II 

109TH CONGRESS 

2D SESSION S. 4060 

To amend the Military Commissions Act of 2006 to improve and enhance 

due process and appellate procedures, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 16, 2006 

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

the Committee on Armed Services 

A BILL 

To amend the Military Commissions Act of 2006 to improve 

and enhance due process and appellate procedures, 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 ‘‘Effective Terrorists 

5 Prosecution Act of 2006’’. 

6 SEC. 2. DEFINITION OF UNLAWFUL ENEMY COMBATANT. 

7 Paragraph (1) of section 948a of title 10, United 

8 States Code (as enacted by the Military Commissions Act 

9 of 2006 (Public Law 109–366)), is amended to read as 

10 follows: 


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

2 term ‘unlawful enemy combatant’ means an indi3 vidual who directly participates in hostilities as part 

4 of an armed conflict against the United States who 

5 is not a lawful enemy combatant. The term is used 

6 solely to designate individuals triable by military 

7 commission under this chapter.’’. 

8 SEC. 3. DETERMINATION OF UNLAWFUL ENEMY COMBAT9 ANT STATUS BY COMBATANT STATUS REVIEW 

10 TRIBUNAL NOT DISPOSITIVE FOR PURPOSES 

11 OF JURISDICTION OF MILITARY COMMIS12 SIONS. 

13 Section 948d of title 10, United States Code (as en14 acted by the Military Commissions Act of 2006 (Public 

15 Law 109–366)), is amended— 

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

17 (2) by redesignating subsection (d) as sub18 section (c). 

19 SEC. 4. EXCLUSION FROM TRIAL BY MILITARY COMMIS20 SION OF STATEMENTS OBTAINED BY COER21 CION. 

22 Section 948r of title 10, United States Code (as en23 acted by the Military Commissions Act of 2006 (Public 

24 Law 109–366)), is amended by striking subsections (c) 

25 and (d) and inserting the following new subsection (c): 


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

3 not be admissible in a military commission under this 

4 chapter, except against a person accused of coercion as 

5 evidence that the statement was made.’’. 

6 SEC. 5. DISCRETION OF MILITARY JUDGE TO EXCLUDE 

7 HEARSAY EVIDENCE DETERMINED TO BE UN8 RELIABLE OR LACKING IN PROBATIVE 

9 VALUE. 

10 Section 949a(b)(2)(E)(ii) of title 10, United States 

11 Code (as enacted by the Military Commissions Act of 2006 

12 (Public Law 109–366)), is amended by striking ‘‘if the 

13 party opposing the admission of the evidence demonstrates 

14 that the evidence is unreliable or lacking in probative 

15 value’’ and inserting ‘‘if the military judge determines, 

16 upon motion by counsel, that the evidence is unreliable 

17 or lacking in probative value’’. 

18 SEC. 6. DISCRETION OF MILITARY JUDGE TO TAKE CER19 TAIN ACTIONS IN EVENT THAT A SUBSTITUTE 

20 FOR CLASSIFIED EXCULPATORY EVIDENCE IS 

21 INSUFFICIENT TO PROTECT THE RIGHT OF A 

22 DEFENDANT TO A FAIR TRIAL. 

23 Section 949j(d)(1) of title 10, United States Code (as 

24 enacted by the Military Commissions Act of 2006 (Public 

25 Law 109–366)), is amended by adding at the end the folVerDate Aug 31 2005 22:40 Nov 20, 2006 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4060.IS S4060

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1 lowing: ‘‘If the military judge determines that the sub2 stitute is not sufficient to protect the right of the defend3 ant to a fair trial, the military judge may— 

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

5 ‘‘(B) dismiss the charges or specifications or 

6 both to which the information relates; or 

7 ‘‘(C) take such other actions as may be re8 quired in the interest of justice.’’. 

9 SEC. 7. REVIEW OF MILITARY COMMISSION DECISIONS BY 

10 UNITED STATES COURT OF APPEALS FOR 

11 THE ARMED FORCES RATHER THAN COURT 

12 OF MILITARY COMMISSION REVIEW. 

13 (a) REVIEW.— 

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

15 United States Code (as enacted by the Military 

16 Commissions Act of 2006 (Public Law 109–366)), is 

17 amended to read as follows: 

18 ‘‘§ 950f. Review by Court of Appeals for the Armed 

19 Forces 

20 ‘‘(a) CASES TO BE REVIEWED.—The United States 

21 Court of Appeals for the Armed Forces, in accordance 

22 with procedures prescribed under regulations of the Sec23 retary, shall review the record in each case that is referred 

24 to the Court by the convening authority under section 


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1 950c of this title with respect to any matter of law raised 

2 by the accused. 

3 ‘‘(b) SCOPE OF REVIEW.—In a case reviewed by the 

4 United States Court of Appeals for the Armed Forces 

5 under this section, the Court may only act with respect 

6 to matters of law.’’. 

7 (2) CLERICAL AMENDMENT.—The table of sec8 tions at the beginning of subchapter VI of chapter 

9 47A of such title (as so enacted) is amended by 

10 striking the item relating to section 950f and insert11 ing the following new item: 

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

12 (b) CONFORMING AMENDMENTS.— 

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

14 United States Code (as so enacted), is further 

15 amended as follows: 

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

17 Court of Military Commission Review’’ and in18 serting ‘‘the United States Court of Appeals for 

19 the Armed Forces’’. 

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

21 Court of Military Commission Review’’ each 

22 place it appears and inserting ‘‘the United 

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

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

25 Court of Military Commission Review’’ each 


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1 place it appears and inserting ‘‘the United 

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

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

4 Court of Military Commission Review’’ each 

5 place it appears and inserting ‘‘the United 

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

7 (2) UNIFORM CODE OF MILITARY JUSTICE.— 

8 Section 867a(a) of title 10, United States Code (ar9 ticle 67a(a) of the Uniform Code of Military Jus10 tice), is amended by striking ‘‘Decisions’’ and insert11 ing ‘‘Except as provided in sections 950d and 950g 

12 of this title, decisions’’. 

13 SEC. 8. IMPLEMENTATION OF TREATY OBLIGATIONS. 

14 (a) IN GENERAL.—Section 6(a) of the Military Com15 missions Act of 2006 (Public Law 109–366) is amended— 

16 (1) in paragraph (2)— 

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

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

19 preserve the capacity of the United States to 

20 prosecute nationals of enemy powers for engag21 ing in acts against members of the United 

22 States Armed Forces and United States citizens 

23 that have been prosecuted by the United States 

24 as war crimes in the past’’; and 

25 (B) by striking the second sentence; and 


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1 (2) in paragraph (3)— 

2 (A) in subparagraph (A)— 

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

4 authority for the United States to interpret 

5 the meaning and application of the Geneva 

6 Conventions and to promulgate’’ and in7 serting ‘‘the President has the authority, 

8 subject to congressional oversight and judi9 cial review, to promulgate’’; and 

10 (ii) by striking ‘‘higher standards 

11 and’’; 

12 (B) in subparagraph (B), by striking ‘‘in13 terpretations’’ and inserting ‘‘rules’’; and 

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

15 as follows: 

16 ‘‘(D) The President shall notify other par17 ties to the Geneva Conventions that the United 

18 States expects members of the United States 

19 Armed Forces and other United States citizens 

20 detained in a conflict not of an international 

21 character to be treated in a manner consistent 

22 with the standards described in subparagraph 

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

24 United States Code, as amended by subsection 

25 (b).’’. 


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1 (b) MODIFICATIONS OF WAR CRIMES OFFENSES.— 

2 (1) INCLUSION OF DENIAL OF TRIAL RIGHTS

3 AMONG OFFENSES.—Paragraph (1) of section 

4 2441(d) of title 18, United States Code (as enacted 

5 by the Military Commissions Act of 2006), is 

6 amended by adding at the end the following new 

7 subparagraph: 

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

9 of a person who intentionally denies one or 

10 more persons the right to be tried before a reg11 ularly constituted court affording all the judi12 cial guarantees which are recognized as indis13 pensable by civilized peoples as prescribed by 

14 common Article 3 of the Geneva Conventions.’’. 

15 (2) DEFINITION OF SERIOUS PHYSICAL PAIN OR

16 SUFFERING.—Clause (ii) of subparagraph ((D) of 

17 paragraph (2) of such section (as so enacted) is 

18 amended to read as follows: 

19 ‘‘(ii) serious physical pain;’’. 

20 SEC. 9. RESTORATION OF HABEAS CORPUS FOR INDIVID21 UALS DETAINED BY THE UNITED STATES. 

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

23 of title 28, United States Code, as amended by section 

24 7(a) of the Military Commissions Act of 2006 (Public Law 

25 109–366), is repealed. 


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1 (b) CONFORMING AMENDMENT.—Subsection (b) of 

2 section 7 of the Military Commissions Act of 2006 (Public 

3 Law 109–366) is repealed. 

4 SEC. 10. EXPEDITED JUDICIAL REVIEW OF MILITARY COM5 MISSIONS ACT OF 2006. 

6 Notwithstanding any other provision of law, the fol7 lowing rules shall apply to any civil action, including an 

8 action for declaratory judgment, that challenges any provi9 sion of the Military Commissions Act of 2006 (Public Law 

10 109–366), or any amendment made by that Act, on the 

11 ground that such provision or amendment violates the 

12 Constitution or the laws of the United States: 

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

14 States District Court for the District of Columbia 

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

16 judges convened pursuant to section 2284 of title 

17 28, United States Code. 

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

19 or order of the United States District Court for the 

20 District of Columbia in an action under paragraph 

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

22 appeal to the Supreme Court of the United States. 

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

24 filed within 10 days after the date on which such 

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1 tional statement with respect to any such appeal 

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

3 such judgment, decree, or order is entered. 

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

5 District Court for the District of Columbia and the 

6 Supreme Court of the United States to advance on 

7 the docket and to expedite to the greatest possible 

8 extent the disposition of any action or appeal, re9 spectively, brought under this section. 

10 SEC. 11. EFFECTIVE DATE. 

11 The amendments made by this Act shall take effect 

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

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

14 immediately after the enactment of that Act and shall 

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

16 or after such date. 

Æ 


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