II 

★(Star Print)

Calendar No. 595 

109TH CONGRESS 

2D SESSION S. 3861 

To facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 6, 2006 

Mr. FRIST (for himself, Mr. MCCONNELL, and Mr. INHOFE) introduced the 

following bill; which was read the first time 

SEPTEMBER 8, 2006 

Read the second time and placed on the calendar 

A BILL 

To facilitate bringing to justice terrorists and other unlawful 

enemy combatants through full and fair trials by military 

commissions, 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 ‘‘Bringing Terrorists 

5 to Justice Act of 2006’’. 


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1 SEC. 2. FINDINGS. 

2 Congress makes the following findings: 

3 (1) For more than 10 years, the al Qaeda ter4 rorist organization has waged an unlawful war of vi5 olence and terror against the United States and its 

6 allies. Al Qaeda was involved in the bombing of the 

7 World Trade Center in New York City in 1993, the 

8 bombing of the United States Embassies in Kenya 

9 and Tanzania in 1998, and the attack on the U.S.S. 

10 Cole in Yemen in 2000. On September 11, 2001, al 

11 Qaeda launched the most deadly foreign attack on 

12 United States soil in history. Nineteen al Qaeda 

13 operatives hijacked four commercial aircraft and pi14 loted them into the World Trade Center Towers in 

15 New York City and the headquarters of the United 

16 States Department of Defense at the Pentagon, and 

17 downed United Airlines Flight 93. The attack de18 stroyed the Towers, severely damaged the Pentagon, 

19 and resulted in the deaths of approximately 3,000 

20 innocent people. 

21 (2) Following the attacks on the United States 

22 on September 11th, Congress recognized the existing 

23 hostilities with al Qaeda and affiliated terrorist orga24 nizations and, by the Authorization for the Use of 

25 Military Force Joint Resolution (Public Law 107– 

26 40), recognized that ‘‘the President has authority 


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1 under the Constitution to take action to deter and 

2 prevent acts of international terrorism against the 

3 United States’’ and authorized the President ‘‘to use 

4 all necessary and appropriate force against those na5 tions, organizations, or persons he determines 

6 planned, authorized, committed, or aided the ter7 rorist attacks that occurred on September 11, 2001 

8 . . . in order to prevent any future acts of inter9 national terrorism against the United States by such 

10 nations, organizations or persons.’’. 

11 (3) The President’s authority to convene mili12 tary commissions arises from the Constitution’s vest13 ing in the President of the executive power and the 

14 power of Commander in Chief of the Armed Forces. 

15 As the Supreme Court of the United States recog16 nized in Madsen v. Kinsella, 343 U.S. 341, 346–48 

17 (1952), ‘‘[s]ince our nation’s earliest days, such 

18 commissions have been constitutionally recognized 

19 agencies for meeting many urgent governmental re20 sponsibilities related to war. . . . They have taken 

21 many forms and borne many names. Neither their 

22 procedure nor their jurisdiction has been prescribed 

23 by statute. It has been adapted in each instance to 

24 the need that called it forth.’’. 


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1 (4) In exercising the authority vested in the 

2 President by the Constitution and laws of the 

3 United States, including the Authorization for Use 

4 of Military Force Joint Resolution, and in accord5 ance with the law of war, the President has detained 

6 enemy combatants in the course of this armed con7 flict and issued the Military Order of November 13, 

8 2001, to govern the ‘‘Detention, Treatment, and 

9 Trial of Certain Non-Citizens in the War Against 

10 Terrorism’’. This Order authorized the Secretary of 

11 Defense to establish military commissions to try in12 dividuals subject to the Order for any offenses tri13 able by military commission that such individuals 

14 are alleged to have committed. 

15 (5) The Supreme Court in Hamdan v. Rums16 feld, 126 S. Ct. 2749 (2006), held that the military 

17 commissions established by the Department of De18 fense under the President’s Military Order of No19 vember 13, 2001, were not consistent with certain 

20 aspects of United States domestic law. The Congress 

21 may by law, and does by enactment of this statute, 

22 eliminate any deficiency of statutory authority to fa23 cilitate bringing terrorists with whom the United 

24 States is engaged in armed conflict to justice for vio25 lations of the law of war and other offenses triable 


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1 by military commissions. The prosecution of such in2 dividuals by military commissions established and 

3 conducted consistent with this Act fully complies 

4 with the Constitution, the laws of the United States, 

5 treaties to which the United States is a party, and 

6 the law of war. 

7 (6) The use of military commissions is particu8 larly important in this context because other alter9 natives, such as the use of courts-martial, generally 

10 are impracticable. The terrorists with whom the 

11 United States is engaged in armed conflict have 

12 demonstrated a commitment to the destruction of 

13 the United States and its people, to the violation of 

14 the law of war, and to the abuse of American legal 

15 processes. In a time of ongoing armed conflict, it 

16 generally is neither practicable nor appropriate for 

17 combatants like al Qaeda terrorists to be tried be18 fore tribunals that include all of the procedures asso19 ciated with courts-martial. 

20 (7) Many procedures for courts-martial would 

21 not be practicable in trying the unlawful enemy com22 batants for whom this Act provides for trial by mili23 tary commission. For instance, court martial pro24 ceedings would in certain circumstances— 


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1 (A) compel the Government to share classi2 fied information with the accused, even though 

3 members of al Qaeda cannot be trusted with 

4 our Nation’s secrets and it would not be con5 sistent with the national security of the United 

6 States to provide them with access to classified 

7 information; 

8 (B) exclude the use of hearsay evidence 

9 even though such evidence often will be the best 

10 and most reliable evidence that the accused has 

11 committed a war crime. For example, many wit12 nesses in military commission trials are likely to 

13 be foreign nationals who are not amenable to 

14 process or may be precluded for national secu15 rity reasons from entering the United States or 

16 Guantanamo Bay to testify. Other witnesses 

17 may be unavailable because of military neces18 sity, incarceration, injury, or death. In short, 

19 applying the hearsay rules from the Manual for 

20 Courts-Martial or from the Federal Rules of 

21 Evidence would make it virtually impossible to 

22 bring terrorists to justice for their violations of 

23 the law of war; 

24 (C) specify speedy trials and technical 

25 rules for sworn and authenticated statements 


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1 when, due to the exigencies of wartime, the 

2 United States cannot safely require members of 

3 the armed forces to gather evidence on the bat4 tlefield, including civilian eyewitness testimony, 

5 as though they were police officers. Nor can the 

6 United States divert members from the front 

7 lines and their duty stations to attend military 

8 commission proceedings. Therefore, strict com9 pliance with such rules for evidence gathered on 

10 the battlefield would be impracticable, given the 

11 preeminent focus on military operations and the 

12 chaotic nature of combat. 

13 (8) The exclusive judicial review for which this 

14 Act, and the Detainee Treatment Act of 2005, pro15 vides is without precedent in the history of armed 

16 conflicts involving the United States, exceeds the 

17 scope of judicial review historically provided for by 

18 military commissions, and is channeled in a manner 

19 appropriately tailored to— 

20 (A) the circumstances of the conflicts be21 tween the United States and international ter22 rorist organizations; and 

23 (B) the need to ensure fair treatment of 

24 those detained as enemy combatants, to mini25 mize the diversion of members of the armed 


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1 forces from other wartime duties, and to protect 

2 the national security of the United States. 

3 (9) In early 2002, as memorialized in a memo4 randum dated February 7, 2002, the President de5 termined that common Article 3 of the Geneva Con6 ventions did not apply with respect to the United 

7 States conflict with al Qaeda because al Qaeda was 

8 not a party to those treaties and the conflict with al 

9 Qaeda was an armed conflict of an international 

10 character. That was the interpretation of the United 

11 States prior to the Supreme Court’s decision in 

12 Hamdan on June 29, 2006. Hamdan’s statement to 

13 the contrary makes it appropriate to clarify the 

14 standards imposed by common Article 3. This Act 

15 makes clear that the prohibitions against cruel, in16 human, and degrading treatment found in the De17 tainee Treatment Act of 2005 fully satisfy the obli18 gations of the United States with respect to the 

19 standards for detention and treatment established by 

20 section 1 of common Article 3, except for those obli21 gations arising under paragraphs (b) and (d). In ad22 dition, the Act makes clear that the Geneva Conven23 tions are not a source of judicially enforceable indi24 vidual rights, thereby reaffirming that enforcement 


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1 of the obligations imposed by the Conventions is a 

2 matter between the nations that are parties to them. 

3 SEC. 3. AUTHORIZATION FOR MILITARY COMMISSIONS. 

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

6 war and other offenses triable by military commissions as 

7 provided in section 4 of this Act (chapter 47A of title 10). 

8 (b) CONSTRUCTION.—The authority granted in sub9 section (a) shall not be construed to limit the authority 

10 of the President under the Constitution of the United 

11 States or the laws thereof to establish military commis12 sions on the battlefield, in occupied territories, or in other 

13 armed conflicts should circumstances so require. 

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

15 commission established pursuant to subsection (a) shall 

16 have authority to impose upon any person found guilty 

17 after a proceeding under this Act a sentence that is appro18 priate to the offense or offenses for which there was a 

19 finding of guilt, which sentence may include death where 

20 authorized by this Act, imprisonment for life or a term 

21 of years, payment of a fine or restitution, or such other 

22 lawful punishment or condition of punishment as the com23 mission shall determine to be proper. 

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

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1 ishment decreed by a military commission pursuant to 

2 subsection (a) in accordance with such procedures as the 

3 Secretary may prescribe. 

4 (e) ANNUAL REPORT ON TRIALS BY MILITARY COM5 MISSION.— 

6 (1) ANNUAL REPORT REQUIRED.—Not later 

7 than December 31 each year, the Secretary of De8 fense shall submit to the Armed Services Commit9 tees of the House of Representatives and the Senate 

10 an annual report on the conduct of trials by military 

11 commissions established pursuant to subsection (a) 

12 during such year. 

13 (2) FORM.—Each such report shall be sub14 mitted in unclassified form, with classified annex, if 

15 necessary and consistent with national security. 

16 SEC. 4. MILITARY COMMISSIONS. 

17 (a) MILITARY COMMISSIONS.— 

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

19 United States Code, is amended by inserting after 

20 chapter 47 the following new chapter: 

21 ‘‘CHAPTER 47A—MILITARY COMMISSIONS 

22 ‘‘SUBCHAPTER I—GENERAL PROVISIONS 

‘‘Sec. 

‘‘948a. Definitions. 

‘‘948b. Military commissions generally. 

‘‘948c. Persons subject to military commissions. 

‘‘948d. Jurisdiction of military commissions. 


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1 ‘‘§ 948a. Definitions 

2 ‘‘In this chapter: 

3 ‘‘(1) ALIEN.—The term ‘alien’ means an indi4 vidual who is not a citizen of the United States. 

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

6 ‘classified information’ means the following— 

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

8 been determined by the United States Govern9 ment pursuant to statute, Executive order, or 

10 regulation to require protection against unau11 thorized disclosure for reasons of national secu12 rity. 

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

14 defined in section 11 y. of the Atomic Energy 

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

16 ‘‘(3) COMMISSION.—The term ‘commission’ 

17 means a military commission established pursuant to 

18 chapter 47A of title 10, United States Code. 

19 ‘‘(4) CONVENING AUTHORITY.—The term ‘con20 vening authority’ shall be the Secretary of Defense 

21 or his designee. 

22 ‘‘(5) LAWFUL ENEMY COMBATANT.—The term 

23 ‘lawful enemy combatant’ means an individual deter24 mined by or under the authority of the President or 

25 Secretary of Defense (whether on an individualized 

26 or collective basis) to be: (i) a member of the regular 


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1 forces of a State party engaged in hostilities against 

2 the United States or its co-belligerents; (ii) a mem3 ber of a militia, volunteer corps, or organized resist4 ance movement belonging to a State party engaged 

5 in such hostilities, which are under responsible com6 mand, wear a fixed distinctive sign recognizable at 

7 a distance, carry their arms openly, and abide by the 

8 law of war; or (iii) a member of a regular armed 

9 forces who professes allegiance to a government en10 gaged in such hostilities, but not recognized by the 

11 United States. 

12 ‘‘(6) SECRETARY.—The term ‘Secretary’ means 

13 the Secretary of Defense. 

14 ‘‘(7) UNLAWFUL ENEMY COMBATANT.—The 

15 term ‘unlawful enemy combatant’ means an indi16 vidual determined by or under the authority of the 

17 President or the Secretary of Defense— 

18 ‘‘(A) to be part of or affiliated with a force 

19 or organization—including but not limited to al 

20 Qaeda, the Taliban, any international terrorist 

21 organization, or associated forces—engaged in 

22 hostilities against the United States or its co23 belligerents; in violation of the law of war; 

24 ‘‘(B) to have committed a hostile act in aid 

25 of such a force or organization so engaged; or 


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1 ‘‘(C) to have supported hostilities in aid of 

2 such a force or organization so engaged. 

3 ‘‘This definition includes any individual deter4 mined by a Combatant Status Review Tribunal, be5 fore the effective date of this Act, to have been prop6 erly detained as an enemy combatant, but excludes 

7 any alien determined by the President or the Sec8 retary of Defense (whether on an individualized or 

9 collective basis), or by any competent tribunal estab10 lished under their authority, to be (i) a lawful enemy 

11 combatant (including a prisoner of war), or (ii) a 

12 protected person whose trial by these military com13 missions would be inconsistent with Articles 64–76 

14 of the Geneva Convention Relative to the Protection 

15 of Civilian Persons in Time of War of August 12, 

16 1949. For purposes of this section, the term ‘‘pro17 tected person’’ refers to the category of persons de18 scribed in Article 4 of the Geneva Convention Rel19 ative to the Protection of Civilian Persons in Time 

20 of War of August 12, 1949. 

21 ‘‘(8) GENEVA CONVENTIONS.—The term ‘Gene22 va Conventions’ means the international conventions 

23 signed at Geneva on August 12, 1949, including 

24 common Article 3. 


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1 ‘‘§ 948b. Military commissions generally 

2 ‘‘(a) PURPOSE.—This chapter codifies and estab3 lishes procedures governing the use of military commis4 sions to try unlawful enemy combatants for violations of 

5 the law of war and other offenses triable by military com6 missions. Although military commissions traditionally 

7 have been constituted by order of the President, the deci8 sion of the Supreme Court in Hamdan v. Rumsfeld makes 

9 it both necessary and appropriate to codify procedures for 

10 military commissions as set forth herein. 

11 ‘‘(b) RULE OF CONSTRUCTION.—The procedures for 

12 military commissions set forth in this chapter are modeled 

13 after the procedures established for courts-martial in the 

14 Uniform Code of Military Justice. However, it would be 

15 neither desirable nor practicable to try unlawful enemy 

16 combatants by court-martial procedures. The trial of such 

17 persons by military commission presents new challenges 

18 that require that interpretations of this Act not be unduly 

19 influenced by the rules and procedures developed for 

20 courts-martial. Therefore, no construction or application 

21 of chapter 47 of this title shall be binding in the construc22 tion or application of this chapter. 

23 ‘‘(c) Alien unlawful enemy combatants may be tried 

24 for violations of the law of war and other offenses triable 

25 by military commissions committed against the United 


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1 States or its co-belligerents before, on, or after September 

2 11, 2001. 

3 ‘‘(d) A military commission established under this 

4 chapter is a regularly constituted court, affording all the 

5 necessary ‘judicial guarantees which are recognized as in6 dispensable by civilized peoples’ for purposes of common 

7 Article 3 of the Geneva Conventions. 

8 ‘‘§ 948c. Persons subject to military commissions 

9 ‘‘Alien unlawful enemy combatants, as defined in sec10 tion 948a of this title, shall be subject to trial by military 

11 commissions as set forth in this chapter. 

12 ‘‘§ 948d. Jurisdiction of military commissions 

13 ‘‘(a) Military commissions shall have jurisdiction to 

14 try any offense made punishable under this chapter, when 

15 committed by an alien unlawful enemy combatant. Mili16 tary commissions shall not have jurisdiction over lawful 

17 enemy combatants. Lawful enemy combatants who violate 

18 the law of war are subject to chapter 47 of Title 10, 

19 United States Code. Courts-martial established under 

20 chapter 47 shall have jurisdiction to try a lawful enemy 

21 combatant for any offense made punishable under this 

22 chapter. 

23 ‘‘(b) Military commissions shall not have jurisdiction 

24 over any individual determined by the President or the 

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1 lective basis), or by any competent tribunal established 

2 under their authority, to be a ‘protected person’ whose 

3 trial by these military commissions would be inconsistent 

4 with Articles 64–76 of the Geneva Convention Relative to 

5 the Protection of Civilian Persons in Time of War of Au6 gust 12, 1949. Such persons shall be tried in courts-mar7 tial or other tribunals consistent with their status under 

8 the Geneva Conventions. For purposes of this section, the 

9 term ‘protected person’ refers to the category of persons 

10 described in Article 4 of the Geneva Convention Relative 

11 to the Protected of Civilian Persons in Time of War of 

12 August 12, 1949. 

13 ‘‘(c) Military commissions may, under such limita14 tions as the Secretary of Defense may prescribe, adjudge 

15 any punishment not forbidden by this chapter, including 

16 the penalty of death where authorized by this chapter. 

17 ‘‘SUBCHAPTER II—COMPOSITION OF MILITARY 

18 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. 

19 ‘‘§ 948h. Who may convene military commissions 

20 ‘‘(a) The Secretary may issue orders convening mili21 tary commissions to try individuals under this chapter. 


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1 ‘‘(b) The Secretary may delegate his authority to con2 vene military commissions or to promulgate any regula3 tions under this chapter. 

4 ‘‘§ 948i. Who may serve on military commissions 

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

6 United States armed forces on active duty is eligible to 

7 serve on a military commission. Eligible commissioned of8 ficers shall include, without limitation, reserve personnel 

9 on active duty, National Guard personnel on active duty 

10 in Federal service, and retired personnel recalled to active 

11 duty. 

12 ‘‘(b) DETAIL OF MEMBERS.—When convening a com13 mission, the convening authority shall detail as members 

14 thereof such members of the armed forces as, in his opin15 ion, are fully qualified for the duty by reason of age, edu16 cation, training, experience, length of service, and judicial 

17 temperament. No member of an armed force shall be eligi18 ble to serve as a member of a commission when he is the 

19 accuser or a witness for the prosecution or has acted as 

20 an investigator or counsel in the same case. 

21 ‘‘(c) EXCUSE OF MEMBERS.—Before a commission is 

22 assembled for the trial of a case, the convening authority 

23 may excuse a member of the commission from partici24 pating in the case. 


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1 ‘‘§ 948j. Military judge of a military commission 

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

3 judge shall be detailed to each commission. The Secretary 

4 shall prescribe regulations providing for the manner in 

5 which military judges are detailed to such commissions. 

6 The military judge shall preside over each commission to 

7 which he has been detailed. The convening authority shall 

8 not prepare or review any report concerning the effective9 ness, fitness, or efficiency of the military judge so detailed 

10 relating to his performance duty as a military judge. 

11 ‘‘(b) ELIGIBILITY.—A military judge shall be a com12 missioned officer of the armed forces who is a member 

13 of the bar of a Federal court or a member of the bar of 

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

15 qualified for duty as a military judge by the Judge Advo16 cate General of the armed force of which such military 

17 judge is a member. A commissioned officer who is certified 

18 to be qualified for duty as a military judge of a commis19 sion may perform such other duties as are assigned to him 

20 by or with the approval of that Judge Advocate General 

21 or his designee. 

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

23 person is eligible to act as military judge in any case in 

24 which he is the accuser or a witness or has acted as inves25 tigator or a counsel in the same case. 


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1 ‘‘(d) CONSULTATION WITH MEMBERS; INELIGI2 BILITY TO VOTE.—Except as provided in section 949d of 

3 this title, the military judge detailed to the commission 

4 may not consult with the members of the commission ex5 cept in the presence of the accused, trial counsel, and de6 fense counsel, nor may he vote with the members of the 

7 commission. 

8 ‘‘§ 948k. Detail of trial counsel and defense counsel 

9 ‘‘(a) DETAIL OF COUNSEL GENERALLY.— 

10 ‘‘(1) Trial counsel and military defense counsel 

11 shall be detailed for each commission. 

12 ‘‘(2) Assistant trial counsel and assistant and 

13 associate military defense counsel may be detailed 

14 for each commission. 

15 ‘‘(3) Military defense counsel shall be detailed 

16 as soon as practicable after the swearing of charges 

17 against the person accused. 

18 ‘‘(4) The Secretary shall prescribe regulations 

19 providing for the manner in which counsel are de20 tailed for military commissions and for the persons 

21 who are authorized to detail counsel for such mili22 tary commissions. 

23 ‘‘(b) TRIAL COUNSEL.—Subject to subsection (d), 

24 trial counsel detailed for a military commission under this 

25 chapter must be— 


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

2 in section 801 of this title) who is— 

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

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

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

6 ‘‘(B) certified as competent to perform du7 ties as trial counsel before general courts-mar8 tial by the Judge Advocate General of the 

9 armed force of which he is a member; or 

10 ‘‘(2) a civilian who is— 

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

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

13 ‘‘(B) otherwise qualified to practice before 

14 the commission pursuant to regulations pre15 scribed by the Secretary. 

16 ‘‘(c) MILITARY DEFENSE COUNSEL.—Subject to sub17 section (d), military defense counsel detailed for a military 

18 commission under this chapter must be a judge advocate 

19 (as so defined) who is— 

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

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

22 highest court of a State; and 

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

24 defense counsel before general courts-martial by the 


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1 Judge Advocate General of the armed force of which 

2 he is a member. 

3 ‘‘(d) INELIGIBILITY OF CERTAIN INDIVIDUALS.—No 

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

5 or member of a military commission under this chapter 

6 may act later as trial counselor or defense counsel in the 

7 same case. No person who has acted for the prosecution 

8 may act later in the same case for the defense, nor may 

9 any person who has acted for the defense act later in the 

10 same case for the prosecution. 

11 ‘‘§ 948l. Detail or employment of reporters and inter12 preters 

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

14 as the Secretary may prescribe, the convening authority 

15 of a military commission shall detail or employ qualified 

16 court reporters, who shall record the proceedings of and 

17 testimony taken before that commission. 

18 ‘‘(b) INTERPRETERS.—Under like regulations the 

19 convening authority may detail or employ interpreters who 

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

21 trial counsel and defense counsel. 

22 ‘‘(c) TRANSCRIPT; RECORD.—The transcript shall be 

23 under the control of the convening authority, which is re24 sponsible for preparing the record of the proceedings. 


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1 ‘‘§ 948m. Number of members; excuse of members; ab2 sent and additional members 

3 ‘‘(a) NUMBER OF MEMBERS.—(1) A military com4 mission under this chapter shall, except as provided in 

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

6 ‘‘(2) In a case in which the death penalty is sought, 

7 the military commission shall have the number of members 

8 prescribed by section 949m(c) of this title. 

9 ‘‘(b) EXCUSE OF MEMBERS.—No member of a mili10 tary commission may be absent or excused after the com11 mission has been assembled for the trial of the accused 

12 unless excused— 

13 ‘‘(1) as a result of challenge; 

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

15 or other good cause; or 

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

17 good cause. 

18 ‘‘(c) ABSENT AND ADDITIONAL MEMBERS.—When19 ever a military commission is reduced below the requisite 

20 number of members, the trial may not proceed unless the 

21 convening authority details new members sufficient to pro22 vide not less than the requisite number. The trial may pro23 ceed with the new members present after the recorded evi24 dence previously introduced before the members of the 

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1 ence of the military judge, the accused (except as provided 

2 by section 949d of this title), and counsel for both sides. 

3 ‘‘SUBCHAPTER III—PRE-TRIAL PROCEDURE 

‘‘Sec. 

‘‘948q. Charges and specifications. 

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

‘‘948s. Service of charges. 

4 ‘‘§ 948q. Charges and specifications 

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

6 specifications against an accused shall be signed by a per7 son subject to chapter 47 of this title under oath before 

8 a commissioned officer of the armed forces authorized to 

9 administer oaths and shall state— 

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

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

12 and 

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

14 knowledge and belief. 

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

16 the charges and specifications in accordance with sub17 section (a), the accused shall be informed of the charges 

18 and specifications against him as soon as practicable. 

19 ‘‘§ 948r. Compulsory self-incrimination prohibited; 

20 statements obtained by torture 

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

22 testify against himself at a commission proceeding. 


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1 ‘‘(b) STATEMENTS OBTAINED BY TORTURE.—A 

2 statement obtained by use of torture, as defined in 18 

3 U.S.C. 2340, whether or not under color of law, shall not 

4 be admissible against the accused, except against a person 

5 accused of torture as evidence the statement was made. 

6 ‘‘(c) STATEMENTS NOT OBTAINED BY TORTURE.— 

7 No otherwise admissible statement may be received in evi8 dence, including statements allegedly obtained by coercion, 

9 if the military judge finds that the circumstances under 

10 which the statement was made render it unreliable or lack11 ing in probative value. 

12 ‘‘§ 948s. Service of charges 

13 ‘‘The trial counsel assigned to the case shall cause 

14 to be served upon the accused and counsel a copy of the 

15 charges upon which trial is to be had in English and, if 

16 appropriate, in another language that the accused under17 stands, sufficiently in advance of trial to prepare a de18 fense. 

19 ‘‘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. 


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‘‘949m. Number of votes required. 

‘‘949n. Military commission to announce action. 

‘‘949o. Record of trial. 

1 ‘‘§ 949a. Rules 

2 ‘‘(a) PROCEDURES.—Pretrial, trial, and post-trial 

3 procedures, including elements and modes of proof, for 

4 cases triable by military commission under this chapter 

5 shall be prescribed by the Secretary, but may not be con6 trary to or inconsistent with this chapter. 

7 ‘‘(b) RULES OF EVIDENCE.—Subject to such excep8 tions and limitations as the Secretary may provide by reg9 ulation, evidence in a military commission shall be admis10 sible if the military judge determines that the evidence 

11 would have probative value to a reasonable person. 

12 ‘‘(c) HEARSAY EVIDENCE.—Hearsay evidence is ad13 missible, unless the military judge finds that the cir14 cumstances render it unreliable or lacking in probative 

15 value, provided that the proponent of the evidence makes 

16 the evidence known to the adverse party in advance of trial 

17 or hearing. 

18 ‘‘The military judge shall exclude any evidence the 

19 probative value of which is substantially outweighed by the 

20 danger of unfair prejudice, confusion of the issues, or mis21 leading the members of the commission, or by consider22 ations of undue delay, waste of time, or needless presen23 tation of cumulative evidence. 


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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 commission or any member, mili6 tary judge, or counsel thereof, with respect to the findings 

7 or sentence adjudged by the commission, or with respect 

8 to any other exercises of its or his functions in the conduct 

9 of the proceedings. 

10 ‘‘(2) No person may attempt to coerce or, by any un11 authorized means, influence the action of a commission 

12 or any member thereof, in reaching the findings or sen13 tence in any case, or the action of any convening, approv14 ing, or reviewing authority with respect to his judicial acts. 

15 ‘‘(3) The foregoing provisions of this subsection shall 

16 not apply with respect to— 

17 ‘‘(A) general instructional or informational 

18 courses in military justice if such courses are de19 signed solely for the purpose of instructing members 

20 of a command in the substantive and procedural as21 pects of military commissions; or 

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

23 proceedings by the military judge or counsel. 

24 ‘‘(b) PROHIBITION ON CONSIDERATION OF ACTIONS

25 ON COMMISSION IN EVALUATION OF FITNESS.—In the 

26 preparation of an effectiveness, fitness, or efficiency report 


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

2 for the purpose of determining whether a commissioned 

3 officer of the armed forces is qualified to be advanced, in 

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

5 such officer or in determining whether any such officer 

6 should be retained on active duty, no person may— 

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

8 duty of any member of a military commission under 

9 this chapter; or 

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

11 to any commissioned officer because of the zeal with 

12 which such officer, in acting as counsel, represented 

13 any accused before a military commission under this 

14 chapter. 

15 ‘‘§ 949c. Duties of trial counsel and defense counsel 

16 ‘‘(a) TRIAL COUNSEL.—The trial counsel of a mili17 tary commission shall prosecute in the name of the United 

18 States. 

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

20 represented in his defense before a military commission 

21 as provided in this subsection. 

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

23 counsel detailed under section 948k of this title. 

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

25 counsel if retained by him, provided that civilian counsel— 


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1 ‘‘(A) is a United States citizen; 

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

3 State, district, territory, or possession of the United 

4 States, or before a Federal court; 

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

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

7 competent governmental authority for relevant mis8 conduct; 

9 ‘‘(D) has been determined to be eligible for ac10 cess to information classified at the level Secret or 

11 higher; and 

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

13 with all applicable regulations or instructions for 

14 counsel, including any rules of court for conduct 

15 during the proceedings. 

16 ‘‘Civilian defense counsel shall protect any classified 

17 information received during the course of their representa18 tion of the accused in accordance with all applicable law 

19 governing the protection of classified information, and 

20 shall not divulge such information to any person not au21 thorized to receive it. 

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

23 military counsel detailed shall act as associate counsel. 

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

25 more than one military counsel. However, the person auVerDate Aug 31 2005 01:26 Sep 14, 2006 Jkt 049196 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S3861.PCS S3861

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1 thorized under regulations prescribed under section 948k 

2 of this title to detail counsel in his sole discretion may 

3 detail additional military counsel. 

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

5 for the prosecution who testifies before the commission. 

6 ‘‘§ 949d. Sessions 

7 ‘‘(a) SESSIONS WITHOUT PRESENCE OF MEM8 BERS.—(1) At any time after the service of charges which 

9 have been referred for trial by military commission, the 

10 military judge may call the commission into session with11 out the presence of the members for the purpose of— 

12 ‘‘(A) hearing and determining motions raising 

13 defenses or objections which are capable of deter14 mination without trial of the issues raised by a plea 

15 of not guilty; 

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

17 may be ruled upon by the military judge under this 

18 chapter, whether or not the matter is appropriate for 

19 later consideration or decision by the members of 

20 the commission; 

21 ‘‘(C) if permitted by regulations of the Sec22 retary, receiving the pleas of the accused; and 

23 ‘‘(D) performing any other procedural function 

24 which may be performed by the military judge under 

25 this chapter or under rules prescribed pursuant to 


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

2 the presence of the members of the commission. 

3 ‘‘(2) Except as provided in subsection (e), any pro4 ceedings under paragraph (1) shall be conducted in the 

5 presence of the accused, defense counsel, and trial counsel, 

6 and shall be made part of the record. 

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

8 Except as provided in subsections (c) and ( e), all pro9 ceedings of a military commission under this chapter shall 

10 be in the presence of the accused, defense counsel, and 

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

12 ‘‘(c) DELIBERATIONS OR VOTE OF MEMBERS.— 

13 When the members of the commission deliberate or vote, 

14 only the members may be present. 

15 ‘‘(d) PUBLIC PROCEEDINGS.—(1) The military com16 mission shall hold open and public proceedings. 

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

18 or a part of the proceedings of a military commission 

19 under this chapter only upon making a specific finding 

20 that such closure is necessary to— 

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

22 could reasonably be expected to cause identifiable 

23 damage to the public interest or the national secu24 rity, including intelligence or law enforcement 

25 sources, methods, or activities; or 


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

2 ‘‘(e) LIMITED EXCLUSION OF THE ACCUSED FOR

3 THE PROTECTION OF CLASSIFIED INFORMATION.—(1) 

4 The military judge may, subject to the provisions of this 

5 subsection, permit the admission in a military commission 

6 under this chapter of classified information outside the 

7 presence of the accused. 

8 ‘‘(2) The military judge shall not exclude the accused 

9 from any portion of the proceeding except upon a specific 

10 finding that extraordinary circumstances exist such that— 

11 ‘‘(A) the exclusion of the accused— 

12 ‘‘(i) is necessary to protect classified infor13 mation the disclosure of which to the accused 

14 could reasonably be expected to cause identifi15 able damage to the national security, including 

16 intelligence or law enforcement sources, meth17 ods, or activities; or 

18 ‘‘(ii) is necessary to ensure the physical 

19 safety of individuals; or 

20 ‘‘(iii) is necessary to prevent disruption of 

21 the proceedings by the accused; and 

22 ‘‘(B) the exclusion of the accused— 

23 ‘‘(i) is no broader than necessary; and 

24 ‘‘(ii) will not deprive the accused of a full 

25 and fair trial. 


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

2 upon a presentation, including an ex parte or in camera 

3 presentation, by either trial counselor defense counsel. 

4 ‘‘(B) Before trial counsel may make a presentation 

5 described in subparagraph (A) requesting the admission 

6 of classified evidence outside the presence of the accused, 

7 the head of the executive or military department or gov8 ernmental agency which has control over the matter (after 

9 personal consideration by that officer) shall certify in writ10 ing to the military judge that— 

11 ‘‘(i) the disclosure of such classified information 

12 to the accused could reasonably be expected to prej13 udice the national security; and 

14 ‘‘(ii) such evidence has been declassified to the 

15 maximum extent possible, consistent with the re16 quirements of national security. 

17 ‘‘(4)(A) No evidence shall be admitted if the accused 

18 is not present for its admission or the evidence is not oth19 erwise provided to the accused, unless the evidence is clas20 sified information and the military judge makes a specific 

21 finding that— 

22 ‘‘(i) consideration of the evidence by the com23 mission, without the presence of the accused, is war24 ranted; and 


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1 ‘‘(ii) admission of an unclassified summary or 

2 redacted version of that evidence would not be an 

3 adequate substitute and, in the case of testimony, al4 ternative methods to obscure the identity of the wit5 ness are not adequate; and 

6 ‘‘(iii) admission of the evidence would not de7 prive the accused of a full and fair trial. 

8 ‘‘(B) If the accused is excluded from a portion of the 

9 proceeding, the accused shall be provided with a redacted 

10 transcript of the proceeding and, to the extent practicable, 

11 an unclassified summary of any evidence introduced. 

12 Under no circumstances shall such a summary or redacted 

13 transcript compromise the interests warranting the exclu14 sion of the accused under this subsection. 

15 ‘‘(5)(A) Military defense counsel shall be present and 

16 able to participate in all trial proceedings, and shall be 

17 given access to all evidence admitted under subparagraph 

18 (4). 

19 ‘‘(B) Civilian defense counsel shall be permitted to 

20 be present and to participate in all trial proceedings, and 

21 shall be given access to evidence admitted under sub-para22 graph (4), provided that civilian defense counsel has ob23 tained the necessary security clearances and that such 

24 presence and access are consistent with regulations that 


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1 the Secretary may prescribe to protect classified informa2 tion. 

3 ‘‘(C) Notwithstanding any other provision of law, any 

4 defense counsel who receives classified information admit5 ted pursuant to subparagraph (4) shall not be obligated 

6 to, and may not, disclose that evidence to the accused. 

7 ‘‘(f) ADMISSION OF STATEMENTS OF ACCUSED.—(1) 

8 Notwithstanding any other provision in this chapter, no 

9 statement made by the accused during an interrogation, 

10 even if otherwise classified, may be admitted into evidence 

11 in a military commission under this chapter unless the ac12 cused is present for its admission or the evidence is other13 wise provided to the accused. 

14 ‘‘(2) For purposes of this subsection, a ‘statement’ 

15 is a statement communicated knowingly and directly by 

16 the accused in response to questioning by foreign or 

17 United States military, intelligence, or criminal investiga18 tive personnel. This paragraph shall not be construed to 

19 prevent the redaction of intelligence sources or methods, 

20 which do not constitute statements of the accused, from 

21 any document provided to the accused or admitted into 

22 evidence. 


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1 ‘‘§ 949e. Continuances 

2 ‘‘The military judge may, for reasonable cause, grant 

3 a continuance to any party for such time, and as often, 

4 as may appear to be just. 

5 ‘‘§ 949f. Challenges 

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

7 judge and members of the commission may be challenged 

8 by the accused or the trial counsel for cause stated to the 

9 commission. The military judge shall determine the rel10 evance and validity of the challenges for cause, and may 

11 not receive a challenge to more than one person at a time. 

12 Challenges by the trial counsel shall ordinarily be pre13 sented and decided before those by the accused are of14 fered. 

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

16 and the trial counsel is entitled to one peremptory chal17 lenge, but the military judge may not be challenged except 

18 for cause. 

19 ‘‘(c) CHALLENGES AGAINST ADDITIONAL MEM20 BERS.—Whenever additional members are detailed to the 

21 court, and after any challenges for cause against such ad22 ditional members are presented and decided each accused 

23 and the trial counsel are entitled to one peremptory chal24 lenge against members not previously subject to peremp25 tory challenge. 


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1 ‘‘§ 949g. Oaths 

2 ‘‘(a) IN GENERAL.—(1) Before performing their re3 spective duties, military judges, members of commissions, 

4 trial counsel, defense counsel, reporters, and interpreters 

5 shall take an oath to perform their duties faithfully. 

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

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

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

9 for all cases in which these duties are to be performed 

10 or for a particular case, shall be as prescribed in regula11 tions of the Secretary. These regulations may provide 

12 that— 

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

14 military judge, trial counsel, or defense counsel, may 

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

16 person certified to be qualified or competent for 

17 duty; and 

18 ‘‘(B) if such an oath is taken it need not again 

19 be taken at the time the judge advocate, or other 

20 person is detailed to that duty. 

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

22 commission under this chapter shall be examined on oath. 

23 ‘‘(c) OATH DEFINED.—As used in this section, 

24 ‘‘oath’’ includes an affirmation. 


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1 ‘‘§ 949h. Former jeopardy 

2 ‘‘(a) IN GENERAL.—No person may, without his con3 sent, be tried by a commission a second time for the same 

4 offense. 

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

6 accused has been found guilty by military commission 

7 upon any charge or specification is a trial in the sense 

8 of this section until the finding of guilty has become final 

9 after review of the case has been fully completed. 

10 ‘‘§ 949i. Pleas of the accused 

11 ‘‘(a) PLEA OF NOT GUILTY.—If an accused after a 

12 plea of guilty sets up matter inconsistent with the plea, 

13 or if it appears that he has entered the plea of guilty 

14 through lack of understanding of its meaning and effect, 

15 or if he fails or refuses to plead, a plea of not guilty shall 

16 be entered in the record, and the commission shall proceed 

17 as though he had pleaded not guilty. 

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

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

20 of guilty has been made by the accused and accepted by 

21 the military judge, a finding of guilty of the charge or 

22 specification may be entered immediately without a vote. 

23 This finding shall constitute the finding of the commission 

24 unless the plea of guilty is withdrawn prior to announce25 ment of the sentence, in which event the proceedings shall 

26 continue 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, including 

6 evidence in the possession of the United States, as speci7 fied in regulations prescribed by the Secretary. 

8 ‘‘(2) Process issued in military commissions to com9 pel witnesses to appear and testify and to compel the pro10 duction 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) TREATMENT OF CERTAIN ITEMS.—The military 

17 judge in a military commission under this chapter may, 

18 upon a sufficient showing, authorize trial counsel in mak19 ing documents available to the defense through discovery 

20 conducted pursuant to such rules as the Secretary shall 

21 prescribe— 

22 ‘‘(1) to delete specified items of classified infor23 mation from such documents; 

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

25 the information for such classified documents; or 


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1 ‘‘(3) to substitute an unclassified statement ad2 mitting relevant facts that classified information 

3 would tend to prove. 

4 ‘‘(c) DISCLOSURE OF EXCULPATORY EVIDENCE.— 

5 (1) As soon as practicable, trial counsel in a military com6 mission under this chapter shall disclose to the defense 

7 the existence of any evidence known to trial counsel that 

8 reasonably tends to exculpate the accused. 

9 ‘‘(2) Exculpatory evidence that is classified may be 

10 provided solely to defense counsel, and not the accused, 

11 after in camera review by the military judge. 

12 ‘‘(3) Before classified evidence may be withheld from 

13 the accused under this subsection, the executive or mili14 tary department or governmental agency which has con15 trol over the matter shall ensure and shall certify in writ16 ing to the military judge that the disclosure of such evi17 dence to the accused could reasonably be expected to prej18 udice the national security and that such evidence has 

19 been declassified to the maximum extent possible, con20 sistent with the requirements of national security. 

21 ‘‘(4) Any classified exculpatory evidence that is not 

22 disclosed to the accused under this subsection— 

23 ‘‘(A) shall be provided to military defense coun24 sel; and 


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1 ‘‘(B) shall be provided to civilian defense coun2 sel, provided that civilian defense counsel has ob3 tained the necessary security clearances and access 

4 to such evidence is consistent with regulations that 

5 the Secretary may prescribe to protect classified in6 formation; and 

7 ‘‘(C) shall be provided to the accused in a re8 dacted or summary form, if it is possible to do so 

9 without compromising intelligence sources, methods, 

10 or activities, or other national security interests. 

11 ‘‘(5) Notwithstanding any other provision of law, any 

12 defense counsel who receives evidence under this sub13 section shall not be obligated to, and may not, disclose 

14 that evidence to the accused. 

15 ‘‘§ 949k. Defense of lack of mental responsibility 

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

17 defense in a trial by military commission that, at the time 

18 of the commission of the acts constituting the offense, the 

19 accused, as a result of a severe mental disease or defect, 

20 was unable to appreciate the nature and quality or the 

21 wrongfulness of the acts. Mental disease or defect does 

22 not otherwise constitute a defense. 

23 ‘‘(b) BURDEN OF PROOF.—The accused has the bur24 den of proving the defense of lack of mental responsibility 

25 by clear and convincing evidence. 


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1 ‘‘(c) FINDINGS FOLLOWING ASSERTION OF DE2 FENSE.—Whenever lack of mental responsibility of the ac3 cused with respect to an offense is properly at issue, the 

4 military judge shall instruct the members of the commis5 sion as to the defense of lack of mental responsibility 

6 under this section and shall charge them to find the ac7 cused— 

8 ‘‘(1) guilty; 

9 ‘‘(2) not guilty; or 

10 ‘‘(3) not guilty only by reason of lack of mental 

11 responsibility. 

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

13 The accused shall be found not guilty only by reason of 

14 lack of mental responsibility under subsection (c)(3) only 

15 if a majority of the members of the commission at the 

16 time the vote is taken determines that the defense of lack 

17 of mental responsibility has been established. 

18 ‘‘§ 949l. Voting and rulings 

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

20 by members of a military commission on the findings and 

21 on the sentence shall be by secret written ballot. 

22 ‘‘(b) RULINGS.—(1) The military judge shall rule 

23 upon all questions of law, including the admissibility of 

24 evidence, and all interlocutory questions arising during the 

25 proceedings. 


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1 ‘‘(2) Any such ruling made by the military judge 

2 upon any question of law or any interlocutory question 

3 other than the factual issue of mental responsibility of the 

4 accused is conclusive and constitutes the ruling of the 

5 commission. However, the military judge may change his 

6 ruling at any time during the trial. 

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

8 is taken of the findings, the military judge shall, in the 

9 presence of the accused and counsel, instruct the members 

10 of the commission as to the elements of the offense and 

11 charge them— 

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

13 innocent until his guilt is established by legal and 

14 competent evidence beyond reasonable doubt; 

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

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

17 the doubt must be resolved in favor of the accused 

18 and he must be acquitted; 

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

20 degree of guilt, the finding must be in a lower de21 gree as to which there is no reasonable doubt; and 

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

23 guilt of the accused beyond a reasonable doubt is 

24 upon the United States. 


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1 ‘‘§ 949m. Number of votes required 

2 ‘‘(a) CONVICTION.—No person may be convicted of 

3 any offense, except as provided in section 949i(b) of this 

4 title or by concurrence of two-thirds of the members 

5 present at the time the vote is taken. 

6 ‘‘(b) SENTENCES.—(1) Except. as provided in para7 graphs (2) and (3), sentences shall be determined by a 

8 military commission by the concurrence of two-thirds of 

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

10 ‘‘(2) No person may be sentenced to suffer death, ex11 cept insofar as— 

12 ‘‘(A) death has been expressly authorized under 

13 this Act for an offense of which the accused has 

14 been found guilty; 

15 ‘‘(B) the charges referred to the commission ex16 pressly sought the penalty of death; 

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

18 by the concurrence of all the members of the mili19 tary commission present at the time the vote is 

20 taken; and 

21 ‘‘(D) all members of the military commission 

22 present at the time the vote was taken concurred in 

23 the sentence of death. 

24 ‘‘(3) No person may be sentenced to life imprison25 ment or to confinement for more than 10 years, except 


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1 by the concurrence of three-fourths of the members at the 

2 time the vote is taken. 

3 ‘‘(c) NUMBER OF MEMBERS REQUIRED FOR PEN4 ALTY OF DEATH.—(1) Except as provided in paragraph 

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

6 number of members shall be not less than 12. 

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

8 12 members are not reasonably available because of phys9 ical conditions or military exigencies, the convening au10 thority shall specify a lesser number of members for the 

11 military commission (but not fewer than 5 members), and 

12 the military commission may be assembled and the trial 

13 held with not fewer than the number of members so speci14 fied. In such a case, the convening authority shall make 

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

16 stating why a greater number of members were not rea17 sonably available. 

18 ‘‘§ 949n. Military commission to announce action 

19 ‘‘A military commission shall announce its findings 

20 and sentence to the parties as soon as determined. 

21 ‘‘§ 949o. Record of trial 

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

23 commission shall keep a separate, substantially verbatim, 

24 record of the proceedings in each case brought before it, 

25 and the record shall be authenticated by the signature of 


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1 the military judge. If the record cannot be authenticated 

2 by the military judge by reason of his death, disability, 

3 or absence, it shall be authenticated by the signature of 

4 the trial counsel or by that of a member of the commission 

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

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

7 and as provided by regulation, the record of the military 

8 commission may contain a classified annex. 

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

10 record of the proceedings and testimony shall be prepared 

11 in every military commission established under this chap12 ter. 

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

14 the record of the proceedings of each military commission 

15 shall be given to the accused as soon as it is authenticated. 

16 Where the record contains classified information, or a 

17 classified annex, the accused shall receive a redacted 

18 version of the record. The appropriate defense counsel 

19 shall have access to the unredacted record, as provided 

20 by regulation. 

21 ‘‘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 or inflicted upon any person subject to this chapter. 

6 The use of irons, single or double, except for the purpose 

7 of safe custody, is prohibited. 

8 ‘‘§ 949t. Maximum limits 

9 ‘‘The punishment which a military commission may 

10 direct for an offense may not exceed such limits as the 

11 President or Secretary may prescribe for that offense. 

12 ‘‘§ 949u. Execution of confinement 

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

14 Secretary may prescribe, a sentence of confinement ad15 judged by a military commission may be carried into exe16 cution by confinement— 

17 ‘‘(1) in any place of confinement under the con18 trol of any of the armed forces; or 

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

20 under the control of the United States or its allies 

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

22 ‘‘(b) TREATMENT DURING CONFINEMENT BY OTHER

23 THAN THE ARMED FORCES.—Persons confined under 

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

25 under the control of one of the armed forces are subject 

26 to the same discipline and treatment as persons confined 


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1 or committed by the courts of the United States or of the 

2 State, Territory, District of Columbia, or place in which 

3 the institution is situated. 

4 ‘‘SUBCHAPTER VI—POST-TRIAL PROCEDURE 

5 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 Court of Military Commission Review. 

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

‘‘950h. Appellate counsel. 

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

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

6 ‘‘§ 950a. Error of law; lesser included offense 

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

8 military commission may not be held incorrect on the 

9 ground of an error of law unless the error materially prej10 udices the substantial rights of the accused. 

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

12 authority with the power to approve or affirm a finding 

13 of guilty may approve or affirm, instead, so much of the 

14 finding as includes a lesser included offense. 

15 ‘‘§ 950b. Review by the convening authority 

16 ‘‘(a) NOTICE TO CONVENING AUTHORITY OF FIND17 INGS AND SENTENCE.—The findings and sentence of a 

18 military commission under this chapter shall be reported 


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1 in writing promptly to the convening authority after the 

2 announcement of the sentence. 

3 ‘‘(b) SUBMITTAL OF MATTERS BY ACCUSED TO CON4 VENING AUTHORITY.—(1) The accused may submit to the 

5 convening authority matters for consideration by the con6 vening authority with respect to the findings and the sen7 tence of the military commission under this chapter. 

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

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

10 within 20 days after the accused has been given an au11 thenticated record of trial under section 949o(c) of this 

12 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, for good cause, may 

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 mission to the convening authority under paragraph (1). 

20 Such a waiver must 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 submission under 

23 this subsection shall be deemed to have expired upon the 

24 submission of such a waiver to the convening authority. 


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

2 The authority under this section to modify the findings 

3 and sentence of a military commission under this chapter 

4 is a matter of the sole discretion and prerogative of the 

5 convening authority. 

6 ‘‘(2)(A) Action on the sentence of a military commis7 sion shall be taken by the convening authority. 

8 ‘‘(B) Subject to regulations of the Secretary, such ac9 tion may be taken only after consideration of any matters 

10 submitted by the accused under subsection (b) or after 

11 the time for submitting such matters expires, whichever 

12 is earlier. 

13 ‘‘(C) In taking action under this paragraph, the con14 vening authority, in his sole discretion, may approve, dis15 approve, commute, or suspend the sentence in whole or 

16 in part. The convening authority may not increase the sen17 tence beyond that which is found by the commission. 

18 ‘‘(3) Action on the findings of a military commission 

19 by the convening authority is not required. However, the 

20 convening authority, in his sole discretion, may— 

21 ‘‘(A) dismiss any charge or specification by set22 ting aside a finding of guilty thereto; or 

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

24 a finding of guilty to an offense that is a lesser in25 cluded offense of the offense stated in the charge. 


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1 ‘‘(4) The convening authority shall serve on the ac2 cused or on defense counsel notice of any action taken by 

3 the convening authority under this subsection. 

4 ‘‘(d) ORDER OF REVISION OR REHEARING.—(1) Sub5 ject to paragraphs (2) and (3), the convening authority, 

6 in his sole discretion, may order a proceeding in revision 

7 or a rehearing. 

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

9 proceeding in revision may be ordered if— 

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

11 the record; or 

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

13 action by a military commission with respect to the 

14 findings or sentence that can be rectified without 

15 material prejudice to the substantial rights of the 

16 accused. 

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

18 ‘‘(i) reconsider a finding of not guilty of any 

19 specification or a ruling which amounts to a finding 

20 of not guilty; 

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

22 charge, unless there has been a finding of guilty 

23 under a specification laid under that charge, which 

24 sufficiently alleges a violation; 


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1 ‘‘(iii) increase the severity of the sentence un2 less the sentence prescribed for the offense is man3 datory. 

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

5 authority if he disapproves the findings and sentence and 

6 states the reasons for disapproval of the findings. If such 

7 a person disapproves the findings and sentence and does 

8 not order a rehearing, he shall dismiss the charges. A re9 hearing as to the findings may not be ordered where there 

10 is a lack of sufficient evidence in the record to support 

11 the findings. A rehearing as to the sentence may be or12 dered if the convening authority disapproves the sentence. 

13 ‘‘§ 950c. Waiver or withdrawal of appeal 

14 ‘‘(a) WAIVER OF RIGHT OF REVIEW.—(1) In each 

15 case subject to appellate review under section 950f and 

16 950g of this title, except a case in which the sentence as 

17 approved under section 950b of this title includes death, 

18 the accused may file with the convening authority a state19 ment expressly waiving the right of the accused to such 

20 review. 

21 ‘‘(2) A waiver under paragraph (1) shall be signed 

22 by both the accused and by a defense counsel. 

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

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

25 on the accused under section 950b(c)(4) of this title. The 


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1 convening authority, for good cause, may extend the pe2 riod for such filing by not more than 30 days. 

3 ‘‘(b) WITHDRAWAL OF APPEAL.—Except in a case in 

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

5 title includes death, the accused may withdraw an appeal 

6 at any time. 

7 ‘‘(c) EFFECT OF WAIVER OR WITHDRAWAL.—A 

8 waiver of the right to appellate review or the withdrawal 

9 of an appeal under this section bars review under section 

10 950f or 950g of this title. 

11 ‘‘§ 950d. Appeal by the United States 

12 ‘‘(a) INTERLOCUTORY APPEAL.—(1) Except as pro13 vided in paragraph (2), in a trial by military commission 

14 under this chapter, the United States may take an inter15 locutory appeal to the Court of Military Commission Re16 view of any order or ruling of the military judge that— 

17 ‘‘(A) terminates commission proceedings with 

18 respect to a charge or specification; 

19 ‘‘(B) excludes evidence that is substantial proof 

20 of a fact material in the proceeding; or 

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

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

23 ‘‘(2) The United States may not appeal under para24 graph (1) an order or ruling that is, or amounts to, a findVerDate Aug 31 2005 01:26 Sep 14, 2006 Jkt 049196 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\S3861.PCS S3861

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1 ing of not guilty by the commission with respect to the 

2 charge or specification. 

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

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

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

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

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

8 forwarded by means prescribed under regulations of the 

9 Secretary directly to the Court of Military Commission Re10 view. In ruling on an appeal under this section, the Court 

11 of Military Commission Review may act only with respect 

12 to matters of law. 

13 ‘‘(d) COURT OF APPEALS.—The United States may 

14 appeal an adverse ruling under subsection (c) to the 

15 United States Court of Appeals for the District of Colum16 bia Circuit by filing a petition for review in the Court of 

17 Appeals within 10 days after the date of such ruling. Re18 view under this subsection shall be at the discretion of the 

19 Court of Appeals. 

20 ‘‘§ 950e. Rehearings 

21 ‘‘(a) COMPOSITION OF MILITARY COMMISSION FOR

22 REHEARING.—Each rehearing under this chapter shall 

23 take place before a military commission composed of mem24 bers not members of the commission which first heard the 

25 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 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) unless the sentence prescribed for the 

12 offense is mandatory. 

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

14 the first commission was in accordance with a pretrial 

15 agreement and the accused at the rehearing changes his 

16 plea with respect to the charges or specifications upon 

17 which the pretrial agreement was based, or otherwise does 

18 not comply with pretrial agreement, the sentence as to 

19 those charges or specifications may include any punish20 ment not in excess of that lawfully adjudged at the first 

21 commission. 

22 ‘‘§ 950f. Review by Court of Military Commission Re23 view 

24 ‘‘(a) COURT ESTABLISHED.—(1) The Secretary shall 

25 establish a Court of Military Commission Review which 


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1 shall be composed of one or more panels, and each such 

2 panel shall be composed of not less than three appellate 

3 military judges. 

4 ‘‘(2) For the purpose of reviewing military commis5 sion decisions, the court may sit in panels or as a whole 

6 in accordance with rules prescribed by the Secretary. 

7 ‘‘(b) COMPOSITION OF THE COURT.—(1) The Sec8 retary shall assign appellate military judges to a Court 

9 of Military Commission Review. 

10 ‘‘(2) Each appellate military judge shall meet the 

11 qualifications for military judges prescribed by section 

12 948j(b) of this Act or shall be a civilian with comparable 

13 qualifications. 

14 ‘‘(3) No person may be appointed to serve as an ap15 pellate military judge in any case in which that person 

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

17 ‘‘(c) RIGHT OF APPEAL.—The accused may appeal 

18 from the final decision of a military commission, and the 

19 United States may appeal as provided in section 950d of 

20 this title, to the Court of Military Commission Review in 

21 accordance with procedures prescribed under regulations 

22 of the Secretary. 

23 ‘‘(d) SCOPE OF REVIEW.—In ruling on an appeal 

24 under this section, the Court of Military Commission Re25 view may act only with respect to matters of law. 


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1 ‘‘§ 950g. Review by the United States Court of Ap2 peals for the District of Columbia Circuit 

3 and the Supreme Court of the United 

4 States 

5 ‘‘(a) IN GENERAL.—(1)(A) Except as provided in 

6 subparagraph (B), the United States Court of Appeals for 

7 the District of Columbia Circuit shall have exclusive juris8 diction to determine the validity of a final judgment ren9 dered by a military commission, pursuant to Section 

10 1005(e)(3) of the Detainee Treatment Act of 2005. 

11 ‘‘(B) The Court of Appeals shall not review the final 

12 judgment until all other appeals under this chapter have 

13 been waived or exhausted. 

14 ‘‘(2) A petition for review must be filed by the ac15 cused in the Court of Appeals by no longer than 20 days 

16 from the earlier of when— 

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

18 Court of Military Commission Review is served on 

19 the accused or on defense counsel; or 

20 ‘‘(B) the accused submits, in the form pre21 scribed by section 950c of this title, a written notice 

22 waiving his right to appeal under section 950f of 

23 this title. 

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

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


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1 the final judgment of the Court of Appeals pursuant to 

2 section 1257 of title 28, United States Code. 

3 ‘‘§ 950h. Appellate counsel 

4 ‘‘(a) APPOINTMENT.—The Secretary shall, by regula5 tion, establish procedures for the appointment of appellate 

6 counsel for the United States and for the accused in mili7 tary commissions under this chapter. Appellate counsel 

8 shall meet the qualifications for appearing before military 

9 commissions under this chapter. 

10 ‘‘(b) REPRESENTATION OF UNITED STATES.—Appel11 late counsel may represent the United States in any ap12 peal or review proceeding under this chapter. Appellate 

13 Government counsel may represent the United States be14 fore the Supreme Court in cases arising under this chapter 

15 when requested to do so by the Attorney General. 

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

17 shall be represented by appellate military counsel before 

18 the Court of Military Commission Review, the United 

19 State Court of Appeals for the District of Columbia Cir20 cuit, or the Supreme Court, or by civilian counsel if re21 tained by him. 

22 ‘‘§ 950i. Execution of sentence; suspension of sentence 

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

24 UPON APPROVAL BY THE PRESIDENT.—If the sentence 

25 of a military commission under this chapter extends to 


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

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

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

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

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

6 UPON FINAL JUDGMENT OF LEGALITY OF PRO7 CEEDINGS.—(1) If the sentence of a military commission 

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

9 be executed until there is a final judgment as to the legal10 ity of the proceedings (and with respect to death, approval 

11 under subsection (a)). 

12 ‘‘(2) A judgment as to legality of the proceedings is 

13 final for purposes of paragraph (1) when— 

14 ‘‘(A) review is completed by the Court of Mili15 tary Commission Review and— 

16 ‘‘(i) the time for the accused to file a peti17 tion for review by the Court of Appeals for the 

18 D.C. Circuit has expired; 

19 ‘‘(ii) the accused has not filed a timely pe20 tition for such review; and 

21 ‘‘(iii) the case is not otherwise under re22 view by that Court; or 

23 ‘‘(B) review is completed in accordance with 

24 judgment of the Court of Appeals for the D.C. Cir25 cuit and— 


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

2 timely filed; 

3 ‘‘(ii) such a petition is denied by the Su4 preme Court; or 

5 ‘‘(iii) review is otherwise completed in ac6 cordance with the judgment of the Supreme 

7 Court. 

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

9 the convening authority acting on the case (if other than 

10 the Secretary), may suspend the execution of any sentence 

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

12 ‘‘§ 950j. Finality of proceedings, findings, and sen13 tences 

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

15 trial provided by this chapter, the proceedings, findings, 

16 and sentences of military commissions as approved, re17 viewed, or affirmed as required by this chapter, are final 

18 and conclusive. Orders publishing the proceedings of mili19 tary commissions are binding upon all departments, 

20 courts, agencies, and officers of the United States, subject 

21 only to authority of the President. 

22 ‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS FOR RE23 VIEW OF MILITARY COMMISSION PROCEDURES AND AC24 TIONS.—Except as otherwise provided in this chapter, and 

25 notwithstanding any other law (including section 2241 of 


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1 title 28, United States Code, or any other habeas corpus 

2 provision), no court, justice, or judge shall have jurisdic3 tion to hear or consider any claim or cause of action what4 soever, including any action pending on or filed after the 

5 date of enactment of this chapter, relating to the prosecu6 tion, trial, or judgment of a military commission convened 

7 under this section, including challenges to the lawfulness 

8 of the procedures of military commissions under this chap9 ter. 

10 ‘‘SUBCHAPTER VII—PUNITIVE MATTERS 

‘‘Sec. 

‘‘950p. Substantive offenses. 

‘‘950q. Principals. 

‘‘950r. Accessory after the fact. 

‘‘950s. Conviction of lesser offenses. 

‘‘950t. Attempts. 

‘‘950u. Solicitation. 

‘‘950v. Crimes triable by military commission. 

‘‘950w. Perjury and obstruction of justice. 

‘‘950x. Contempt. 

11 ‘‘§ 950p. Substantive offenses generally 

12 ‘‘(a) PURPOSE.—The following provisions codify of13 fenses that have traditionally been triable by military com14 missions. This Act does not establish new crimes that did 

15 not exist before its establishment, but rather codifies those 

16 crimes for trial by military commission. 

17 ‘‘(b) EFFECT.—Because these provisions are declara18 tive of existing law, they do not preclude trial for crimes 

19 that occurred prior to their effective date. 


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1 ‘‘§ 950q. Principals 

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

3 chapter who— 

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

5 chapter, or aids, abets, counsels, commands, or pro6 cures its commission; 

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

8 performed by him would be punishable by this chap9 ter; or 

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

11 to acts punishable under this chapter, knew, had 

12 reason to know, or should have known, that a subor13 dinate was about to commit such acts or had done 

14 so and the superior failed to take the necessary and 

15 reasonable measures to prevent such acts or to pun16 ish the perpetrators thereof. 

17 ‘‘§ 950r. Accessory after the fact 

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

19 that an offense punishable by this chapter has been com20 mitted, receives, comforts, or assists the offender in order 

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

22 shall be punished as a military commission may direct. 

23 ‘‘§ 950s. Conviction of lesser offenses 

24 ‘‘An accused may be found guilty of an offense nec25 essarily included in the offense charged or of an attempt 


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1 to commit either the offense charged or an offense nec2 essarily included therein. 

3 ‘‘§ 950t. Attempts 

4 ‘‘(a) IN GENERAL.—Any person subject to this chap5 ter who attempts to commit any offense punishable by this 

6 Act shall be punished as a military commission may direct. 

7 ‘‘(b) SCOPE OF OFFENSE.—An act, done with spe8 cific intent to commit an offense under this chapter, 

9 amounting to more than mere preparation and tending, 

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

11 to commit that offense. 

12 ‘‘(c) EFFECT OF CONSUMMATION.—Any person sub13 ject to this chapter may be convicted of an attempt to com14 mit an offense although it appears on the trial that the 

15 offense was consummated. 

16 ‘‘§ 950u. Solicitation 

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

18 advises another or others to commit one or more sub19 stantive offenses triable by military commission shall, if 

20 the offense solicited or advised is attempted or committed, 

21 be punished with the punishment provided for the commis22 sion of the offense, but, if the offense solicited or advised 

23 is not committed or attempted, he shall be punished as 

24 a military commission may direct. 


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1 ‘‘§ 950v. Crimes triable by military commission 

2 ‘‘(a) DEFINITIONS AND CONSTRUCTION.—(1) For 

3 purposes of this chapter, the term ‘military objective’ re4 fers to combatants and those objects during an armed con5 flict which, by their nature, location, purpose, or use, ef6 fectively contribute to the opposing force’s war-fighting or 

7 war-sustaining capability and whose total or partial de8 struction, capture, or neutralization would constitute a 

9 definite military advantage to the attacker under the cir10 cumstances at the time of the attack. 

11 ‘‘(2) For purposes of this section only, ‘protected per12 son’ refers to any person entitled to protection under one 

13 or more of the Geneva Conventions, including civilians not 

14 taking an active part in hostilities, military personnel 

15 placed hors de combat by sickness, wounds, or detention, 

16 and military medical or religious personnel. 

17 ‘‘(3) For purposes of this chapter, the term ‘protected 

18 property’ refers to property specifically protected by the 

19 law of war such as buildings dedicated to religion, edu20 cation, art, science or charitable purposes, historic monu21 ments, hospitals, or places where the sick and wounded 

22 are collected, provided they are not being used for military 

23 purposes or are not otherwise military objectives. Such 

24 property would include objects properly identified by one 

25 of the distinctive emblems of the Geneva Conventions but 

26 does not include all civilian property. 


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1 ‘‘(4) The intent required for offenses (1), (2), (3), 

2 (4) and (12) under subsection (b) precludes their applica3 bility with regard to collateral damage or to death, dam4 age, or injury incident to a lawful attack. 

5 ‘‘(b) OFFENSES.—The following enumerated of6 fenses, when committed in the context of and associated 

7 with armed conflict, shall be triable by military commis8 sion under this chapter at any time without limitation— 

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

10 person who intentionally kills one or more protected 

11 persons is guilty of the offense of intentionally kill12 ing protected persons and shall be subject to what13 ever punishment the commission may direct, includ14 ing the penalty of death. 

15 ‘‘(2) ATTACKING CIVILIANS.—Any person who 

16 intentionally engages in an attack upon a civilian 

17 population as such or individual civilians not taking 

18 active part in hostilities is guilty of the offense of at19 tacking civilians and shall be subject to whatever 

20 punishment the commission may direct, including, if 

21 death results to one or more of the victims, the pen22 alty of death. 

23 ‘‘(3) ATTACKING CIVILIAN OBJECTS.—Any per24 son who intentionally engages in an attack upon ci25 vilian objects (property that is not a military objecVerDate Aug 31 2005 01:26 Sep 14, 2006 Jkt 049196 PO 00000 Frm 00064 Fmt 6652 Sfmt 6201 E:\BILLS\S3861.PCS S3861

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1 tive) shall be guilty of the offense of attacking civil2 ian objects and shall be subject to whatever punish3 ment the commission may direct. 

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

5 person who intentionally engages in an attack upon 

6 protected property shall be guilty of the offense of 

7 attacking protected property and shall be subject to 

8 whatever punishment the commission may direct. 

9 ‘‘(5) PILLAGING.—Any person who intentionally 

10 and in the absence of military necessity appropriates 

11 or seizes property for private or personal use, with12 out the consent of a person with authority to permit 

13 such appropriation or seizure, shall be guilty of the 

14 offense of pillaging and shall be subject to whatever 

15 punishment the commission may direct. 

16 ‘‘(6) DENYING QUARTER.—Any person who, 

17 with effective command or control over subordinate 

18 groups, declares, orders, or otherwise indicates to 

19 those forces that there shall be no survivors or sur20 render accepted, with the intent therefore to threat21 en an adversary or to conduct hostilities such that 

22 there would be no survivors or surrender accepted, 

23 shall be guilty of denying quarter and shall be sub24 ject to whatever punishment the commission may di25 rect. 


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1 ‘‘(7) TAKING HOSTAGES.—Any person who, 

2 having knowingly seized or detained one or more 

3 persons, threatens to kill, injure, or continue to de4 tain such person or persons with the intent of com5 pelling any nation, person other than the hostage, or 

6 group of persons to act or refrain from acting as an 

7 explicit or implicit condition for the safety or release 

8 of such person or persons, shall be guilty of the of9 fense of taking hostages and shall be subject to 

10 whatever punishment the commission may direct, in11 cluding, if death results to one or more of the vic12 tims, the penalty of death. 

13 ‘‘(8) EMPLOYING POISON OR ANALOGOUS WEAP14 ONS.—Any person who intentionally, as a method of 

15 warfare, employs a substance or a weapon that re16 leases a substance that causes death or serious and 

17 lasting damage to health in the ordinary course of 

18 events, through its asphyxiating, bacteriological, or 

19 toxic properties, shall be guilty of employing poison 

20 or analogous weapons and shall be subject to what21 ever punishment the commission may direct, includ22 ing, if death results to one or more of the victims, 

23 the penalty of death. 

24 ‘‘(9) USING PROTECTED PERSONS AS

25 SHIELDS.—Any person who positions, or otherwise 


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1 takes advantage of, a protected person with the in2 tent to shield a military objective from attack or to 

3 shield, favor, or impede military operations, shall be 

4 guilty of the offense of using protected persons as 

5 shields and shall be subject to whatever punishment 

6 the commission may direct, including, if death re7 sults to one or more of the victims, the penalty of 

8 death. 

9 ‘‘(10) USING PROTECTED PROPERTY AS

10 SHIELDS.—Any person who positions, or otherwise 

11 takes advantage of the location of, protected prop12 erty under the law of war with the intent to shield 

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

14 or impede military operations, shall be guilty of the 

15 offense of using protected property as shields and 

16 shall be subject to whatever punishment the commis17 sion may direct. 

18 ‘‘(11) TORTURE.—Any person who commits an 

19 act specifically intended to inflict severe physical or 

20 mental pain or suffering (other than pain or suf21 fering incidental to lawful sanctions) upon another 

22 person within his custody or physical control for the 

23 purpose of obtaining information or a confession, 

24 punishment, intimidation, coercion, or any reason 

25 based on discrimination of any kind, shall be guilty 


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1 of torture and subject to whatever punishment the 

2 commission may direct, including, if death results to 

3 one or more of the victims, the penalty of death. ‘Se4 vere mental pain or suffering’ has the meaning pro5 vided in 18 U.S.C. 2340(2). 

6 ‘‘(12) CRUEL OR INHUMAN TREATMENT.—Any 

7 person who commits an act intended to inflict severe 

8 physical or mental pain or suffering (other than pain 

9 or suffering incidental to lawful sanctions), including 

10 severe physical abuse, upon another person within 

11 his custody or physical control shall be guilty of 

12 cruel or inhuman treatment and subject to whatever 

13 punishment the commission may direct, including, if 

14 death results to one or more of the victims, the pen15 alty of death. ‘Severe mental pain or suffering’ has 

16 the meaning provided in 18 U.S.C. 2340(2). 

17 ‘‘(13) INTENTIONALLY CAUSING SERIOUS BOD18 ILY INJURY.—Any person who intentionally causes 

19 serious bodily injury to one or more persons, includ20 ing lawful combatants, in violation of the law of war 

21 shall be guilty of the offense of causing serious bod22 ily injury and shall be subject to whatever punish23 ment the commission may direct, including, if death 

24 results to one or more of the victims, the penalty of 


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1 death. ‘Serious bodily injury’ has the meaning pro2 vided in 18 U.S.C. 113(b)(2). 

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

4 who intentionally injures one or more protected per5 sons, by disfiguring the person or persons by any 

6 mutilation thereof or by permanently disabling any 

7 member, limb, or organ of his body, without any le8 gitimate medical or dental purpose, shall be guilty of 

9 the offense of mutilation or maiming and shall be 

10 subject to whatever punishment the commission may 

11 direct, including, if death results to one or more of 

12 the victims, the penalty of death. 

13 ‘‘(15) MURDER IN VIOLATION OF THE LAW OF

14 WAR.—Any person who intentionally kills one or 

15 more persons, including lawful combatants, in viola16 tion of the law of war shall be guilty of the offense 

17 of murder in violation of the law of war and shall 

18 be subject to whatever punishment the commission 

19 may direct, including the penalty of death. 

20 ‘‘(16) DESTRUCTION OF PROPERTY IN VIOLA21 TION OF THE LAW OF WAR.—Any person who inten22 tionally destroys property belonging to another per23 son in violation of the law of war shall be guilty of 

24 the offense of destruction of property in violation of 


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1 the law of war and shall be subject to whatever pun2 ishment the commission may direct. 

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

4 person who, after inviting the confidence or belief of 

5 one or more persons that they were entitled to, or 

6 obliged to accord, protection under the law of war, 

7 intentionally makes use of that confidence or belief 

8 in killing, injuring, or capturing such person or per9 sons, shall be guilty of using treachery or perfidy 

10 and shall be subject to whatever punishment the 

11 commission may direct. 

12 ‘‘(18) IMPROPERLY USING A FLAG OF TRUCE.— 

13 Any person who uses a flag of truce to feign an in14 tention to negotiate, surrender, or otherwise to sus15 pend hostilities when there is no such intention, 

16 shall be guilty of improperly using a flag of truce 

17 and shall be subject to whatever punishment the 

18 commission may direct. 

19 ‘‘(19) IMPROPERLY USING A DISTINCTIVE EM20 BLEM.—Any person who intentionally uses a distinc21 tive emblem recognized by the law of war for com22 batant purposes in a manner prohibited by the law 

23 of war shall be guilty of improperly using a distinc24 tive emblem and shall be subject to whatever punish25 ment the commission may direct. 


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1 ‘‘(20) INTENTIONALLY MISTREATING A DEAD

2 BODY.—Any person who intentionally mistreats the 

3 body of a dead person, without justification by legiti4 mate military necessary, shall be guilty of the of5 fense of mistreating a dead body and shall be sub6 ject to whatever punishment the commission may di7 rect. 

8 ‘‘(21) RAPE.—Any person who forcibly or with 

9 coercion or threat of force wrongfully invades the 

10 body of a person by penetrating, however slightly, 

11 the anal or genital opening of the victim with any 

12 part of the body of the accused or with any foreign 

13 object shall be guilty of the offense of rape and shall 

14 be subject to whatever punishment the commission 

15 may direct. 

16 ‘‘(22) HIJACKING OR HAZARDING A VESSEL OR

17 AIRCRAFT.—Any person subject to this chapter who 

18 intentionally seizes, exercises unauthorized control 

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

20 aircraft that was not a legitimate military target is 

21 guilty of the offense of hijacking or hazarding a ves22 sel or aircraft and shall be subject to whatever pun23 ishment the commission may direct, including, if 

24 death results to one or more of the victims, the pen25 alty of death. 


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1 ‘‘(23) TERRORISM.—Any person subject to this 

2 chapter who intentionally kills or inflicts great bodily 

3 harm on one or more persons, or intentionally en4 gages in an act that evinces a wanton disregard for 

5 human life, in a manner calculated to influence or 

6 affect the conduct of government or civilian popu7 lation by intimidation or coercion, or to retaliate 

8 against government conduct, shall be guilty of the 

9 offense of terrorism and shall be subject to whatever 

10 punishment the commission may direct, including, if 

11 death results to one or more of the victims, penalty 

12 of death. 

13 ‘‘(24) PROVIDING MATERIAL SUPPORT FOR

14 TERRORISM.—Any person who provides material 

15 support or resources, knowing or intending that they 

16 are to be used in preparation for, or in carrying out, 

17 an act of terrorism (as defined in subsection (b)(23) 

18 of this section), or who intentionally provides mate19 rial support or resources to an international terrorist 

20 organization engage in hostilities against the United 

21 States, knowing that such organization has engaged 

22 or engages in terrorism as defined in subsection 

23 (b)(23) of this section), shall be guilty of the offense 

24 of providing material support for terrorism and shall 

25 be subject to whatever punishment the commission 


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1 may direct. The term ‘material support or resources’ 

2 has the meaning provided in 18 U.S.C. 2339A(b). 

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

4 person who, in breach of an allegiance or duty to the 

5 United States, knowingly and intentionally aids an 

6 enemy of the United States or one its co-belligerents 

7 shall be guilty of the offense of wrongfully aiding the 

8 enemy and shall be subject to whatever punishment 

9 the commission may direct. 

10 ‘‘(26) SPYING.—Any person who, with intent or 

11 reason to believe that it is to be used to the injury 

12 of the United States or to the advantage of a for13 eign-power, collects or attempts to collect certain in14 formation by clandestine means or while acting 

15 under false pretenses, for the purpose of conveying 

16 such information to an enemy of the United States 

17 or one of its co-belligerents, shall be guilty of the of18 fense of spying and shall be subject to whatever pun19 ishment the commission may direct, including the 

20 penalty of death. 

21 ‘‘(27) CONSPIRACY.—Any person who conspires 

22 to commit one or more substantive offenses triable 

23 under this section, and who knowingly does any 

24 overt act to effect the object of the conspiracy, shall 

25 be guilty of conspiracy and shall be subject to whatVerDate Aug 31 2005 01:26 Sep 14, 2006 Jkt 049196 PO 00000 Frm 00073 Fmt 6652 Sfmt 6201 E:\BILLS\S3861.PCS S3861

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1 ever punishment the commission may direct, includ2 ing, if death results to one or more of the victims, 

3 the penalty of death. 

4 ‘‘§ 950w. Perjury and obstruction of justice 

5 ‘‘The military commissions also may try offenses and 

6 impose punishments for perjury, false testimony, or ob7 struction of justice related to military commissions. 

8 ‘‘§ 950x. Contempt 

9 ‘‘A military commission may punish for contempt any 

10 person who uses any menacing word, sign, or gesture in 

11 its presence, or who disturbs its proceedings by any riot 

12 or disorder.’’. 

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 

‘‘SUBCHAPTER I—GENERAL PROVISIONS 

‘‘SUBCHAPTER II—COMPOSITION OF COURTS-MARTIAL 

‘‘SUBCHAPTER III—PRE-TRIAL PROCEDURE 

‘‘SUBCHAPTER IV—TRIAL PROCEDURE 

‘‘SUBCHAPTER V—SENTENCES 

‘‘SUBCHAPTER VI—POST-TRIAL PROCEDURE AND REVIEW OF 

MILITARY COMMISSIONS 

‘‘SUBCHAPTER VII—PUNITIVE MATTERS 

18 (b) SUBMITTAL OF PROCEDURES TO CONGRESS.— 


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1 (1) SUBMITTAL OF PROCEDURES.—Not later 

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

3 Act, the Secretary shall submit to the Committees 

4 on Armed Forces of the Senate and the House of 

5 Representatives a report setting forth the procedures 

6 for military commissions prescribed under Chapter 

7 47A of title 10, United States Code (as added by 

8 subsection (a)). 

9 (2) SUBMITTAL OF MODIFICATIONS.—Not later 

10 than 60 days before the date on which any proposed 

11 modification of the procedures described in para12 graph (1) shall go into effect, the Secretary shall 

13 submit to the committees of Congress referred to in 

14 that paragraph a report describing such modifica15 tions. 

16 SEC. 5. JUDICIAL REVIEW. 

17 Section 2241 of title 28, United States Code, is 

18 amended by replacing subsection (e) with the following: 

19 ‘‘(e) Except as provided for in this subsection, and 

20 notwithstanding any other law, no court, justice, or judge 

21 shall have jurisdiction to hear or consider any claim or 

22 cause of action, including an application for a writ of ha23 beas corpus, pending on or filed after the date of enact24 ment of this Act, against the United States or its agents, 

25 brought by or on behalf of any alien detained by the 


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1 United States as an unlawful enemy combatant, relating 

2 to any aspect of the alien’s detention, transfer, treatment, 

3 or conditions of confinement: 

4 ‘‘(1) COMBATANT STATUS REVIEW TRIBUNALS. 

5 The United States Court of Appeals for the District 

6 of Columbia Circuit shall have exclusive jurisdiction 

7 to determine the validity of any final decision of a 

8 Combatant Status Review Tribunal. The scope of 

9 such review is defined in section 1005(e)(2) of the 

10 Detainee Treatment Act of 2005. If the Court 

11 grants a detainee’s petition for review, the Depart12 ment of Defense may conduct a new Combatant Sta13 tus Review Tribunal. 

14 ‘‘(2) MILITARY COMMISSIONS.—Review shall be 

15 had only of final judgments of military commissions 

16 as provided for pursuant to section 247 of the Mili17 tary Commissions Act of 2006. 

18 ‘‘(3) INFORMATION CONSIDERED.—The court 

19 may consider classified information submitted in 

20 camera and ex parte in making any determination 

21 under this section.’’. 

22 SEC. 6. SATISFACTION OF TREATY OBLIGATIONS. 

23 (a) IN GENERAL.—Satisfaction of the prohibitions 

24 against cruel, inhuman, and degrading treatment set forth 

25 in Section 1003 of the Detainee Treatment Act of 2005 


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1 (title X of Public Law 109–148; 119 Stat. 2739; 42 

2 U.S.C. 2000dd) shall fully satisfy United States obliga3 tions with respect to the standards for detention and treat4 ment established by section 1 of common Article 3 of the 

5 Geneva Conventions, with the exception of the obligations 

6 imposed by subsections 1 (b) and 1 (d) of such Article. 

7 (b) RIGHTS NOT JUDICIALLY ENFORCEABLE.— 

8 (1) IN GENERAL.—No person in any habeas ac9 tion or any other action may invoke the Geneva Con10 ventions or any protocols thereto as a source of 

11 rights; whether directly or indirectly, for any pur12 pose in any court of the United States or its States 

13 or territories. 

14 (2) CONSTRUCTION.—Paragraph (1) may not 

15 be construed to affect the obligations of the United 

16 States under the Geneva Conventions. 

17 (c) GENEVA CONVENTIONS DEFINED.—In this sec18 tion, the term ‘‘Geneva Conventions’’ means the inter19 national conventions signed at Geneva on August 12, 

20 1949, including common Article 3. 

21 SEC. 7. WAR CRIMES ACT AMENDMENT. 

22 Section 2441 of title 18, United States Code is 

23 amended by replacing subsection (c)(3) with the following: 

24 ‘‘(3) which constitutes any of the following serious 

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1 tions signed at Geneva 12 August 1949, when committed 

2 in the context of and in association with an armed conflict 

3 not of an international character— 

4 ‘‘(A) TORTURE.—Any person who commits, or 

5 conspires or attempts to commit, an act specifically 

6 intended to inflict severe physical or mental pain or 

7 suffering (other than pain or suffering incidental to 

8 lawful sanctions) upon another person within his 

9 custody or physical control for the purpose of ob10 taining information or a confession, punishment, in11 timidation, coercion, or any reason based on dis12 crimination of any kind, shall be guilty of a violation 

13 of this subsection. ‘Severe mental pain or suffering’ 

14 has the meaning provided in 18 U.S.C. 2340(2). 

15 ‘‘(B) CRUEL OR INHUMAN TREATMENT.—Any 

16 person who commits, or conspires or attempts to 

17 commit, an act intended to inflict severe physical or 

18 mental pain or suffering (other than pain or suf19 fering incidental to lawful sanctions), including se20 vere physical abuse, upon another person within his 

21 custody or physical control shall be guilty of a viola22 tion of this subsection. ‘Severe mental pain or suf23 fering’ has the meaning provided in 18 U.S.C. 

24 2340(2). 


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1 ‘‘(C) PERFORMING BIOLOGICAL EXPERI2 MENTS.—Any person who subjects, or conspires or 

3 attempts to subject, one or more persons within his 

4 custody or physical control to biological experiments 

5 without a legitimate medical purpose and in so doing 

6 endangers the body or health of such person or per7 sons shall be guilty of a violation of this subsection. 

8 ‘‘(D) MURDER.—Any person who intentionally 

9 kills, or conspires or attempts to kill, or kills wheth10 er intentionally or unintentionally in the course of 

11 committing any other offense under this section, one 

12 or more persons taking no active part in the hos13 tilities, including those placed hors de combat by 

14 sickness, wounds, detention, or any other cause, 

15 shall be guilty of a violation of this subsection. The 

16 intent required for this offense precludes its applica17 bility with regard to collateral damage or to death, 

18 damage, or injury incident to a lawful attack. 

19 ‘‘(E) MUTILATION OR MAIMING.—Any person 

20 who intentionally injures, or conspires or attempts to 

21 injure, or injures whether intentionally or uninten22 tionally in the course of committing any other of23 fense under this section, one or more persons taking 

24 no active part in the hostilities, including those 

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1 tion, or any other cause, by disfiguring the person 

2 or persons by any mutilation thereof or by perma3 nently disabling any member, limb, or organ of his 

4 body, without any legitimate medical or dental pur5 pose, shall be guilty of a violation of this subsection. 

6 The intent required for this offense precludes its ap7 plicability with regard to collateral damage or to 

8 death, damage, or injury incident to a lawful attack. 

9 ‘‘(F) INTENTIONALLY CAUSING GREAT SUF10 FERING OR SERIOUS INJURY.—Any person who in11 tentionally causes, or conspires or attempts to cause, 

12 serious, bodily injury to one or more persons taking 

13 no active part in the hostilities, including those 

14 placed hors de combat by sickness, wounds, deten15 tion, or any other cause, shall be guilty of a violation 

16 of this subsection. The intent required for this of17 fense precludes its applicability with regard to collat18 eral damage or to death, damage, or injury incident 

19 to a lawful attack. ‘Serious bodily injury’ has the 

20 meaning provided in 18 U.S.C. 113(b)(2). 

21 ‘‘(G) RAPE.—Any person who forcibly or with 

22 coercion or threat of force wrongfully invades, or 

23 conspires or attempts to invade, the body of a per24 son by penetrating, however slightly, the anal or 

25 genital opening of the victim with any part of the 


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1 body of the accused or with any foreign object shall 

2 be guilty of a violation of this subsection. 

3 ‘‘(H) SEXUAL ASSAULT OR ABUSE.—Any per4 son who forcibly or with coercion or threat of force 

5 engages, or conspires or attempts to engage, in sex6 ual contact with one or more persons, or causes, or 

7 conspires or attempts to cause, one or more persons 

8 to engage in sexual contact, shall be guilty of a vio9 lation of this subsection. For purposes of this of10 fense, ‘sexual contact’ has the meaning provided in 

11 18 U.S.C. 2246(3). 

12 ‘‘(I) TAKING HOSTAGES.—Any person who, hav13 ing knowingly seized or detained one or more per14 sons, threatens to kill, injure, or continue to detain 

15 such person or persons with the intent of compelling 

16 any nation, person other than the hostage, or group 

17 of persons to act or refrain from acting as an ex18 plicit or implicit condition for the safety or release 

19 of such person or persons, shall be guilty of a viola20 tion of this subsection. Any person who attempts to 

21 engage or conspires to engage in this offense shall 

22 also be guilty under this subsection.’’. 


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1 SEC. 8. CONFORMING AMENDMENTS. 

2 (a) Section 1004(b) of the Detainee Treatment Act 

3 of 2005 (10 U.S.C. 801 note). is amended to conform with 

4 this Act as follows— 

5 (1) by replacing ‘‘may provide’’ with ‘‘shall pro6 vide’’; 

7 (2) by adding ‘‘or investigation’’ after ‘‘criminal 

8 prosecution’’; and 

9 (3) by adding ‘‘whether before United States 

10 courts or agencies, foreign courts or agencies, or 

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

12 that subsection’’; 

13 (b) Section 1005 of the Detainee Treatment Act of 

14 2005 (10 U.S.C. 801 note) is amended to conform with 

15 this Act as follows— 

16 (1) by striking subsection (e)(3)(B) and renum17 bering subsections (e)(3)(C) and (e)(3)(D) as sub18 sections (e)(3)(B) and (e)(3)(C), respectively; 

19 (2) in subsection (e)(3)(A), by striking ‘‘pursu20 ant to Military Commission Order No. 1, August 31, 

21 2005 (or any successor military order)’’ and insert22 ing ‘‘by a military commission under chapter 47a of 

23 title 10’’; 

24 (3) in former subsection (e)(3)(C)(i), by strik25 ing ‘‘pursuant to the military order’’ and inserting 

26 ‘‘by a military commission’’; 


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1 (4) in former subsection (e)(3)(C)(ii), by strik2 ing ‘‘pursuant to such military order’’ and inserting 

3 ‘‘by such a military commission’’; 

4 (5) in former subsection (e)(3)(D)(i) by striking 

5 ‘‘specified in the military order’’ and inserting ‘‘spec6 ified for a military commission’’; 

7 (6) and in former subsection (e)(3)(C)(i), by 

8 striking ‘‘at Guantanamo Bay, Cuba’’; and 

9 (7) in former subsection (e)(2)(b)(i) by replac10 ing ‘‘the Department of Defense at Guantanamo 

11 Bay, Cuba’’ with ‘‘United States’’. 

12 (c) Section 802 of title 10, United States Code, is 

13 amended to conform with this Act by adding, ‘‘(a)(13) 

14 Lawful enemy combatants who violate the law of war.’’ 

15 (d) Section 821 of title 10, United States Code, is 

16 amended to conform with this Act by striking the phrase 

17 ‘‘by statute or the law of war’’. 

18 (e) Section 836 of title 10, United States Code, is 

19 amended to conform with this Act as follows—in sub20 section (a), by replacing ‘‘military commissions and other 

21 military tribunals’’ with ‘‘and other military tribunals (ex22 cluding military commissions)’’. 

23 SEC. 9. RETROACTIVE APPLICATION. 

24 This Act shall take effect on the date of the enact25 ment of this Act and shall apply retroactively, including 


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1 to any aspect of the detention, treatment, or trial of any 

2 person detained at any time since September 11, 2001, 

3 and to any claim or cause of action pending on or after 

4 the date of the enactment of this Act. 

5 SEC. 10. SEVERABILITY. 

6 If any provision of this Act, or the application of a 

7 provision to any person or circumstance, is held to be un8 constitutional, the remainder of this Act, and the applica9 tion of the provisions to any other person or circumstance, 

10 shall not be affected thereby. 


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Calendar No. 595 

109TH CONGRESS 

2D SESSION S. 3861 

A BILL 

To facilitate bringing to justice terrorists and other 

poses. trials by military commissions, and for other purunlawful enemy combatants through full and fair 

SEPTEMBER 8, 2006 

Read the second time and placed on the calendar 


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