracy, shall be punished, if death results to one or more 

25 of the victims, by death or such other punishment as a 


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1 court-martial or military commission may direct, and, if 

2 death does not result to any of the victims, by such pun3 ishment, other than death, as a court-martial or military 

4 commission may direct.’’. 

5 (d) REVIEW OF JUDGMENTS OF MILITARY COMMIS6 SIONS.— 

7 (1) REVIEW BY SUPREME COURT.—Section 

8 1259 of title 28, United States Code, is amended by 

9 adding at the end the following new paragraph: 

10 ‘‘(5) Cases tried by military commission and re11 viewed by the United States Court of Appeals for 

12 the Armed Forces under section 950f of title 10.’’. 

13 (2) DETAINEE TREATMENT ACT OF 2005.—Sec14 tion 1005(e) of the Detainee Treatment Act of 2005 

15 (title X of Public Law 109–148; 119 Stat. 2740; 10 

16 U.S.C. 801 note) is amended— 

17 (A) in paragraphs (3) and (4), by striking 

18 ‘‘United States Court of Appeals for the Dis19 trict of Columbia Circuit’’ each place it appears 

20 and inserting ‘‘United States Court of Appeals 

21 for the Armed Forces’’; and 

22 (B) in paragraph (3)— 

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

24 ‘‘pursuant to Military Commission Order 

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1 cessor military order)’’ and inserting ‘‘by a 

2 military commission under chapter 47A of 

3 title 10, United States Code’’; 

4 (ii) by striking subparagraph (B) and 

5 inserting the following new subparagraph 

6 (B): 

7 ‘‘(ii) GRANT OF REVIEW.—Review 

8 under this paragraph shall be as of right.’’; 

9 (iii) in subparagraph (C)— 

10 (I) in clause (i)— 

11 (aa) by striking ‘‘pursuant 

12 to the military order’’ and insert13 ing ‘‘by a military commission’’; 

14 and 

15 (bb) by striking ‘‘at Guanta16 namo Bay, Cuba’’; and 

17 (II) in clause (ii), by striking 

18 ‘‘pursuant to such military order’’ and 

19 inserting ‘‘by the military commis20 sion’’; and 

21 (iv) in subparagraph (D)(i), by strik22 ing ‘‘specified in the military order’’ and 

23 inserting ‘‘specified for a military commis24 sion’’. 


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1 SEC. 6. HABEAS CORPUS MATTERS. 

2 (a) IN GENERAL.—Section 2241 of title 28, United 

3 States Code, is amended— 

4 (1) by striking subsection (e) (as added by sec5 tion 1005(e)(1) of Public Law 109–148 (119 Stat. 

6 2742)) and by striking subsection (e) (as added by 

7 added by section 1405(e)(1) of Public Law 109–163 

8 (119 Stat. 3477)); and 

9 (2) by adding at the end the following new sub10 section: 

11 ‘‘(e)(1) No court, justice, or judge shall have jurisdic12 tion to hear or consider an application for a writ of habeas 

13 corpus filed by or on behalf of an alien detained outside 

14 of the United States who— 

15 ‘‘(A) is currently in United States custody; or 

16 ‘‘(B) has been determined by the United States 

17 to have been properly detained as an enemy combat18 ant. 

19 ‘‘(2) Except as provided in paragraphs (2) and (3) 

20 of section 1005(e) of the Detainee Treatment Act of 2005 

21 (10 U.S.C. 801 note), no court, justice, or judge shall have 

22 jurisdiction to hear or consider any other action against 

23 the United States or its agents relating to any aspect of 

24 the detention, treatment, or trial of an alien detained out25 side of the United States who— 

26 ‘‘(A) is currently in United States custody; or 


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1 ‘‘(B) has been determined by the United States 

2 to have been properly detained as an enemy combat3 ant. 

4 ‘‘(3) In this subsection, the term ‘United States’, 

5 when used in a geographic sense, has the meaning given 

6 that term in section 1005(g) of the Detainee Treatment 

7 Act of 2005.’’. 

8 (b) EFFECTIVE DATE.—The amendments made by 

9 subsection (a) shall take effect on the date of the enact10 ment of this Act, and shall apply to all cases, without ex11 ception, pending on or after the date of the enactment of 

12 this Act which relate to any aspect of the detention, treat13 ment, or trial of an alien detained outside the United 

14 States (as that term is defined in section 2241(e)(3) of 

15 title 28, United States Code (as added by subsection (a)) 

16 since September 11, 2001. 

17 SEC. 7. TREATY OBLIGATIONS NOT ESTABLISHING 

18 GROUNDS FOR CERTAIN CLAIMS. 

19 (a) IN GENERAL.—No person may invoke the Geneva 

20 Conventions or any protocols thereto as an individually en21 forceable right in any civil action against an officer, em22 ployee, member of the Armed Forces or another agent of 

23 the United States Government, or against the United 

24 States, for the purpose of any claim for damages for 

25 death, injury, or damage to property in any court of the 


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1 United States or its States or territories. This subsection 

2 does not affect the obligations of the United States under 

3 the Geneva Conventions. 

4 (b) GENEVA CONVENTIONS DEFINED.—In this sec5 tion, the term ‘‘Geneva conventions’’ means— 

6 (1) the Convention for the Amelioration of the 

7 Condition of the Wounded and Sick in Armed 

8 Forces in the Field, done at Geneva August 12, 

9 1949 (6 UST 3114); 

10 (2) the Convention for the Amelioration of the 

11 Condition of the Wounded, Sick, and Shipwrecked 

12 Members of the Armed Forces at Sea, done at Gene13 va August 12, 1949 (6 UST 3217); 

14 (3) the Convention Relative to the Treatment of 

15 Prisoners of War, done at Geneva August 12, 1949 

16 (6 UST 3316); and 

17 (4) the Convention Relative to the Protection of 

18 Civilian Persons in Time of War, done at Geneva 

19 August 12, 1949 (6 UST 3516). 

20 SEC. 8. REVISION TO WAR CRIMES OFFENSE UNDER FED21 ERAL CRIMINAL CODE. 

22 (a) IN GENERAL.—Section 2441 of title 18, United 

23 States Code, is amended— 

24 (1) in subsection (c), by striking paragraph (3) 

25 and inserting the following new paragraph (3): 


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1 ‘‘(3) which constitutes a grave breach of com2 mon Article 3 (as defined in subsection (d)) when 

3 committed in the context of and in association with 

4 an armed conflict not of an international character; 

5 or’’; and 

6 (2) by adding at the end the following new sub7 section: 

8 ‘‘(d) COMMON ARTICLE 3 VIOLATIONS.— 

9 ‘‘(1) GRAVE BREACH OF COMMON ARTICLE 3.— 

10 In subsection (c)(3), the term ‘grave breach of com11 mon Article 3’ means any conduct (such conduct 

12 constituting a grave breach of common Article 3 of 

13 the international conventions done at Geneva August 

14 12, 1949), as follows: 

15 ‘‘(A) TORTURE.—The act of a person who 

16 commits, or conspires or attempts to commit, 

17 an act specifically intended to inflict severe 

18 physical or mental pain or suffering (other than 

19 pain or suffering incidental to lawful sanctions) 

20 upon another person within his custody or 

21 physical control for the purpose of obtaining in22 formation or a confession, punishment, intimi23 dation, coercion, or any reason based on dis24 crimination of any kind. 


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1 ‘‘(B) CRUEL, UNUSUAL, OR INHUMANE

2 TREATMENT OR PUNISHMENT.—The act of a 

3 person who subjects another person in the cus4 tody or under the physical control of the United 

5 States Government, regardless of nationality or 

6 physical location, to cruel, unusual, or inhu7 mane treatment or punishment prohibited by 

8 the Fifth, Eighth, and 14th Amendments to the 

9 Constitution of the United States. 

10 ‘‘(C) PERFORMING BIOLOGICAL EXPERI11 MENTS.—The act of a person who subjects, or 

12 conspires or attempts to subject, one or more 

13 persons within his custody or physical control to 

14 biological experiments without a legitimate med15 ical or dental purpose and in so doing endan16 gers the body or health of such person or per17 sons. 

18 ‘‘(D) MURDER.—The act of a person who 

19 intentionally kills, or conspires or attempts to 

20 kill, or kills whether intentionally or uninten21 tionally in the course of committing any other 

22 offense under this section, one or more persons 

23 taking no active part in hostilities, including 

24 those placed out of active combat by sickness, 

25 wounds, detention, or any other cause. 


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1 ‘‘(E) MUTILATION OR MAIMING.—The act 

2 of a person who intentionally injures, or con3 spires or attempts to injure, or injures whether 

4 intentionally or unintentionally in the course of 

5 committing any other offense under this sec6 tion, one or more persons taking no active part 

7 in hostilities, including those placed out of ac8 tive combat by sickness, wounds, detention, or 

9 any other cause, by disfiguring such person or 

10 persons by any mutilation thereof or by perma11 nently disabling any member, limb, or organ of 

12 the body of such person or persons, without any 

13 legitimate medical or dental purpose. 

14 ‘‘(F) INTENTIONALLY CAUSING SERIOUS

15 BODILY INJURY.—The act of a person who in16 tentionally causes, or conspires or attempts to 

17 cause, serious bodily injury to one or more per18 sons, including lawful combatants, in violation 

19 of the law of war. 

20 ‘‘(G) RAPE.—The act of a person who 

21 forcibly or with coercion or threat of force 

22 wrongfully invades, or conspires or attempts to 

23 invade, the body of a person by penetrating, 

24 however slightly, the anal or genital opening of 


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1 the victim with any part of the body of the ac2 cused, or with any foreign object. 

3 ‘‘(H) SEXUAL ASSAULT OR ABUSE.—The 

4 act of person who forcibly or with coercion or 

5 threat of force engages, or conspires or at6 tempts to engage, in sexual contact with one or 

7 more persons, or causes, or conspires or at8 tempts to cause, one or more persons to engage 

9 in sexual contact. 

10 ‘‘(I) TAKING HOSTAGES.—The act of a 

11 person who, having knowingly seized or de12 tained one or more persons, threatens to kill, 

13 injure, or continue to detain such person or per14 sons with the intent of compelling any nation, 

15 person other than the hostage, or group of per16 sons to act or refrain from acting as an explicit 

17 or implicit condition for the safety or release of 

18 such person or persons. 

19 ‘‘(2) DEFINITIONS.—In the case of an offense 

20 under subsection (a) by reason of subsection 

21 (c)(3)— 

22 ‘‘(A) the term ‘severe mental pain or suf23 fering’ shall be applied for purposes of para24 graph (1)(A) in accordance with the meaning 

25 given that term in section 2340(2) of this title; 


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1 ‘‘(B) the term ‘serious bodily injury’ shall 

2 be applied for purposes of paragraph (1)(F) in 

3 accordance with the meaning given that term in 

4 section 113(b)(2) of this title; and 

5 ‘‘(C) the term ‘sexual contact’ shall be ap6 plied for purposes of paragraph (1)(G) in ac7 cordance with the meaning given that term in 

8 section 2246(3) of this title. 

9 ‘‘(3) INAPPLICABILITY OF CERTAIN PROVISIONS

10 WITH RESPECT TO COLLATERAL DAMAGE OR INCI11 DENT OF LAWFUL ATTACK.—The intent specified for 

12 the conduct stated in subparagraphs (D), (E), and 

13 (F) of paragraph (1) precludes the applicability of 

14 those subparagraphs to an offense under subsection 

15 (a) by reasons of subsection (c)(3) with respect to— 

16 ‘‘(A) collateral damage; or 

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

18 a lawful attack. 

19 ‘‘(4) INAPPLICABILITY OF TAKING HOSTAGES

20 TO PRISONER EXCHANGE.—Paragraph (1)(I) does 

21 not apply to an offense under subsection (a) by rea22 son of subsection (c)(3) in the case of a prisoner ex23 change during wartime.’’. 

24 (b) CONSTRUCTION.—Such section is further amend25 ed by adding at the end the following new subsections: 


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1 ‘‘(e) INAPPLICABILITY OF FOREIGN SOURCES OF

2 LAW IN INTERPRETATION.—No foreign source of law shall 

3 be considered in defining or interpreting the obligations 

4 of the United States under this title. 

5 ‘‘(f) NATURE OF CRIMINAL SANCTIONS.—The crimi6 nal sanctions in this section provide penal sanctions under 

7 the domestic law of the United States for grave breaches 

8 of the international conventions done at Geneva August 

9 12, 1949. Such criminal sanctions do not alter the obliga10 tions of the United States under those international con11 ventions.’’. 

12 (c) PROTECTION OF CERTAIN UNITED STATES GOV13 ERNMENT PERSONNEL.—Such section is further amended 

14 by adding at the end the following new subsection: 

15 ‘‘(g) PROTECTION OF CERTAIN UNITED STATES

16 GOVERNMENT PERSONNEL.—The provisions of section 

17 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 

18 2000dd–1) shall apply with respect to any criminal pros19 ecution relating to the detention and interrogation of indi20 viduals described in such provisions that is grounded in 

21 an offense under subsection (a) by reason of subsection 

22 (c)(3) with respect to actions occurring between Sep23 tember 11, 2001, and December 30, 2005.’’. 


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1 SEC. 9. DETENTION COVERED BY REVIEW OF DECISIONS 

2 OF COMBATANT STATUS REVIEW TRIBUNALS 

3 OF PROPRIETY OF DETENTION. 

4 Section 1005(e)(2)(B)(i) of the Detainee Treatment 

5 Act of 2005 (title X of Public Law 109–148; 119 Stat. 

6 2742; 10 U.S.C. 801 note) is amended by striking ‘‘the 

7 Department of Defense at Guantanamo Bay, Cuba’’ and 

8 inserting ‘‘the United States’’. 

9 SEC. 10. SEVERABILITY. 

10 If any provision of this Act or amendment made by 

11 a provision of this Act, or the application of such provision 

12 or amendment to any person or circumstance, is held to 

13 be unconstitutional, the remainder of this Act and the 

14 amendments made by this Act, and the application of such 

15 provisions and amendments to any other person or cir16 cumstance, shall not be affected thereby. 


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Calendar No. 611 

109TH CONGRESS 

2D SESSION S. 3901 

A BILL 

To authorize trial by military commission for 

violations of the law of war, and for other purposes. 

SEPTEMBER 14, 2006 

Read twice and placed on the calendar 


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