II 

109TH CONGRESS 

2D SESSION S. 3929 

To authorize military commissions to bring terrorists to justice, to strengthen 

and modernize terrorist surveillance capabilities, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 22, 2006 

Mr. MCCONNELL (for himself and Mr. FRIST) introduced the following bill; 

which was read the first time pursuant to the order of September 21, 

2006, as modified on September 22, 2006 

A BILL 

To authorize military commissions to bring terrorists to justice, to strengthen and modernize terrorist surveillance 

capabilities, 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 TITLE I—MILITARY 

4 COMMISSIONS 

5 SEC. 101. SHORT TITLE. 

6 This title may be cited as the ‘‘Military Commissions 

7 Act of 2006’’. 

8 SEC. 102. FINDINGS. 

9 Congress makes the following findings: 


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1 (1) The Constitution of the United States 

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

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

4 the power ‘‘To declare War . . . To raise and support 

5 Armies . . . [and] To provide and maintain a Navy’’. 

6 (2) The military commission is the traditional 

7 tribunal for the trial of persons engaged in hostilities 

8 for violations of the law of war. 

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

10 the use of military commission by statute and recog11 nized the existence and authority of military com12 missions. 

13 (4) Military commissions have been convened 

14 both by the President and by military commanders 

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

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

17 exercise its authority under the Constitution to enact 

18 legislation authorizing and regulating the use of 

19 military commissions to try and punish violations of 

20 the law of war. 

21 SEC. 103. AUTHORIZATION FOR MILITARY COMMISSIONS. 

22 (a) IN GENERAL.—The President is authorized to es23 tablish military commissions for the trial of alien unlawful 

24 enemy combatants engaged in hostilities against the 

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


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1 offenses specifically made triable by military commission 

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

3 and chapter 47A of title 10, United States Code (as en4 acted by this Act). 

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

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

7 the President under the Constitution and laws of the 

8 United States to establish military commissions for areas 

9 declared to be under martial law or in occupied territories 

10 should circumstances so require. 

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

12 commission established pursuant to subsection (a) shall 

13 have authority to impose upon any person found guilty 

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

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

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

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

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

19 payment of a fine or restitution, or such other lawful pun20 ishment or condition of punishment as the military com21 mission shall direct. 

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

23 Defense is authorized to carry out a sentence of punish24 ment imposed by a military commission established pursuVerDate Aug 31 2005 02:16 Sep 23, 2006 Jkt 049200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929

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1 ant to subsection (a) in accordance with such procedures 

2 as the Secretary may prescribe. 

3 (e) ANNUAL REPORT ON TRIALS BY MILITARY COM4 MISSIONS.— 

5 (1) ANNUAL REPORT REQUIRED.—Not later 

6 than December 31 each year, the Secretary of De7 fense shall submit to the Committees on Armed 

8 Services of the Senate and the House of Representa9 tives a report on any trials conducted by military 

10 commissions established pursuant to subsection (a) 

11 during such year. 

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

13 shall be submitted in unclassified form, but may in14 clude a classified annex. 

15 SEC. 104. MILITARY COMMISSIONS. 

16 (a) MILITARY COMMISSIONS.— 

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

18 United States Code, is amended by inserting after 

19 chapter 47 the following new chapter: 

20 ‘‘CHAPTER 47A—MILITARY COMMISSIONS 

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

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

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

‘‘III. Pre-Trial Procedure ......................................................................... 948q.

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

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

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

‘‘VII. Punitive Matters............................................................................. 950aa. 


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1 ‘‘SUBCHAPTER I—GENERAL PROVISIONS 

‘‘Sec. 

‘‘948a. Definitions. 

‘‘948b. Military commissions generally. 

‘‘948c. Persons subject to military commissions. 

‘‘948d. Jurisdiction of military commissions. 

2 ‘‘§ 948a. Definitions 

3 ‘‘In this chapter: 

4 ‘‘(1) ALIEN.—The term ‘alien’ means an indi5 vidual who is not a citizen of the United States. 

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

7 ‘classified information’ means the following: 

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

9 been determined by the United States Govern10 ment pursuant to statute, Executive order, or 

11 regulation to require protection against unau12 thorized disclosure for reasons of national secu13 rity. 

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

15 defined in section 11 y. of the Atomic Energy 

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

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

18 ‘lawful enemy combatant’ means an individual who 

19 is— 

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

21 State party engaged in hostilities against the 

22 United States; 


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

2 corps, or organized resistance movement belong3 ing to a State party engaged in such hostilities, 

4 which are under responsible command, wear a 

5 fixed distinctive sign recognizable at a distance, 

6 carry their arms openly, and abide by the law 

7 of war; or 

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

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

11 the United States. 

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

13 term ‘unlawful enemy combatant’ means an indi14 vidual engaged in hostilities against the United 

15 States who is not a lawful enemy combatant. 

16 ‘‘§ 948b. Military commissions generally 

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

18 governing the use of military commissions to try alien un19 lawful enemy combatants engaged in hostilities against the 

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

21 offenses triable by military commission. 

22 ‘‘(b) CONSTRUCTION OF PROVISIONS.—The proce23 dures for military commissions set forth in this chapter 

24 are based upon the procedures for trial by general courts25 martial under chapter 47 of this title (the Uniform Code 


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

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

3 specifically provided therein or in this chapter, and many 

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

5 terms inapplicable to military commissions. The judicial 

6 construction and application of chapter 47 of this title is 

7 therefore not binding on military commissions established 

8 under this chapter. 

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

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

11 to trial by military commission under this chapter: 

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

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

14 including any rule of courts-martial relating to 

15 speedy trial. 

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

17 31(a), (b), and (d) of the Uniform Code of Military 

18 Justice), relating to compulsory self-incrimination. 

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

20 Code of Military Justice), relating to pretrial inves21 tigation. 

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

23 apply to trial by military commission under this chapter 

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

25 or by this chapter. 


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1 ‘‘(d) STATUS OF MILITARY COMMISSIONS UNDER

2 COMMON ARTICLE 3.—A military commission established 

3 under this chapter is a regularly constituted court, afford4 ing all the necessary ‘judicial guarantees which are recog5 nized as indispensable by civilized peoples’ for purposes 

6 of common Article 3 of the Geneva Conventions. 

7 ‘‘(e) TREATMENT OF RULINGS AND PRECEDENTS.— 

8 The findings, holdings, interpretations, and other prece9 dents of military commissions under this chapter may not 

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

11 proceeding of a court-martial convened under chapter 47 

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

13 other precedents of military commissions under this chap14 ter may not form the basis of any holding, decision, or 

15 other determination of a court-martial convened under 

16 that chapter. 

17 ‘‘(f) GENEVA CONVENTIONS NOT ESTABLISHING

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

20 chapter may invoke the Geneva Conventions as a source 

21 of rights at his trial by military commission. 

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

23 ‘‘Any alien unlawful enemy combatant engaged in 

24 hostilities or having supported hostilities against the 


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1 United States is subject to trial by military commission 

2 as set forth in this chapter. 

3 ‘‘§ 948d. Jurisdiction of military commissions 

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

5 this chapter shall have jurisdiction to try any offense made 

6 punishable by this chapter, sections 904 and 906 of this 

7 title (articles 104 and 106 of the Uniform Code of Military 

8 Justice), or the law of war when committed by an alien 

9 unlawful enemy combatant before, on, or after September 

10 11, 2001. 

11 ‘‘(b) LAWFUL ENEMY COMBATANTS.—Military com12 missions under this chapter shall not have jurisdiction 

13 over lawful enemy combatants. Lawful enemy combatants 

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

15 this title. Courts-martial established under that chapter 

16 shall have jurisdiction to try a lawful enemy combatant 

17 for any offense made punishable under this chapter. 

18 ‘‘(c) PUNISHMENTS.—A miliary commission under 

19 this chapter may, under such limitations as the President 

20 may prescribe, adjudge any punishment not forbidden by 

21 this chapter, including the penalty of death when author22 ized under this chapter, chapter 47 of this title, or the 

23 law of war. 


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1 ‘‘SUBCHAPTER II—COMPOSITION OF MILITARY 

2 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. 

3 ‘‘§ 948h. Who may convene military commissions 

4 ‘‘Military commissions under this chapter may be 

5 convened by the Secretary of Defense or by any officer 

6 or official of the United States designated by the Secretary 

7 for that purpose. 

8 ‘‘§ 948i. Who may serve on military commissions 

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

10 armed forces on active duty is eligible to serve on a mili11 tary commission under this chapter, including commis12 sioned officers of the reserve components of the armed 

13 forces on active duty, commissioned officers of the Na14 tional Guard on active duty in Federal service, or retired 

15 commissioned officers recalled to active duty. 

16 ‘‘(b) DETAIL OF MEMBERS.—When convening a mili17 tary commission under this chapter, the convening author18 ity shall detail as members thereof such members of the 

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

20 opinion of the convening authority, are best qualified for 

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


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1 length of service, and judicial temperament. No member 

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

3 military commission when such member is the accuser or 

4 a witness for the prosecution or has acted as an investi5 gator or counsel in the same case. 

6 ‘‘(c) EXCUSE OF MEMBERS.—Before a military com7 mission under this chapter is assembled for the trial of 

8 a case, the convening authority may excuse a member 

9 from participating in the case. 

10 ‘‘§ 948j. Military judge of a military commission 

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

12 shall be detailed to each military commission under this 

13 chapter. The Secretary of Defense shall prescribe regula14 tions providing for the manner in which military judges 

15 are so detailed to military commissions. The military judge 

16 shall preside over each military commission to which he 

17 has been detailed. 

18 ‘‘(b) ELIGIBILITY.—A military judge shall be a com19 missioned officer of the armed forces who is a member 

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

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

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

23 26 of the Uniform Code of Military Justice) as a military 

24 judge in general courts-martial by the Judge Advocate 


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1 General of the armed force of which such military judge 

2 is a member. 

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

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

5 military commission under this chapter if he is the accuser 

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

7 the same case. 

8 ‘‘(d) CONSULTATION WITH MEMBERS; INELIGI9 BILITY TO VOTE.—A military judge detailed to a military 

10 commission under this chapter may not consult with the 

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

12 otherwise provided in section 949d of this title), trial coun13 sel, and defense counsel, nor may he vote with the mem14 bers. 

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

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

17 a military commission under this chapter may perform 

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

19 approval of the Judge Advocate General of the armed 

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

21 of such Judge Advocate General. 

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

23 CONVENING AUTHORITY.—The convening authority of a 

24 military commission under this chapter shall not prepare 

25 or review any report concerning the effectiveness, fitness, 


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1 or efficiency of a military judge detailed to the military 

2 commission which relates to his performance of duty as 

3 a military judge on the military commission. 

4 ‘‘§ 948k. Detail of trial counsel and defense counsel 

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

6 counsel and military defense counsel shall be detailed for 

7 each military commission under this chapter. 

8 ‘‘(2) Assistant trial counsel and assistant and asso9 ciate defense counsel may be detailed for a military com10 mission under this chapter. 

11 ‘‘(3) Military defense counsel for a military commis12 sion under this chapter shall be detailed as soon as prac13 ticable after the swearing of charges. 

14 ‘‘(4) The Secretary of Defense shall prescribe regula15 tions providing for the manner in which trial counsel and 

16 military defense counsel are detailed for military commis17 sions under this chapter and for the persons who are au18 thorized to detail such counsel for such military commis19 sions. 

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

21 trial counsel detailed for a military commission under this 

22 chapter must be— 

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

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

25 Code of Military Justice)) who is— 


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

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

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

4 ‘‘(B) certified as competent to perform du5 ties as trial counsel before general courts-mar6 tial by the Judge Advocate General of the 

7 armed force of which he is a member; or 

8 ‘‘(2) a civilian who is— 

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

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

11 ‘‘(B) otherwise qualified to practice before 

12 the military commission pursuant to regulations 

13 prescribed by the Secretary of Defense. 

14 ‘‘(c) MILITARY DEFENSE COUNSEL.—Subject to sub15 section (e), military defense counsel detailed for a military 

16 commission under this chapter must be a judge advocate 

17 (as so defined) who is— 

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

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

20 highest court of a State; and 

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

22 defense counsel before general courts-martial by the 

23 Judge Advocate General of the armed force of which 

24 he is a member. 


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1 ‘‘(d) CHIEF PROSECUTOR; CHIEF DEFENSE COUN2 SEL.—(1) The Chief Prosecutor in a military commission 

3 under this chapter shall meet the requirements set forth 

4 in subsection (b)(1). 

5 ‘‘(2) The Chief Defense Counsel in a military com6 mission under this chapter shall meet the requirements set 

7 forth in subsection (c)(1). 

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

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

10 or member of a military commission under this chapter 

11 in any case may act later as trial counsel or military de12 fense counsel in the same case. No person who has acted 

13 for the prosecution before a military commission under 

14 this chapter may act later in the same case for the de15 fense, nor may any person who has acted for the defense 

16 before a military commission under this chapter act later 

17 in the same case for the prosecution. 

18 ‘‘§ 948l. Detail or employment of reporters and inter19 preters 

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

21 as the Secretary of Defense may prescribe, the convening 

22 authority of a military commission under this chapter 

23 shall detail to or employ for the military commission quali24 fied court reporters, who shall prepare a verbatim record 


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1 of the proceedings of and testimony taken before the mili2 tary commission. 

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

4 Secretary of Defense may prescribe, the convening author5 ity of a military commission under this chapter may detail 

6 to or employ for the military commission interpreters who 

7 shall interpret for the military commission, and, as nec8 essary, for trial counsel and defense counsel for the mili9 tary commission, and for the accused. 

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

11 military commission under this chapter shall be under the 

12 control of the convening authority of the military commis13 sion, who shall also be responsible for preparing the record 

14 of the proceedings of the military commission. 

15 ‘‘§ 948m. Number of members; excuse of members; ab16 sent and additional members 

17 ‘‘(a) NUMBER OF MEMBERS.—(1) A military com18 mission under this chapter shall, except as provided in 

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

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

21 commission under this chapter may be sentenced to a pen22 alty of death, the military commission shall have the num23 ber of members prescribed by section 949m(c) of this title. 

24 ‘‘(b) EXCUSE OF MEMBERS.—No member of a mili25 tary commission under this chapter may be absent or exVerDate Aug 31 2005 02:16 Sep 23, 2006 Jkt 049200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929

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1 cused after the military commission has been assembled 

2 for the trial of a case unless excused— 

3 ‘‘(1) as a result of challenge; 

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

5 or other good cause; or 

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

7 good cause. 

8 ‘‘(c) ABSENT AND ADDITIONAL MEMBERS.—When9 ever a military commission under this chapter is reduced 

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

11 the trial may not proceed unless the convening authority 

12 details new members sufficient to provide not less than 

13 such number. The trial may proceed with the new mem14 bers present after the recorded evidence previously intro15 duced before the members has been read to the military 

16 commission in the presence of the military judge, the ac17 cused (except as provided in section 949d of this title), 

18 and counsel for both sides. 

19 ‘‘SUBCHAPTER III—PRE-TRIAL PROCEDURE 

‘‘Sec. 

‘‘948q. Charges and specifications. 

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

or other methods of coercion. 

‘‘948s. Service of charges. 

20 ‘‘§ 948q. Charges and specifications 

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

22 specifications against an accused in a military commission 

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


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1 chapter 47 of this title under oath before a commissioned 

2 officer of the armed forces authorized to administer oaths 

3 and shall state— 

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

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

6 and 

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

8 knowledge and belief. 

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

10 the charges and specifications in accordance with sub11 section (a), the accused shall be informed of the charges 

12 and specifications against him as soon as practicable. 

13 ‘‘§ 948r. Compulsory self-incrimination prohibited; 

14 statements obtained by torture or other 

15 methods of coercion 

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

17 testify against himself at a proceeding of a military com18 mission under this chapter. 

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

20 statement obtained by use of torture shall not be admis21 sible in a military commission under this chapter, except 

22 against a person accused of torture as evidence the state23 ment was made. 

24 ‘‘(c) STATEMENTS OBTAINED BEFORE ENACTMENT

25 OF DETAINEE TREATMENT ACT OF 2005.—A statement 


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1 obtained before December 30, 2005 (the date of the enact2 ment of the Detainee Treatment Act of 2005), in which 

3 the degree of coercion is disputed may be admitted only 

4 if the military judge finds that— 

5 ‘‘(1) the totality of the circumstances renders it 

6 reliable and possessing sufficient probative value; 

7 and 

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

9 served by admission of the statement into evidence. 

10 ‘‘(d) STATEMENTS OBTAINED AFTER ENACTMENT

11 OF DETAINEE TREATMENT ACT OF 2005.—A statement 

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

13 enactment of the Detainee Treatment Act of 2005), in 

14 which the degree of coercion is disputed may be admitted 

15 only if the military judge finds that— 

16 ‘‘(1) the totality of the circumstances renders it 

17 reliable and possessing sufficient probative value; 

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

19 served by admission of the statement into evidence; 

20 and 

21 ‘‘(3) the interrogation methods used to obtain 

22 the statement do not violate the cruel, unusual, or 

23 inhumane treatment or punishment prohibited by 

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

25 United States Constitution. 


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1 ‘‘§ 948s. Service of charges 

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

3 commission under this chapter shall cause to be served 

4 upon the accused and military defense counsel a copy of 

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

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

9 ‘‘SUBCHAPTER IV—TRIAL PROCEDURE 

‘‘Sec. 

‘‘949a. Rules. 

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

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

‘‘949d. Sessions. 

‘‘949e. Continuances. 

‘‘949f. Challenges. 

‘‘949g. Oaths. 

‘‘949h. Former jeopardy. 

‘‘949i. Pleas of the accused. 

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

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

‘‘949l. Voting and rulings. 

‘‘949m. Number of votes required. 

‘‘949n. Military commission to announce action. 

‘‘949o. Record of trial. 

10 ‘‘§ 949a. Rules 

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

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

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

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


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

2 by military commission under this chapter. 

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

4 consultation with the Attorney General, may make such 

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

7 evidence otherwise applicable in general courts-martial as 

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

11 ‘‘(2) Notwithstanding any exceptions authorized by 

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

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

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

16 considered by the military commission on the issue 

17 of guilt or innocence and for sentencing. 

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

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

21 of this title. 

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

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

24 knowingly and competently waives the assistance of 

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


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

2 reliable or probative. 

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

5 by— 

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

8 or 

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

10 of time, or needless presentation of cumulative 

11 evidence. 

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

13 trials by military commission under this chapter from the 

14 procedures and rules otherwise applicable in general 

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

16 following: 

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

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

20 pursuant to a search warrant or authorization. 

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

23 military commission on grounds of alleged coercion 

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1 dence complies with the provisions of section 948r of 

2 this title. 

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

4 long as— 

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

8 be; and 

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

13 evidence. 

14 ‘‘(D)(i) Except as provided in clause (ii), hear15 say evidence not otherwise admissible under the 

16 rules of evidence applicable in trial by general 

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

18 commission if the proponent of the evidence makes 

19 known to the adverse party, sufficiently in advance 

20 to provide the adverse party with a fair opportunity 

21 to meet the evidence, the intention of the proponent 

22 to offer the evidence, and the particulars of the evi23 dence (including information on the general cir24 cumstances under which the evidence was obtained). 

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1 ject to the requirements and limitations applicable to 

2 the disclosure of classified information in section 

3 949j(b) of this title. 

4 ‘‘(ii) Hearsay evidence not otherwise admissible 

5 under the rules of evidence applicable in trial by 

6 general courts-martial shall not be admitted in a 

7 trial by military commission if the party opposing 

8 the admission of the evidence demonstrates that the 

9 evidence is unreliable or lacking in probative value. 

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

11 this chapter who exercises the right to self-representation 

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

13 the conduct of the defense to the rules of evidence, proce14 dure, and decorum applicable to trials by military commis15 sion. 

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

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

18 total revocation by the military judge of the right of self19 representation under paragraph (2)(D). In such case, the 

20 detailed defense counsel of the accused or an appropriately 

21 authorized civilian counsel shall perform the functions nec22 essary for the defense. 

23 ‘‘(c) DELEGATION OF AUTHORITY TO PRESCRIBE

24 REGULATIONS.—The Secretary of Defense may delegate 


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1 the authority of the Secretary to prescribe regulations 

2 under this chapter. 

3 ‘‘§ 949b. Unlawfully influencing action of military 

4 commission 

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

6 military commission under this chapter may censure, rep7 rimand, or admonish the military commission, or any 

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

9 to the findings or sentence adjudged by the military com10 mission, or with respect to any other exercises of its or 

11 their functions in the conduct of the proceedings. 

12 ‘‘(2) No person may attempt to coerce or, by any un13 authorized means, influence— 

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

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

16 findings or sentence in any case; 

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

18 reviewing authority with respect to their judicial 

19 acts; or 

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

21 trial counsel or defense counsel. 

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

23 with respect to— 

24 ‘‘(A) general instructional or informational 

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1 signed solely for the purpose of instructing members 

2 of a command in the substantive and procedural as3 pects of military commissions; or 

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

5 proceedings by a military judge or counsel. 

6 ‘‘(b) PROHIBITION ON CONSIDERATION OF ACTIONS

7 ON COMMISSION IN EVALUATION OF FITNESS.—In the 

8 preparation of an effectiveness, fitness, or efficiency report 

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

10 for the purpose of determining whether a commissioned 

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

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

13 such officer or whether any such officer should be retained 

14 on active duty, no person may— 

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

16 duty of any member of a military commission under 

17 this chapter; or 

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

19 to any commissioned officer because of the zeal with 

20 which such officer, in acting as counsel, represented 

21 any accused before a military commission under this 

22 chapter. 


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1 ‘‘§ 949c. Duties of trial counsel and defense counsel 

2 ‘‘(a) TRIAL COUNSEL.—The trial counsel of a mili3 tary commission under this chapter shall prosecute in the 

4 name of the United States. 

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

6 represented in his defense before a military commission 

7 under this chapter as provided in this subsection. 

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

9 counsel detailed under section 948k of this title. 

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

11 counsel if retained by the accused, provided that such civil12 ian counsel— 

13 ‘‘(A) is a United States citizen; 

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

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

16 before a Federal court; 

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

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

19 competent governmental authority for relevant mis20 conduct; 

21 ‘‘(D) has been determined to be eligible for ac22 cess to information classified at the level Secret or 

23 higher; and 

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

25 with all applicable regulations or instructions for 


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1 counsel, including any rules of court for conduct 

2 during the proceedings. 

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

4 military counsel detailed shall act as associate counsel. 

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

6 more than one military counsel. However, the person au7 thorized under regulations prescribed under section 948k 

8 of this title to detail counsel, in such person’s sole discre9 tion, may detail additional military counsel to represent 

10 the accused. 

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

12 for the prosecution who testifies before a military commis13 sion under this chapter. 

14 ‘‘§ 949d. Sessions 

15 ‘‘(a) SESSIONS WITHOUT PRESENCE OF MEM16 BERS.—(1) At any time after the service of charges which 

17 have been referred for trial by military commission under 

18 this chapter, the military judge may call the military com19 mission into session without the presence of the members 

20 for the purpose of— 

21 ‘‘(A) hearing and determining motions raising 

22 defenses or objections which are capable of deter23 mination without trial of the issues raised by a plea 

24 of not guilty; 


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

2 may be ruled upon by the military judge under this 

3 chapter, whether or not the matter is appropriate for 

4 later consideration or decision by the members; 

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

6 the Secretary of Defense, receiving the pleas of the 

7 accused; and 

8 ‘‘(D) performing any other procedural function 

9 which may be performed by the military judge under 

10 this chapter or under rules prescribed pursuant to 

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

12 the presence of the members. 

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

14 (d), any proceedings under paragraph (1) shall be con15 ducted in the presence of the accused, defense counsel, and 

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

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

18 the members of a military commission under this chapter 

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

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

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

22 of a military commission under this chapter. 

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

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


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1 upon making a specific finding that such closure is nec2 essary to— 

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

4 could reasonably be expected to cause damage to the 

5 national security, including intelligence or law en6 forcement sources, methods, or activities; or 

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

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

9 upon a presentation, including a presentation ex parte or 

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

11 ‘‘(d) EXCLUSION OF ACCUSED FROM CERTAIN PRO12 CEEDINGS.—The military judge may exclude the accused 

13 from any portion of a proceeding upon a determination 

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

15 persists in conduct that justifies exclusion from the court16 room— 

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

18 or 

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

20 the accused. 

21 ‘‘(e) PROTECTION OF CLASSIFIED INFORMATION.— 

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

23 Classified information shall be protected and is privi24 leged from disclosure if disclosure would be detri25 mental to the national security. This rule applies to 


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1 all stages of the proceedings of military commissions 

2 under this chapter. 

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

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

5 military department or government agency con6 cerned based on a finding by the head of that de7 partment or agency that— 

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

9 and 

10 ‘‘(ii) disclosure would be detrimental to the 

11 national security. 

12 ‘‘(C) A person who may claim the privilege re13 ferred to in subparagraph (A) may authorize a rep14 resentative, witness, or trial counsel to claim the 

15 privilege and make the finding described in subpara16 graph (B) on behalf of such person. The authority 

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

18 so is presumed in the absence of evidence to the con19 trary. 

20 ‘‘(2) INTRODUCTION OF CLASSIFIED INFORMA21 TION.— 

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

23 protect classified information from disclosure, 

24 the military judge, upon motion of trial counsel, 

25 shall authorize, to the extent practicable— 


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

2 classified information from documents to 

3 be introduced as evidence before the mili4 tary commission; 

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

6 summary of the information for such clas7 sified documents; or 

8 ‘‘(iii) the substitution of a statement 

9 of relevant facts that the classified infor10 mation would tend to prove. 

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

12 OR ACTIVITIES.—The military judge, upon mo13 tion of trial counsel, shall permit trial counsel 

14 to introduce otherwise admissible evidence be15 fore the military commission, while protecting 

16 from disclosure the sources, methods, or activi17 ties by which the United States acquired the 

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

19 sources, methods, or activities by which the 

20 United States acquired the evidence are classi21 fied, and (ii) the evidence is reliable. The mili22 tary judge may require trial counsel to present 

23 to the military commission and the defense, to 

24 the extent practicable and consistent with na25 tional security, an unclassified summary of the 


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1 sources, methods, or activities by which the 

2 United States acquired the evidence. 

3 ‘‘(C) ASSERTION OF NATIONAL SECURITY

4 PRIVILEGE AT TRIAL.—During the examination 

5 of any witness, trial counsel may object to any 

6 question, line of inquiry, or motion to admit evi7 dence that would require the disclosure of clas8 sified information. Following such an objection, 

9 the military judge shall take suitable action to 

10 safeguard such classified information. Such ac11 tion may include the review of trial counsel’s 

12 claim of privilege by the military judge in cam13 era and on an ex parte basis, and the delay of 

14 proceedings to permit trial counsel to consult 

15 with the department or agency concerned as to 

16 whether the national security privilege should 

17 be asserted. 

18 ‘‘(3) CONSIDERATION OF PRIVILEGE AND RE19 LATED MATERIALS.—A claim of privilege under this 

20 subsection, and any materials submitted in support 

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

22 considered by the military judge in camera and shall 

23 not be disclosed to the accused. 

24 ‘‘(4) ADDITIONAL REGULATIONS.—The Sec25 retary of Defense may prescribe additional regulaVerDate Aug 31 2005 02:16 Sep 23, 2006 Jkt 049200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929

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1 tions, consistent with this subsection, for the use 

2 and protection of classified information during pro3 ceedings of military commissions under this chapter. 

4 A report on any regulations so prescribed, or modi5 fied, shall be submitted to the Committees on Armed 

6 Services of the Senate and the House of Representa7 tives not later than 60 days before the date on which 

8 such regulations or modifications, as the case may 

9 be, go into effect. 

10 ‘‘§ 949e. Continuances 

11 ‘‘The military judge in a military commission under 

12 this chapter may, for reasonable cause, grant a continu13 ance to any party for such time, and as often, as may 

14 appear to be just. 

15 ‘‘§ 949f. Challenges 

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

17 judge and members of a military commission under this 

18 chapter may be challenged by the accused or trial counsel 

19 for cause stated to the military commission. The military 

20 judge shall determine the relevance and validity of chal21 lenges for cause, and may not receive a challenge to more 

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

23 shall ordinarily be presented and decided before those by 

24 the accused are offered. 


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

2 trial counsel are each entitled to one peremptory challenge, 

3 but the military judge may not be challenged except for 

4 cause. 

5 ‘‘(c) CHALLENGES AGAINST ADDITIONAL MEM6 BERS.—Whenever additional members are detailed to a 

7 military commission under this chapter, and after any 

8 challenges for cause against such additional members are 

9 presented and decided, the accused and trial counsel are 

10 each entitled to one peremptory challenge against mem11 bers not previously subject to peremptory challenge. 

12 ‘‘§ 949g. Oaths 

13 ‘‘(a) IN GENERAL.—(1) Before performing their re14 spective duties in a military commission under this chap15 ter, military judges, members, trial counsel, defense coun16 sel, reporters, and interpreters shall take an oath to per17 form their duties faithfully. 

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

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

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

21 all cases in which duties are to be performed or for a par22 ticular case, shall be as provided in regulations prescribed 

23 by the Secretary of Defense. The regulations may provide 

24 that— 


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

2 military judge, trial counsel, or defense counsel may 

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

4 person certified to be qualified or competent for the 

5 duty; and 

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

7 not again be taken at the time the judge advocate 

8 or other person is detailed to that duty. 

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

10 commission under this chapter shall be examined on oath. 

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

12 ‘oath’ includes an affirmation. 

13 ‘‘§ 949h. Former jeopardy 

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

16 a second time for the same offense. 

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

18 accused has been found guilty by military commission 

19 under this chapter upon any charge or specification is a 

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

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

22 completed. 

23 ‘‘§ 949i. Pleas of the accused 

24 ‘‘(a) PLEA OF NOT GUILTY.—If an accused in a mili25 tary commission under this chapter after a plea of guilty 


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

2 that the accused has entered the plea of guilty through 

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

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

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

6 proceed as though the accused had pleaded not guilty. 

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

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

9 of guilty has been made by the accused in a military com10 mission under this chapter and accepted by the military 

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

12 may be entered immediately without a vote. The finding 

13 shall constitute the finding of the military commission un14 less the plea of guilty is withdrawn prior to announcement 

15 of the sentence, in which event the proceedings shall con16 tinue as though the accused had pleaded not guilty. 

17 ‘‘§ 949j. Opportunity to obtain witnesses and other 

18 evidence 

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

20 commission under this chapter shall have a reasonable op21 portunity to obtain witnesses and other evidence as pro22 vided in regulations prescribed by the Secretary of De23 fense. 


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

2 this chapter to compel witnesses to appear and testify and 

3 to compel the production of other evidence— 

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

5 United States having criminal jurisdiction may law6 fully issue; and 

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

8 States shall have jurisdiction thereof. 

9 ‘‘(b) PROTECTION OF CLASSIFIED INFORMATION.— 

10 (1) With respect to the discovery obligations of trial coun11 sel under this section, the military judge, upon motion of 

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

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

14 information from documents to be made available to 

15 the accused; 

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

17 of the information for such classified documents; or 

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

19 relevant facts that the classified information would 

20 tend prove. 

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

22 shall authorize trial counsel, in the course of complying 

23 with discovery obligations under this section, to protect 

24 from disclosure the sources, methods, or activities by 

25 which the United States acquired evidence if the military 


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

2 which the United States acquired such evidence are classi3 fied. The military judge may require trial counsel to pro4 vide, to the extent practicable, an unclassified summary 

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

6 States acquired such evidence. 

7 ‘‘(c) EXCULPATORY EVIDENCE.—(1) As soon as 

8 practicable, trial counsel shall disclose to the defense the 

9 existence of any evidence known to trial counsel that rea10 sonably tends to exculpate the accused. Where exculpatory 

11 evidence is classified, the accused shall be provided with 

12 an adequate substitute in accordance with the procedures 

13 under subsection (b). 

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

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

16 exculpatory evidence that the prosecution would be re17 quired to disclose in a trial by courts-martial under chap18 ter 47 of this title. 

19 ‘‘§ 949k. Defense of lack of mental responsibility 

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

21 defense in a trial by military commission under this chap22 ter that, at the time of the commission of the acts consti23 tuting the offense, the accused, as a result of a severe 

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1 ture and quality or the wrongfulness of the acts. Mental 

2 disease or defect does not otherwise constitute a defense. 

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

4 commission under this chapter has the burden of proving 

5 the defense of lack of mental responsibility by clear and 

6 convincing evidence. 

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

10 a military commission under this chapter, the military 

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

12 of mental responsibility under this section and shall 

13 charge the members to find the accused— 

14 ‘‘(1) guilty; 

15 ‘‘(2) not guilty; or 

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

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

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

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

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

22 taken determines that the defense of lack of mental re23 sponsibility has been established. 


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1 ‘‘§ 949l. Voting and rulings 

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

3 by members of a military commission under this chapter 

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

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

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

9 all interlocutory questions arising during the proceedings. 

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

11 question of law or an interlocutory question (other than 

12 the factual issue of mental responsibility of the accused) 

13 is conclusive and constitutes the ruling of the military 

14 commission. However, a military judge may change his 

15 ruling at any time during the trial. 

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

17 is taken of the findings of a military commission under 

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

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

20 elements of the offense and charge the members— 

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

22 innocent until his guilt is established by legal and 

23 competent evidence beyond a reasonable doubt; 

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

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


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1 the doubt must be resolved in favor of the accused 

2 and he must be acquitted; 

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

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

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

7 guilt of the accused beyond a reasonable doubt is 

8 upon the United States. 

9 ‘‘§ 949m. Number of votes required 

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

11 a military commission under this chapter of any offense, 

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

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

14 time the vote is taken. 

15 ‘‘(b) SENTENCES.—(1) Except as provided in para16 graphs (2) and (3), sentences shall be determined by a 

17 military commission by the concurrence of two-thirds of 

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

19 ‘‘(2) No person may be sentenced to death by a mili20 tary commission, except insofar as— 

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

22 authorized under this chapter, chapter 47 of this 

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

24 accused has been found guilty; 


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

2 of death by filing an appropriate notice in advance 

3 of trial; 

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

5 by the concurrence of all the members present at the 

6 time the vote is taken; and 

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

8 was taken concurred in the sentence of death. 

9 ‘‘(3) No person may be sentenced to life imprison10 ment, or to confinement for more than 10 years, by a mili11 tary commission under this chapter except by the concur12 rence of three-fourths of the members present at the time 

13 the vote is taken. 

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

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

17 number of members of the military commission under this 

18 chapter shall be not less than 12 members. 

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

20 12 members are not reasonably available for a military 

21 commission because of physical conditions or military ex22 igencies, the convening authority shall specify a lesser 

23 number of members for the military commission (but not 

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

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


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

2 convening authority shall make a detailed written state3 ment, to be appended to the record, stating why a greater 

4 number of members were not reasonably available. 

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

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

8 as determined. 

9 ‘‘§ 949o. Record of trial 

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

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

18 is unable to authenticate it by reason of his death, dis19 ability, or absence. Where appropriate, and as provided 

20 in regulations prescribed by the Secretary of Defense, the 

21 record of a military commission under this chapter may 

22 contain a classified annex. 

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

24 record of the proceedings and testimony shall be prepared 

25 in every military commission under this chapter. 


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

2 the record of the proceedings of the military commission 

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

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

6 redacted version of the record consistent with the require7 ments of section 949d(e) of this title. Defense counsel 

8 shall have access to the unredacted record, as provided 

9 in regulations prescribed by the Secretary of Defense. 

10 ‘‘SUBCHAPTER V—SENTENCES 

‘‘Sec. 

‘‘949s. Cruel or unusual punishments prohibited. 

‘‘949t. Maximum limits. 

‘‘949u. Execution of confinement. 

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

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

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

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

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

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

18 is prohibited under this chapter. 

19 ‘‘§ 949t. Maximum limits 

20 ‘‘The punishment which a military commission under 

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

22 limits as the President or Secretary of Defense may pre23 scribe for that offense. 


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1 ‘‘§ 949u. Execution of confinement 

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

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

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

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

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

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

11 ‘‘(b) TREATMENT DURING CONFINEMENT BY OTHER

12 THAN THE ARMED FORCES.—Persons confined under 

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

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

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

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

18 situated. 

19 ‘‘SUBCHAPTER VI—POST-TRIAL PROCEDURE 

20 AND REVIEW OF MILITARY COMMISSIONS 

‘‘Sec. 

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

‘‘950b. Review by the convening authority. 

‘‘950c. Waiver or withdrawal of appeal. 

‘‘950d. Appeal by the United States. 

‘‘950e. Rehearings. 

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

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

‘‘950h. Appellate counsel 


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

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

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

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

3 military commission under this chapter may not be held 

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

5 materially prejudices the substantial rights of the accused. 

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

7 authority with the power to approve or affirm a finding 

8 of guilty by a military commission under this chapter may 

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

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

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

14 military commission under this chapter shall be reported 

15 in writing promptly to the convening authority after the 

16 announcement of the sentence. 

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

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

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

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


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1 within 20 days after accused has been give an authenti2 cated record of trial under section 949o(c) of this title. 

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

6 extend the applicable period under subparagraph (A) for 

7 not more than an additional 20 days. 

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

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

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

12 within which the accused may make a submittal under this 

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

15 authority. 

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

17 authority under this subsection to modify the findings and 

18 sentence of a military commission under this chapter is 

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

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

22 action on the findings of a military commission under this 

23 chapter. If the convening authority takes action on the 

24 findings, the convening authority may, in his sole discre25 tion, only— 


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1 ‘‘(A) dismiss any charge or specification by set2 ting aside a finding of guilty thereto; or 

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

4 a finding of guilty to an offense that is a lesser in5 cluded offense of the offense stated in the charge. 

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

7 the sentence of a military commission under this chapter. 

8 ‘‘(B) Subject to regulations prescribed by the Sec9 retary of Defense, action under this paragraph may be 

10 taken only after consideration of any matters submitted 

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

12 submitting such matters expires, whichever is earlier. 

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

16 in part. The convening authority may not increase a sen17 tence beyond that which is found by the military commis18 sion. 

19 ‘‘(4) The convening authority shall serve on the ac20 cused or on defense counsel notice of any action taken by 

21 the convening authority under this subsection. 

22 ‘‘(d) ORDER OF REVISION OR REHEARING.—(1) Sub23 ject to paragraphs (2) and (3), the convening authority 

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


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1 sole discretion, order a proceeding in revision or a rehear2 ing. 

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

4 proceeding in revision may be ordered by the convening 

5 authority if— 

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

7 the record; or 

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

9 action by the military commission with respect to 

10 the findings or sentence that can be rectified without 

11 material prejudice to the substantial rights of the 

12 accused. 

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

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

16 not guilty; 

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

18 charge, unless there has been a finding of guilty 

19 under a specification laid under that charge, which 

20 sufficiently alleges a violation; or 

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

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

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1 ings and sentence and states the reasons for disapproval 

2 of the findings. If the convening authority disapproves the 

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

4 convening authority shall dismiss the charges. A rehearing 

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

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

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

9 convening authority disapproves the sentence. 

10 ‘‘§ 950c. Waiver or withdrawal of appeal 

11 ‘‘(a) WAIVER OF RIGHT OF REVIEW.—(1) An ac12 cused may file with the convening authority a statement 

13 expressly waiving the right of the accused to appellate re14 view by the Court of Military Commission Review under 

15 section 950f of this title of the final decision of the mili16 tary commission under this chapter. 

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

18 by both the accused and a defense counsel. 

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

20 at all, within 10 days after notice of the action is served 

21 on the accused or on defense counsel under section 

22 950b(c)(4) of this title. The convening authority, for good 

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

24 than 30 days. 


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

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

3 title extends to death, the accused may withdraw an ap4 peal at any time. 

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

6 waiver of the right to appellate review or the withdrawal 

7 of an appeal under this section bars review under section 

8 950f of this title. 

9 ‘‘§ 950d. Appeal by the United States 

10 ‘‘(a) INTERLOCUTORY APPEAL.—(1) Except as pro11 vided in paragraph (2), in a trial by military commission 

12 under this chapter, the United States may take an inter13 locutory appeal to the Court of Military Commission Re14 view under section 950f of this title of any order or ruling 

15 of the military judge that— 

16 ‘‘(A) terminates proceedings of the military 

17 commission with respect to a charge or specification; 

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

19 of a fact material in the proceeding; or 

20 ‘‘(C) relates to a matter under subsection (c), 

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

22 ‘‘(2) The United States may not appeal under para23 graph (1) an order or ruling that is, or amounts to, a find24 ing of not guilty by the military commission with respect 

25 to a charge or specification. 


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

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

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

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

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

6 forwarded, by means specified in regulations prescribed 

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

8 Commission Review. In ruling on an appeal under this sec9 tion, the Court may act only with respect to matters of 

10 law. 

11 ‘‘§ 950e. Rehearings 

12 ‘‘(a) COMPOSITION OF MILITARY COMMISSION FOR

13 REHEARING.—Each rehearing under this chapter shall 

14 take place before a military commission under this chapter 

15 composed of members who were not members of the mili16 tary commission which first heard the case. 

17 ‘‘(b) SCOPE OF REHEARING.—(1) Upon a rehear18 ing— 

19 ‘‘(A) the accused may not be tried for any of20 fense of which he was found not guilty by the first 

21 military commission; and 

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

23 original sentence may be imposed unless— 


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

2 of guilty of an offense not considered upon the 

3 merits in the original proceedings; or 

4 ‘‘(ii) the sentence prescribed for the of5 fense is mandatory. 

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

7 the first military commission was in accordance with a 

8 pretrial agreement and the accused at the rehearing 

9 changes his plea with respect to the charges or specifica10 tions upon which the pretrial agreement was based, or oth11 erwise does not comply with pretrial agreement, the sen12 tence as to those charges or specifications may include any 

13 punishment not in excess of that lawfully adjudged at the 

14 first military commission. 

15 ‘‘§ 950f. Review by Court of Military Commission Re16 view 

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

18 shall establish a Court of Military Commission Review 

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

20 such panel shall be composed of not less than three appel21 late military judges. For the purpose of reviewing military 

22 commission decisions under this chapter, the Court may 

23 sit in panels or as a whole in accordance with rules pre24 scribed by the Secretary. 


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

2 shall assign appellate military judges to a Court of Mili3 tary Commission Review. Each appellate military judge 

4 shall meet the qualifications for military judges prescribed 

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

6 comparable qualifications. No person may serve as an ap7 pellate military judge in any case in which that person 

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

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

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

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

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

13 accordance with procedures prescribed under regulations 

14 of the Secretary. 

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

16 Court of Military Commission Review under this section, 

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

18 ‘‘§ 950g. Review by the United States Court of Ap19 peals for the District of Columbia Circuit 

20 and the Supreme Court 

21 ‘‘(a) REVIEW BY UNITED STATES COURT OF AP22 PEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.—(1) 

23 Subject to the provisions of this subsection, the United 

24 States Court of Appeals for the District of Columbia Cir25 cuit shall have exclusive jurisdiction to determine the final 


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1 validity of any judgment rendered by a military commis2 sion under this chapter. 

3 ‘‘(2) The United States Court of Appeals for the Dis4 trict of Columbia Circuit may not determine the final va5 lidity of a judgment of a military commission under this 

6 subsection until all other appeals from the judgment under 

7 this chapter have been waived or exhausted. 

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

9 United States Court of Appeals for the District of Colum10 bia Circuit of the final validity of the judgment of the mili11 tary commission under this subsection only upon petition 

12 to the Court for such determination. 

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

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

15 than 20 days after the date on which— 

16 ‘‘(i) written notice of the final decision of the 

17 military commission is served on the accused or de18 fense counsel; or 

19 ‘‘(ii) the accused submits, in the form pre20 scribed by section 950c of this title, a written notice 

21 waiving the right of the accused to review by the 

22 Court of Military Commission Review under section 

23 950f of this title. 


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1 ‘‘(C) The accused may not file a petition under sub2 paragraph (A) if the accused has waived the right to ap3 pellate review under section 950c(a) of this title. 

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

5 of Appeals for the District of Columbia Circuit of the final 

6 validity of a judgment of a military commission under this 

7 subsection shall be governed by the provisions of section 

8 1005(e)(3) of the Detainee Treatment Act of 2005 (42 

9 U.S.C. 801 note). 

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

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

12 pursuant to section 1257 of title 28 the final judgment 

13 of the United States Court of Appeals for the District of 

14 Columbia Circuit in a determination under subsection (a). 

15 ‘‘§ 950h. Appellate counsel 

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

17 shall, by regulation, establish procedures for the appoint18 ment of appellate counsel for the United States and for 

19 the accused in military commissions under this chapter. 

20 Appellate counsel shall meet the qualifications of counsel 

21 for appearing before military commissions under this 

22 chapter. 

23 ‘‘(b) REPRESENTATION OF UNITED STATES.—Appel24 late counsel may represent the United States in any ap25 peal or review proceeding under this chapter. Appellate 


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1 Government counsel may represent the United States be2 fore the United States Court of Appeals for the District 

3 of Columbia Circuit and the Supreme Court in cases aris4 ing under this chapter when requested to do so by the 

5 Attorney General. 

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

7 shall be represented before the United States Court of Ap8 peals for the District of Columbia Circuit or the Supreme 

9 Court by military appellate counsel, or by civilian counsel 

10 if retained by him. 

11 ‘‘§ 950i. Execution of sentence; suspension of sentence 

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

13 UPON APPROVAL BY THE PRESIDENT.—If the sentence 

14 of a military commission under this chapter extends to 

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

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

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

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

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

20 UPON FINAL JUDGMENT OF LEGALITY OF PRO21 CEEDINGS.—(1) If the sentence of a military commission 

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

23 be executed until there is a final judgement as to the legal24 ity of the proceedings (and with respect to death, approval 

25 under subsection (a)). 


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

2 for purposes of paragraph (1) when— 

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

4 for review by the United States Court of Appeals for 

5 the District of Columbia Circuit has expired and the 

6 accused has not filed a timely petition for such re7 view and the case is not otherwise under review by 

8 the Court; or 

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

10 judgment of the United States Court of Appeals for 

11 the District of Columbia Circuit and (A) a petition 

12 for a writ of certiorari is not timely filed, (B) such 

13 a petition is denied by the Supreme Court, or (C) 

14 review is otherwise completed in accordance with the 

15 judgment of the Supreme Court. 

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

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

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

19 of any sentence or part thereof in the case, except a sen20 tence of death. 

21 ‘‘§ 950j. Finality of proceedings, findings, and sen22 tences 

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

24 trial provided by this chapter, and the proceedings, find25 ings, and sentences of military commissions as approved, 


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

2 and conclusive. Orders publishing the proceedings of mili3 tary commissions under this chapter are binding upon all 

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

5 States, except as otherwise provided by the President. 

6 ‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS FOR RE7 VIEW OF MILITARY COMMISSION PROCEDURES AND AC8 TIONS.—Except as otherwise provided in this chapter and 

9 notwithstanding any other provision of law (including sec10 tion 2241 of title 28 or any other habeas corpus provi11 sion), no court, justice, or judge shall have jurisdiction to 

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

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

14 enactment of this chapter, relating to the prosecution, 

15 trial, or judgment of a military commission under this 

16 chapter, including challenges to the lawfulness of proce17 dures of military commissions under this chapter. 

18 ‘‘SUBCHAPTER VII—PUNITIVE MATTERS 

‘‘Sec. 

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

‘‘950bb. Statement of substantive offenses. 

‘‘950cc. Principals. 

‘‘950dd. Accessory after the fact. 

‘‘950ee. Conviction of lesser offenses. 

‘‘950ff. Attempts. 

‘‘950gg. Solicitation. 

‘‘950hh. Murder of protected persons. 

‘‘950ii. Attacking civilians. 

‘‘950jj. Attacking civilian objects. 

‘‘950kk. Attacking protected property. 

‘‘950ll. Pillaging. 

‘‘950mm. Denying quarter. 

‘‘950nn. Taking hostages. 

‘‘950oo. Employing poison or similar weapons. 


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

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

‘‘950rr. Torture. 

‘‘950ss. Cruel or inhuman treatment. 

‘‘950tt. Intentionally causing serious bodily injury. 

‘‘950uu. Mutilating or maiming. 

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

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

‘‘950xx. Using treachery or perfidy. 

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

‘‘950zz. Improperly using a distinctive emblem. 

‘‘950aaa. Intentionally mistreating a dead body. 

‘‘950bbb. Rape. 

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

‘‘950ddd. Terrorism. 

‘‘950eee. Providing material support for terrorism. 

‘‘950fff. Wrongfully aiding the enemy. 

‘‘950ggg. Spying. 

‘‘950hhh. Conspiracy. 

‘‘950iii. Contempt. 

‘‘950jjj. Perjury and obstruction of justice. 

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

2 common circumstances 

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

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

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

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

11 to the attacker under the circumstances at the time 

12 of an attack. 

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

14 person entitled to protection under one or more of 

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1 ing an active part in hostilities, military personnel 

2 placed out of combat by sickness, wounds, or deten3 tion, and military medical or religious personnel. 

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

5 property specifically protected by the law of war, in6 cluding buildings dedicated to religion, education, 

7 art, science, or charitable purposes, historic monu8 ments, hospitals, and places where the sick and 

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

10 such property is not being used for military purposes 

11 or is not otherwise a military objective. The term in12 cludes objects properly identified by one of the dis13 tinctive emblems of the Geneva Conventions, but 

14 does not include civilian property that is a military 

15 objective. 

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

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

18 950jj, 950kk, and 950ss of this title precludes their appli19 cability with regard to collateral damage or to death, dam20 age, or injury incident to a lawful attack. 

21 ‘‘(c) COMMON CIRCUMSTANCES.—An offense speci22 fied in this subchapter is triable by military commission 

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

24 context of and associated with armed conflict. 


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1 ‘‘§ 950bb. Statement of substantive offenses 

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

3 codify offenses that have traditionally been triable by mili4 tary commissions. This chapter does not establish new 

5 crimes that did not exist before its enactment, but rather 

6 codifies those crimes for trial by military commission. 

7 ‘‘(b) EFFECT.—Because the provisions of this sub8 chapter (including provisions that incorporate definitions 

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

10 they do not preclude trial for crimes that occurred before 

11 the date of the enactment of this chapter. 

12 ‘‘§ 950cc. Principals 

13 ‘‘Any person is punishable as a principle under this 

14 chapter who— 

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

16 chapter, or aids, abets, counsels, commands, or pro17 cures its commission; 

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

19 performed by him would be punishable by this chap20 ter; or 

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

22 to acts punishable under this chapter, knew, had 

23 reason to know, or should have known, that a subor24 dinate was about to commit such acts or had done 

25 so and the superior failed to take the necessary and 


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1 reasonable measures to prevent such acts or to pun2 ish the perpetrators thereof. 

3 ‘‘§ 950dd. Accessory after the fact 

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

5 that an offense punishable by this chapter has been com6 mitted, receives, comforts, or assists the offender in order 

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

8 shall be punished as a military commission under this 

9 chapter may direct. 

10 ‘‘§ 950ee. Conviction of lesser offenses 

11 ‘‘An accused may be found guilty of an offense nec12 essarily included in the offense charged or of an attempt 

13 to commit either the offense charged or an attempt to 

14 commit either the offense charged or an offense nec15 essarily included therein. 

16 ‘‘§ 950ff. Attempts 

17 ‘‘(a) IN GENERAL.—Any person subject to this chap18 ter who attempts to commit any offense punishable by this 

19 chapter shall be punished as a military commission under 

20 this chapter may direct. 

21 ‘‘(b) SCOPE OF OFFENSE.—An act, done with spe22 cific intent to commit an offense under this chapter, 

23 amounting to more than mere preparation and tending, 

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

25 to commit that offense. 


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1 ‘‘(c) EFFECT OF CONSUMMATION.—Any person sub2 ject to this chapter may be convicted of an attempt to com3 mit an offense although it appears on the trial that the 

4 offense was consummated. 

5 ‘‘§ 950gg. Solicitation 

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

7 advises another or others to commit one or more sub8 stantive offenses triable by military commission under this 

9 chapter shall, if the offense solicited or advised is at10 tempted or committed, be punished with the punishment 

11 provided for the commission of the offense, but, if the of12 fense solicited or advised is not committed or attempted, 

13 he shall be punished as a military commission under this 

14 chapter may direct. 

15 ‘‘§ 950hh. Murder of protected persons 

16 ‘‘Any person subject to this chapter who intentionally 

17 kills one or more protected persons shall be punished by 

18 death or such other punishment as a military commission 

19 under this chapter may direct. 

20 ‘‘§ 950ii. Attacking civilians 

21 ‘‘Any person subject to this chapter who intentionally 

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

23 or individual civilians not taking active part in hostilities, 

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

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


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

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

3 other than death, as a military commission under this 

4 chapter may direct. 

5 ‘‘§ 950jj. Attacking civilian objects 

6 ‘‘Any person subject to this chapter who intentionally 

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

8 military objective shall be punished as a military commis9 sion under this chapter may direct. 

10 ‘‘§ 950kk. Attacking protected property 

11 ‘‘Any person subject to this chapter who intentionally 

12 engages in an attack upon protected property shall be pun13 ished as a military commission under this chapter may 

14 direct. 

15 ‘‘§ 950ll. Pillaging 

16 ‘‘Any person subject to this chapter who intentionally 

17 and in the absence of military necessity appropriates or 

18 seizes property for private or personal use, without the 

19 consent of a person with authority to permit such appro20 priation or seizure, shall be punished as a military com21 mission under this chapter may direct. 

22 ‘‘§ 950mm. Denying quarter 

23 ‘‘Any person subject to this chapter who, with effec24 tive command or control over subordinate groups, de25 clares, orders, or otherwise indicates to those groups that 


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

2 intent to threaten an adversary or to conduct hostilities 

3 such that there would be no survivors or surrender accept4 ed, shall be punished as a military commission under this 

5 chapter may direct. 

6 ‘‘§ 950nn. Taking hostages 

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

8 knowingly seized or detained one or more persons, threat9 ens to kill, injure, or continue to detain such person or 

10 persons with the intent of compelling any nation, person 

11 other than the hostage, or group of persons to act or re12 frain from acting as an explicit or implicit condition for 

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

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

15 by death or such other punishment as a military commis16 sion under this chapter may direct, and, if death does not 

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

18 than death, as a military commission under this chapter 

19 may direct. 

20 ‘‘§ 950oo. Employing poison or similar weapons 

21 ‘‘Any person subject to this chapter who inten22 tionally, as a method of warfare, employs a substance or 

23 weapon that releases a substance that causes death or se24 rious and lasting damage to health in the ordinary course 

25 of events, through its asphyxiating, bacteriological, or 


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

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

3 as a military commission under this chapter may direct, 

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

5 punishment, other than death, as a military commission 

6 under this chapter may direct. 

7 ‘‘§ 950pp. Using protected persons as a shield 

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

9 or otherwise takes advantage of, a protected person with 

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

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

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

13 by death or such other punishment as a military commis14 sion under this chapter may direct, and, if death does not 

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

16 than death, as a military commission under this chapter 

17 may direct. 

18 ‘‘§ 950qq. Using protected property as a shield 

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

20 or otherwise takes advantage of the location of, protected 

21 property with the intent to shield a military objective from 

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

23 shall be punished as a military commission under this 

24 chapter may direct. 


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1 ‘‘§ 950rr. Torture 

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

3 who commits an act specifically intended to inflict severe 

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

5 suffering incidental to lawful sanctions) upon another per6 son within his custody or physical control for the purpose 

7 of obtaining information or a confession, punishment, in8 timidation, coercion, or any reason based on discrimina9 tion of any kind, shall be punished, if death results to one 

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

11 as a military commission under this chapter may direct, 

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

13 punishment, other than death, as a military commission 

14 under this chapter may direct. 

15 ‘‘(b) SEVERE MENTAL PAIN OR SUFFERING DE16 FINED.—In this section, the term ‘severe mental pain or 

17 suffering’ has the meaning given that term in section 

18 2340(2) of title 18. 

19 ‘‘§ 950ss. Cruel or inhuman treatment 

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

21 who commits, or conspires or attempts to commit, an act 

22 intended to inflict severe or serious physical or mental 

23 pain or suffering (other than pain or suffering incidental 

24 to lawful sanctions), including serious physical abuse, 

25 upon another within his custody or control shall be pun26 ished, if death results to the victim, by death or such other 


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1 punishment as a military commission under this chapter 

2 may direct, and, if death does not result to the victim, 

3 by such punishment, other than death, as a military com4 mission under this chapter may direct. 

5 ‘‘(b) DEFINITIONS.—In this section: 

6 ‘‘(1) The term ‘severe mental pain or suffering’ 

7 has the meaning given that term in section 2340(2) 

8 of title 18. 

9 ‘‘(2) The term ‘serious physical pain or suf10 fering’ means bodily injury that involves— 

11 ‘‘(A) a substantial risk of death; 

12 ‘‘(B) extreme physical pain; 

13 ‘‘(C) a burn or physical disfigurement of a 

14 serious nature (other than cuts, abrasions, or 

15 bruises); or 

16 ‘‘(D) significant loss or impairment of the 

17 function of a bodily member, organ, or mental 

18 faculty. 

19 ‘‘(3) The term ‘serious mental pain or suf20 fering’ has the meaning given the term ‘severe men21 tal pain or suffering’ in section 2340(2) of title 18, 

22 except that— 

23 ‘‘(A) the term ‘serious’ shall replace the 

24 term ‘severe’ where it appears; and 


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1 ‘‘(B) as to conduct occurring after the date 

2 of the enactment of the Military Commission 

3 Act of 2006, the term ‘serious and non-transi4 tory mental harm (which need not be pro5 longed)’ shall replace the term ‘prolonged men6 tal harm’ where it appears. 

7 ‘‘§ 950tt. Intentionally causing serious bodily injury 

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

9 who intentionally causes serious bodily injury to one or 

10 more persons, including lawful combatants, in violation of 

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

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

13 as a military commission under this chapter may direct, 

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

15 punishment, other than death, as a military commission 

16 under this chapter may direct. 

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

18 section, the term ‘serious bodily injury’ means bodily in19 jury which involves— 

20 ‘‘(1) a substantial risk of death; 

21 ‘‘(2) extreme physical pain; 

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

23 ‘‘(4) protracted loss or impairment of the func24 tion of a bodily member, organ, or mental faculty. 


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1 ‘‘§ 950uu. Mutilating or maiming 

2 ‘‘Any person subject to this chapter who intentionally 

3 injures one or more protected persons by disfiguring the 

4 person or persons by any mutilation of the person or per5 sons, or by permanently disabling any member, limb, or 

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

7 legitimate medical or dental purpose, shall be punished, 

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

9 or such other punishment as a military commission under 

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

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

12 as a military commission under this chapter may direct. 

13 ‘‘§ 950vv. Murder in violation of the law of war 

14 ‘‘Any person subject to this chapter who intentionally 

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

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

17 such other punishment as a military commission under 

18 this chapter may direct. 

19 ‘‘§ 950ww. Destruction of property in violation of the 

20 law of war 

21 ‘‘Any person subject to this chapter who intentionally 

22 destroys property belonging to another person in violation 

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

24 under this chapter may direct. 


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1 ‘‘§ 950xx. Using treachery or perfidy 

2 ‘‘Any person subject to this chapter who, after invit3 ing the confidence or belief of one or more persons that 

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

5 under the law of war, intentionally makes use of that con6 fidence or belief in killing, injuring, or capturing such per7 son or persons shall be punished, if death results to one 

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

9 as a military commission under this chapter may direct, 

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

11 punishment, other than death, as a military commission 

12 under this chapter may direct. 

13 ‘‘§ 950yy. Improperly using a flag of truce 

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

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

16 otherwise suspend hostilities when there is no such inten17 tion shall be punished as a military commission under this 

18 chapter may direct. 

19 ‘‘§ 950zz. Improperly using a distinctive emblem 

20 ‘‘Any person subject to this chapter who intentionally 

21 uses a distinctive emblem recognized by the law of war 

22 for combatant purposes in a manner prohibited by the law 

23 of war shall be punished as a military commission under 

24 this chapter may direct. 


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1 ‘‘§ 950aaa. Intentionally mistreating a dead body 

2 ‘‘Any person subject to this chapter who intentionally 

3 mistreats the body of a dead person, without justification 

4 by legitimate military necessary, shall be punished as a 

5 military commission under this chapter may direct. 

6 ‘‘§ 950bbb. Rape 

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

8 with coercion or threat of force wrongfully invades the 

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

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

11 of the accused, or with any foreign object, shall be pun12 ished as a military commission under this chapter may 

13 direct. 

14 ‘‘§ 950ccc. Hijacking or hazarding a vessel or aircraft 

15 ‘‘Any person subject to this chapter who intentionally 

16 seizes, exercises unauthorized control over, or endangers 

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

18 legitimate military objective shall be punished, if death re19 sults to one or more of the victims, by death or such other 

20 punishment as a military commission under this chapter 

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

22 victims, by such punishment, other than death, as a mili23 tary commission under this chapter may direct. 

24 ‘‘§ 950ddd. Terrorism 

25 ‘‘Any person subject to this chapter who intentionally 

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


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1 persons, or intentionally engages in an act that evinces 

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

3 to influence or affect the conduct of government or civilian 

4 population by intimidation or coercion, or to retaliate 

5 against government conduct, shall be punished, if death 

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

7 other punishment as a military commission under this 

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

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

10 a military commission under this chapter may direct. 

11 ‘‘§ 950eee. Providing material support for terrorism 

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

13 who provides material support or resources, knowing or 

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

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

16 950ddd of this title), or who intentionally provides mate17 rial support or resources to an international terrorist orga18 nization engaged in hostilities against the United States, 

19 knowing that such organization has engaged or engages 

20 in terrorism (as so set forth), shall be punished as a mili21 tary commission under this chapter may direct. 

22 ‘‘(b) MATERIAL SUPPORT OR RESOURCES DE23 FINED.—In this section, the term ‘material support or re24 sources’ has the meaning given that term in section 

25 2339A(b) of title 18. 


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1 ‘‘§ 950fff. Wrongfully aiding the enemy 

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

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

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

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

6 as a military commission under this chapter may direct. 

7 ‘‘§ 950ggg. Spying 

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

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

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

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

12 collect information by clandestine means or while acting 

13 under false pretenses, for the purpose of conveying such 

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

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

16 death or such other punishment as a military commission 

17 under this chapter may direct. 

18 ‘‘§ 950hhh. Conspiracy 

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

20 commit one or more substantive offenses triable by mili21 tary commission under this subchapter, and who know22 ingly does any overt act to effect the object of the con23 spiracy, shall be punished, if death results to one or more 

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

25 military commission under this chapter may direct, and, 

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1 ishment, other than death, as a military commission under 

2 this chapter may direct. 

3 ‘‘§ 950iii. Contempt 

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

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

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

9 ‘‘A military commission under this chapter may try 

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

13 (2) TABLES OF CHAPTERS AMENDMENTS.—The 

14 tables of chapters at the beginning of subtitle A and 

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

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

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

18 (b) SUBMITTAL OF PROCEDURES TO CONGRESS.— 

19 (1) SUBMITTAL OF PROCEDURES.—Not later 

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

21 Act, the Secretary of Defense shall submit to the 

22 Committees on Armed Services of the Senate and 

23 the House of Representatives a report setting forth 

24 the procedures for military commissions prescribed 


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

2 (as added by subsection (a)). 

3 (2) SUBMITTAL OF MODIFICATIONS.—Not later 

4 than 60 days before the date on which any proposed 

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

7 submit to the committees of Congress referred to in 

8 that paragraph a report describing such modifica9 tion. 

10 SEC. 105. AMENDMENTS TO OTHER LAWS. 

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

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

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

14 200dd–1(b)) is amended— 

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

16 ‘‘shall provide’’; 

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

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

20 courts or agencies, foreign courts or agencies, or 

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

22 that subsection,’’. 

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

25 of Military Justice), is amended as follows: 


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

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

3 the following new paragraph: 

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

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

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

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

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

11 Code of Military Justice) is amended by inserting 

12 ‘‘(other than military commissions under chapter 

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

14 (c) PUNITIVE ARTICLE OF CONSPIRACY.—Section 

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

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

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

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

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

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

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


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

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

4 commission may direct.’’. 

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

7 (1) REVIEW BY SUPREME COURT.—Section 

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

9 adding at the end the following new paragraph: 

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

12 the District of Columbia Circuit under section 950g 

13 of title 10.’’. 

14 (2) DETAINEE TREATMENT ACT OF 2005.—Sec15 tion 1005(e)(3) of the Detainee Treatment Act of 

16 2005 (title X of Public Law 109–148; 119 Stat. 

17 2740; 10 U.S.C. 801 note) is amended— 

18 (A) in subparagraph (A), by striking 

19 ‘‘pursuant to Military Commission Order 

20 No. 1. dated August 31, 2005 (or any suc21 cessor military order)’’ and inserting ‘‘by a 

22 military commission under chapter 47A of 

23 title 10, United States Code’’; 


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1 (B) by striking subparagraph (B) and 

2 inserting the following new subparagraph 

3 (B): 

4 ‘‘(B) GRANT OF REVIEW.—Review under 

5 this paragraph shall be as of right.’’; 

6 (C) in subparagraph (C)— 

7 (i) in clause (i)— 

8 (I) by striking ‘‘pursuant to 

9 the military order’’ and inserting 

10 ‘‘by a military commission’’; and 

11 (II) by striking ‘‘at Guanta12 namo Bay, Cuba’’; and 

13 (ii) in clause (ii), by striking 

14 ‘‘pursuant to such military order’’ and 

15 inserting ‘‘by the military commis16 sion’’; and 

17 (D) in subparagraph (D)(i), by strik18 ing ‘‘specified in the military order’’ and 

19 inserting ‘‘specified for a military commis20 sion’’. 

21 SEC. 106. HABEAS CORPUS MATTERS. 

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

23 States Code, is amended— 

24 (1) by striking subsection (e) (as added by sec25 tion 1005(e)(1) of Public Law 109–148 (119 Stat. 


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1 2742)) and by striking subsection (e) (as added by 

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

3 (119 Stat. 3477)); and 

4 (2) by adding at the end the following new sub5 section: 

6 ‘‘(e)(1) No court, justice, or judge shall have jurisdic7 tion to hear or consider an application for a writ of habeas 

8 corpus filed by or on behalf of an alien detained by the 

9 United States who— 

10 ‘‘(A) is currently in United States custody; and 

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

12 to have been properly detained as an enemy combat13 ant or is awaiting such determination. 

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

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

16 (10 U.S.C. 801 note), no court, justice, or judge shall have 

17 jurisdiction to hear or consider any other action against 

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

19 the detention, transfer, treatment, trial, or conditions of 

20 confinement of an alien detained by the United States 

21 who— 

22 ‘‘(A) is currently in United States custody; and 

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

24 to have been properly detained as an enemy combat25 ant or is awaiting such determination.’’. 


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

2 subsection (a) shall take effect on the date of the enact3 ment of this Act, and shall apply to all cases, without ex4 ception, pending on or after the date of the enactment of 

5 this Act which relate to any aspect of the detention, trans6 fer, treatment, trial, or conditions of detention of an alien 

7 detained by the United States since September 11, 2001. 

8 SEC. 107. TREATY OBLIGATIONS NOT ESTABLISHING 

9 GROUNDS FOR CERTAIN CLAIMS. 

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

11 Conventions, or any protocols thereto, in any habeas or 

12 civil action or proceeding to which the United States, or 

13 a current or former officer, employee, member of the 

14 Armed Forces, or other agent of the United States, is a 

15 party, as a source of rights in any court of the United 

16 States or its States or territories. 

17 (b) GENEVA CONVENTIONS DEFINED.—In this sec18 tion, the term ‘‘Geneva Conventions’’ means— 

19 (1) the Convention for the Amelioration of the 

20 Condition of the Wounded and Sick in Armed 

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

22 1949 (6 UST 3217); 

23 (2) the Convention for the Amelioration of the 

24 Condition of the Wounded, Sick, and Shipwrecked 


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1 Members of the Armed Forces at Sea, done at Gene2 va August 12, 1949 (6 UST 3217); 

3 (3) the Convention Relative to the Treatment of 

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

5 (6 UST 3316); and 

6 (4) the Convention Relative to the Protection of 

7 Civilian Persons in Time of War, done at Geneva 

8 August 12, 1949 (6 UST 3516). 

9 SEC. 108. IMPLEMENTATION OF TREATY OBLIGATIONS. 

10 (a) IMPLEMENTATION OF TREATY OBLIGATIONS.— 

11 (1) IN GENERAL.—The acts enumerated in sub12 section (d) of section 2441 of title 18, United States 

13 Code, as added by subsection (b) of this section, and 

14 in subsection (c) of this section, constitute violations 

15 of common Article 3 of the Geneva Conventions pro16 hibited by United States law. 

17 (2) PROHIBITION ON GRAVE BREACHES.—The 

18 provisions of section 2441 of title 18, United States 

19 Code, as amended by this section, fully satisfy the 

20 obligation under Article 129 of the Third Geneva 

21 Convention for the United States to provide effective 

22 penal sanctions for grave breaches which are encom23 passed in common Article 3 in the context of an 

24 armed conflict not of an international character. No 

25 foreign or international source of law shall supply a 


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1 basis for a rule of decision in the courts of the 

2 United States in interpreting the prohibitions enu3 merated in subsection (d) of such section 2441. 

4 (3) INTERPRETATION BY THE PRESIDENT.—(A) 

5 As provided by the Constitution and by this section, 

6 the President has the authority for the United 

7 States to interpret the meaning and application of 

8 the Geneva Conventions and to promulgate higher 

9 standards and administrative regulations for viola10 tions of treaty obligations which are not grave 

11 breaches of the Geneva Conventions. 

12 (B) The President shall issue interpretations 

13 described by subparagraph (A) by Executive Order 

14 published in the Federal Register. 

15 (C) Any Executive Order published under this 

16 paragraph shall be authoritative (as to non-grave 

17 breach provisions of common Article 3) as a matter 

18 of United States law, in the same manner as other 

19 administrative regulations. 

20 (D) Nothing in this section shall be construed 

21 to affect the constitutional functions and responsibil22 ities of Congress and the judicial branch of the 

23 United States. 

24 (4) DEFINITIONS.—In this subsection: 


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1 (A) The term ‘‘Geneva Conventions’’ 

2 means— 

3 (i) the Convention for the Ameliora4 tion of the Condition of the Wounded and 

5 Sick in Armed Forces in the Field, done at 

6 Geneva August 12, 1949 (6 UST 3217); 

7 (ii) the Convention for the Ameliora8 tion of the Condition of the Wounded, 

9 Sick, and Shipwrecked Members of the 

10 Armed Forces at Sea, done at Geneva Au11 gust 12, 1949 (6 UST 3217); 

12 (iii) the Convention Relative to the 

13 Treatment of Prisoners of War, done at 

14 Geneva August 12, 1949 (6 UST 3316); 

15 and 

16 (iv) the Convention Relative to the 

17 Protection of Civilian Persons in Time of 

18 War, done at Geneva August 12, 1949 (6 

19 UST 3516). 

20 (B) The term ‘‘Third Geneva Convention’’ 

21 means the international convention referred to 

22 in subparagraph (A)(iii). 

23 (b) REVISION TO WAR CRIMES OFFENSE UNDER

24 FEDERAL CRIMINAL CODE.— 


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1 (1) IN GENERAL.—Section 2441 of title 18, 

2 United States Code, is amended— 

3 (A) in subsection (c), by striking para4 graph (3) and inserting the following new para5 graph (3): 

6 ‘‘(3) which constitutes a grave breach of com7 mon Article 3 as defined in subsection (d) when 

8 committed in the context of and in association with 

9 an armed conflict not of an international character; 

10 or’’; and 

11 (B) by adding at the end the following new 

12 subsection: 

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

14 ‘‘(1) PROHIBITED CONDUCT.—In subsection 

15 (c)(3), the term ‘grave breach of common Article 3’ 

16 means any conduct (such conduct constituting a 

17 grave breach of common Article 3 of the inter18 national conventions done at Geneva August 12, 

19 1949), as follows: 

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

21 commits, or conspires or attempts to commit, 

22 an act specifically intended to inflict severe 

23 physical or mental pain or suffering (other than 

24 pain or suffering incidental to lawful sanctions) 

25 upon another person within his custody or 


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1 physical control for the purpose of obtaining in2 formation or a confession, punishment, intimi3 dation, coercion, or any reason based on dis4 crimination of any kind. 

5 ‘‘(B) CRUEL OR INHUMAN TREATMENT.— 

6 The act of a person who commits, or conspires 

7 or attempts to commit, an act intended to in8 flict severe or serious physical or mental pain or 

9 suffering (other than pain or suffering inci10 dental to lawful sanctions), including serious 

11 physical abuse, upon another within his custody 

12 or control. 

13 ‘‘(C) PERFORMING BIOLOGICAL EXPERI14 MENTS.—The act of a person who subjects, or 

15 conspires or attempts to subject, one or more 

16 persons within his custody or physical control to 

17 biological experiments without a legitimate med18 ical or dental purpose and in so doing endan19 gers the body or health of such person or per20 sons. 

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

22 intentionally kills, or conspires or attempts to 

23 kill, or kills whether intentionally or uninten24 tionally in the course of committing any other 

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1 sons taking no active part in the hostilities, in2 cluding those placed out of combat by sickness, 

3 wounds, detention, or any other cause. 

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

5 of a person who intentionally injures, or con6 spires or attempts to injure, or injures whether 

7 intentionally or unintentionally in the course of 

8 committing any other offense under this sub9 section, one or more persons taking no active 

10 part in the hostilities, including those placed 

11 out of combat by sickness, wounds, detention, 

12 or any other cause, by disfiguring the person or 

13 persons by any mutilation thereof or by perma14 nently disabling any member, limb, or organ of 

15 his body, without any legitimate medical or den16 tal purpose. 

17 ‘‘(F) INTENTIONALLY CAUSING SERIOUS

18 BODILY INJURY.—The act of a person who in19 tentionally causes, or conspires or attempts to 

20 cause, serious bodily injury to one or more per21 sons, including lawful combatants, in violation 

22 of the law of war. 

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

24 forcibly or with coercion or threat of force 

25 wrongfully invades, or conspires or attempts to 


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1 invade, the body of a person by penetrating, 

2 however slightly, the anal or genital opening of 

3 the victim with any part of the body of the ac4 cused, or with any foreign object. 

5 ‘‘(H) SEXUAL ASSAULT OR ABUSE.—The 

6 act of a person who forcibly or with coercion or 

7 threat of force engages, or conspires or at8 tempts to engage, in sexual contact with one or 

9 more persons, or causes, or conspires or at10 tempts to cause, one or more persons to engage 

11 in sexual contact. 

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

13 person who, having knowingly seized or de14 tained one or more persons, threatens to kill, 

15 injure, or continue to detain such person or per16 sons with the intent of compelling any nation, 

17 person other than the hostage, or group of per18 sons to act or refrain from acting as an explicit 

19 or implicit condition for the safety or release of 

20 such person or persons. 

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

22 under subsection (a) by reason of subsection 

23 (c)(3)— 

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1 graphs (1)(A) and (1)(B) in accordance with 

2 the meaning given that term in section 2340(2) 

3 of this title; 

4 ‘‘(B) the term ‘serious bodily injury’ shall 

5 be applied for purposes of paragraph (1)(F) in 

6 accordance with the meaning given that term in 

7 section 113(b)(2) of this title; 

8 ‘‘(C) the term ‘sexual contact’ shall be ap9 plied for purposes of paragraph (1)(G) in ac10 cordance with the meaning given that term in 

11 section 2246(3) of this title; 

12 ‘‘(D) the term ‘serious physical pain or 

13 suffering’ shall be applied for purposes of para14 graph (1)(B) as meaning bodily injury that in15 volves— 

16 ‘‘(i) a substantial risk of death; 

17 ‘‘(ii) extreme physical pain; 

18 ‘‘(iii) a burn or physical disfigurement 

19 of a serious nature (other than cuts, abra20 sions, or bruises); or 

21 ‘‘(iv) significant loss or impairment of 

22 the function of a bodily member, organ, or 

23 mental faculty; and 

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1 graph (1)(B) in accordance with the meaning 

2 given the term ‘severe mental pain or suffering’ 

3 (as defined in section 2340(2) of this title), ex4 cept that— 

5 ‘‘(i) the term ‘serious’ shall replace 

6 the term ‘severe’ where it appears; and 

7 ‘‘(ii) as to conduct occurring after the 

8 date of the enactment of the Military Com9 mission Act of 2006, the term ‘serious and 

10 non-transitory mental harm (which need 

11 not be prolonged)’ shall replace the term 

12 ‘prolonged mental harm’ where it appears. 

13 ‘‘(3) INAPPLICABILITY OF CERTAIN PROVISIONS

14 WITH RESPECT TO COLLATERAL DAMAGE OR INCI15 DENT OF LAWFUL ATTACK.—The intent specified for 

16 the conduct stated in subparagraphs (D), (E), and 

17 (F) or paragraph (1) precludes the applicability of 

18 those subparagraphs to an offense under subsection 

19 (a) by reasons of subsection (c)(3) with respect to— 

20 ‘‘(A) collateral damage; or 

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

22 a lawful attack. 

23 ‘‘(4) INAPPLICABILITY OF TAKING HOSTAGES

24 TO PRISONER EXCHANGE.—Paragraph (1)(I) does 

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1 son of subsection (c)(3) in the case of a prisoner ex2 change during wartime.’’. 

3 (2) RETROACTIVE APPLICABILITY.—The 

4 amendments made by this subsection, except as 

5 specified in subsection (d)(2)(E) of section 2441 of 

6 title 18, United States Code, shall take effect as of 

7 November 26, 1997, as if enacted immediately after 

8 the amendments made by section 583 of Public Law 

9 105–118 (as amended by section 4002(e)(7) of Pub10 lic Law 107–273). 

11 (c) ADDITIONAL PROHIBITION ON CRUEL, INHUMAN, 

12 OR DEGRADING TREATMENT OR PUNISHMENT.— 

13 (1) IN GENERAL.—No individual in the custody 

14 or under the physical control of the United States 

15 Government, regardless of nationality or physical lo16 cation, shall be subject to cruel, inhuman, or degrad17 ing treatment or punishment. 

18 (2) CRUEL, INHUMAN, OR DEGRADING TREAT19 MENT OR PUNISHMENT DEFINED.—In this sub20 section, the term ‘‘cruel, inhuman, or degrading 

21 treatment or punishment’’ means cruel, unusual, 

22 and inhumane treatment or punishment prohibited 

23 by the Fifth, Eighth, and Fourteenth Amendments 

24 to the Constitution of the United States, as defined 

25 in the United States Reservations, Declarations and 


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1 Understandings to the United Nations Convention 

2 Against Torture and Other Forms of Cruel, Inhu3 man or Degrading Treatment or Punishment done 

4 at New York, December 10, 1984. 

5 (3) COMPLIANCE.—The President shall take ap6 propriate action to ensure compliance with this sub7 section, including through the establishment of ad8 ministrative rules and procedures. 

9 SEC. 109. DETENTION COVERED BY REVIEW OF DECISIONS 

10 OF COMBATANT STATUS REVIEW TRIBUNALS 

11 OF PROPRIETY OF DETENTION. 

12 Section 1005(e)(2)(B)(i) of the Detainee Treatment 

13 Act of 2005 (title X of Public Law 109–148; 119 Stat. 

14 2742; 10 U.S.C. 801 note) is amended by striking ‘‘the 

15 Department of Defense at Guantanamo Bay, Cuba’’ and 

16 inserting ‘‘the United States’’. 

17 SEC. 110. SEVERABILITY. 

18 If any provision of this Act or amendment made by 

19 a provision of this Act, or the application of such provision 

20 or amendment to any person or circumstance, is held to 

21 be unconstitutional, the remainder of this Act and the 

22 amendments made by this Act, and the application of such 

23 provisions and amendments to any other person or cir24 cumstance, shall not be affected thereby. 


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1 TITLE II—TERRORIST 

2 SURVEILLANCE ACT 

3 SEC. 201. SHORT TITLE. 

4 This title may be cited as the ‘‘Terrorist Surveillance 

5 Act of 2006’’. 

6 SEC. 202. FINDINGS. 

7 Congress finds the following: 

8 (1) After the terrorist attacks of September 11, 

9 2001, President Bush authorized the National Secu10 rity Agency to intercept communications between 

11 people inside the United States, including American 

12 citizens, and terrorism suspects overseas. 

13 (2) One of the lessons learned from September 

14 11, 2001, is that the enemies who seek to greatly 

15 harm and terrorize our Nation utilize technologies 

16 and techniques that defy conventional law enforce17 ment practices. 

18 (3) The President, as the constitutional officer 

19 most directly responsible for protecting the United 

20 States from attack, requires the ability and means 

21 to detect and track an enemy that can master and 

22 exploit modern technology. 

23 (4) It is equally essential, however, that in pro24 tecting the United States against our enemies, the 

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1 erties that he seeks to safeguard. As Justice Hugo 

2 Black observed, ‘‘The President’s power, if any, to 

3 issue [an] order must stem either from an Act of 

4 Congress or from the Constitution itself.’’ Youngs5 town Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 

6 585 (1952) (opinion by Black, J.). Similarly, in 

7 2004, Justice Sandra Day O’Connor explained in 

8 her plurality opinion for the Supreme Court in 

9 Hamdi v. Rumsfeld: ‘‘We have long since made clear 

10 that a state of war is not a blank check for the 

11 President when it comes to the rights of the Na12 tion’s citizens.’’ Hamdi v. Rumsfeld, 542 U.S. 507, 

13 536 (2004) (citations omitted). 

14 (5) When deciding issues of national security, it 

15 is in our Nation’s best interest that, to the extent 

16 feasible, all 3 branches of the Federal Government 

17 should be involved. This helps guarantee that elec18 tronic surveillance programs do not infringe on the 

19 constitutional rights of Americans, while at the same 

20 time ensuring that the President has all the powers 

21 and means necessary to detect and track our en22 emies and protect our Nation from attack. 

23 (6) As Justice Sandra Day O’Connor explained 

24 in her plurality opinion for the Supreme Court in 

25 Hamdi v. Rumsfeld, ‘‘Whatever power the United 


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1 States Constitution envisions for the Executive in its 

2 exchanges with other nations or with enemy organi3 zations in times of conflict, it most assuredly envi4 sions a role for all 3 branches when individual lib5 erties are at stake.’’ Hamdi v. Rumsfeld, 542 U.S. 

6 507, 536 (2004) (citations omitted). 

7 (7) Similarly, Justice Jackson famously ex8 plained in his Youngstown concurrence: ‘‘When the 

9 President acts pursuant to an express or implied au10 thorization of Congress, his authority is at its max11 imum, for it includes all that he possesses in his own 

12 right plus all that Congress can delegate . . . When 

13 the President acts in absence of either a congres14 sional grant or denial of authority, he can only rely 

15 upon his own independent powers, but there is a 

16 zone of twilight in which he and Congress may have 

17 concurrent authority, or in which its distribution is 

18 uncertain. Therefore, congressional inertia, indiffer19 ence or quiescence may sometimes, at least as a 

20 practical matter, enable, if not invite, measures on 

21 independent presidential responsibility . . . When the 

22 President takes measures incompatible with the ex23 pressed or implied will of Congress, his power is at 

24 its lowest ebb, for then he can rely only upon his 

25 own constitutional powers minus any constitutional 


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1 powers of Congress over the matter. Courts can sus2 tain exclusive Presidential control in such a case 

3 only by disabling the Congress from acting upon the 

4 subject.’’ Youngstown Sheet & Tube Co. v. Sawyer, 

5 343 U.S. 579, 635–38 (1952) (Jackson, J., concur6 ring). 

7 (8) Congress clearly has the authority to enact 

8 legislation with respect to electronic surveillance pro9 grams. The Constitution provides Congress with 

10 broad powers of oversight over national security and 

11 foreign policy, under article I, section 8 of the Con12 stitution of the United States, which confers on Con13 gress numerous powers, including the powers— 

14 (A) ‘‘To declare War, grant Letters of 

15 Marque and Reprisal, and make Rules con16 cerning Captures on Land and Water’’; 

17 (B) ‘‘To raise and support Armies’’; 

18 (C) ‘‘To provide and maintain a Navy’’; 

19 (D) ‘‘To make Rules for the Government 

20 and Regulation of the land and naval Forces’’; 

21 (E) ‘‘To provide for calling forth the Mili22 tia to execute the Laws of the Union, suppress 

23 Insurrections and repel Invasions’’; and 

24 (F) ‘‘To provide for organizing, arming, 

25 and disciplining the Militia, and for governing 


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1 such Part of them as may be employed in the 

2 Service of the United States’’. 

3 (9) While Attorney General Alberto Gonzales 

4 explained that the executive branch reviews the elec5 tronic surveillance program of the National Security 

6 Agency every 45 days to ensure that the program is 

7 not overly broad, it is the belief of Congress that ap8 proval and supervision of electronic surveillance pro9 grams should be conducted outside of the executive 

10 branch, by the article III court established under 

11 section 103 of the Foreign Intelligence Surveillance 

12 Act of 1978 (50 U.S.C. 1803) and the congressional 

13 intelligence committees. It is also the belief of Con14 gress that it is appropriate for an article III court 

15 to pass upon the constitutionality of electronic sur16 veillance programs that may be directed at Ameri17 cans. 

18 (10) The Foreign Intelligence Surveillance 

19 Court is the proper court to approve and supervise 

20 classified electronic surveillance programs because it 

21 is adept at maintaining the secrecy with which it 

22 was charged and it possesses the requisite expertise 

23 and discretion for adjudicating sensitive issues of 

24 national security. 


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1 (11) In 1975, [then] Attorney General Edward 

2 Levi, a strong defender of executive authority, testi3 fied that in times of conflict, the President needs the 

4 power to conduct long-range electronic surveillance 

5 and that a foreign intelligence surveillance court 

6 should be empowered to issue special approval orders 

7 in these circumstances. 

8 (12) Granting the Foreign Intelligence Surveil9 lance Court the authority to review electronic sur10 veillance programs and pass upon their constitu11 tionality is consistent with well-established, long12 standing practices. 

13 (13) The Foreign Intelligence Surveillance 

14 Court already has broad authority to approve sur15 veillance of members of international conspiracies, in 

16 addition to granting warrants for surveillance of a 

17 particular individual under sections 104, 105, and 

18 402 of the Foreign Intelligence Surveillance Act of 

19 1978 (50 U.S.C. 1804, 1805, and 1842). 

20 (14) Prosecutors have significant flexibility in 

21 investigating domestic conspiracy cases. Courts have 

22 held that flexible warrants comply with the 4th 

23 amendment to the Constitution of the United States 

24 when they relate to complex, far-reaching, and 

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1 acies and money laundering rings. The courts recog2 nize that applications for search warrants must be 

3 judged in a common sense and realistic fashion, and 

4 the courts permit broad warrant language where, 

5 due to the nature and circumstances of the inves6 tigation and the criminal organization, more precise 

7 descriptions are not feasible. 

8 (15) The Supreme Court, in the ‘‘Keith Case’’, 

9 United States v. United States District Court for 

10 the Eastern District of Michigan, 407 U.S. 297 

11 (1972), recognized that the standards and proce12 dures used to fight ordinary crime may not be appli13 cable to cases involving national security. The Court 

14 recognized that national ‘‘security surveillance may 

15 involve different policy and practical considerations 

16 from the surveillance of ordinary crime’’ and that 

17 courts should be more flexible in issuing warrants in 

18 national security cases. United States v. United 

19 States District Court for the Eastern District of 

20 Michigan, 407 U.S. 297, 322 (1972). 

21 (16) By authorizing the Foreign Intelligence 

22 Surveillance Court to review electronic surveillance 

23 programs, Congress enables the President to use the 

24 necessary means to guard our national security, 


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1 while also protecting the civil liberties and constitu2 tional rights that we cherish. 

3 SEC. 203. DEFINITIONS. 

4 The Foreign Intelligence Surveillance Act of 1978 

5 (50 U.S.C. 1801 et seq.) is amended— 

6 (1) by redesignating title VII as title VIII; 

7 (2) by redesignating section 701 as section 801; 

8 and 

9 (3) by inserting after title VI the following: 

10 ‘‘TITLE VII—ELECTRONIC 

11 SURVEILLANCE PROGRAMS 

12 ‘‘SEC. 701. DEFINITIONS. 

13 ‘‘As used in this title— 

14 ‘‘(1) the terms ‘agent of a foreign power’, ‘At15 torney General’, ‘contents’, ‘electronic surveillance’, 

16 ‘foreign power’, ‘international terrorism’, ‘minimiza17 tion procedures’, ‘person’, ‘United States’, and 

18 ‘United States person’ have the same meaning as in 

19 section 101; 

20 ‘‘(2) the term ‘congressional intelligence com21 mittees’ means the Select Committee on Intelligence 

22 of the Senate and the Permanent Select Committee 

23 on Intelligence of the House of Representatives; 


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1 ‘‘(3) the term ‘electronic surveillance program’ 

2 means a program to engage in electronic surveil3 lance— 

4 ‘‘(A) that has as a significant purpose the 

5 gathering of foreign intelligence information or 

6 protecting against international terrorism; 

7 ‘‘(B) where it is not feasible to name every 

8 person, address, or location to be subjected to 

9 electronic surveillance; 

10 ‘‘(C) where effective gathering of foreign 

11 intelligence information requires the flexibility 

12 to begin electronic surveillance immediately 

13 after learning of suspect activity; and 

14 ‘‘(D) where effective gathering of foreign 

15 intelligence information requires an extended 

16 period of electronic surveillance; 

17 ‘‘(4) the term ‘foreign intelligence information’ 

18 has the same meaning as in section 101(e) and in19 cludes information necessary to protect against 

20 international terrorism; 

21 ‘‘(5) the term ‘Foreign Intelligence Surveillance 

22 Court’ means the court established under section 

23 103(a); and 


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1 ‘‘(6) the term ‘Foreign Intelligence Surveillance 

2 Court of Review’ means the court established under 

3 section 103(b).’’. 

4 SEC. 204. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

5 JURISDICTION TO REVIEW ELECTRONIC SUR6 VEILLANCE PROGRAMS. 

7 (a) IN GENERAL.—Title VII of the Foreign Intel8 ligence Surveillance Act of 1978, as amended by section 

9 3, is amended by adding at the end the following: 

10 ‘‘SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

11 JURISDICTION TO REVIEW ELECTRONIC SUR12 VEILLANCE PROGRAMS. 

13 ‘‘(a) AUTHORIZATION OF REVIEW.— 

14 ‘‘(1) INITIAL AUTHORIZATION.—The Foreign 

15 Intelligence Surveillance Court shall have jurisdic16 tion to issue an order under this title, lasting not 

17 longer than 90 days, that authorizes an electronic 

18 surveillance program to obtain foreign intelligence 

19 information or to protect against international ter20 rorism. 

21 ‘‘(2) REAUTHORIZATION.—The Foreign Intel22 ligence Surveillance Court shall have jurisdiction to 

23 reauthorize an electronic surveillance program for a 

24 period of time not longer than such court determines 

25 to be reasonable. There shall be no limit on the 


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1 number of times the Attorney General may seek re2 authorization of an electronic surveillance program. 

3 ‘‘(3) RESUBMISSION OR APPEAL.—In the event 

4 that the Foreign Intelligence Surveillance Court re5 fuses to approve an application under this sub6 section, the court shall state its reasons in a written 

7 opinion, which it shall submit to the Attorney Gen8 eral. The Attorney General or his designee may sub9 mit a new application under section 703 for the elec10 tronic surveillance program, with no limit on the 

11 number of resubmissions that may be made. Alter12 natively, the Attorney General may appeal the deci13 sion of the Foreign Intelligence Surveillance Court 

14 to the Foreign Intelligence Surveillance Court of Re15 view. 

16 ‘‘(4) CONTINUED SURVEILLANCE UNDER TITLE

17 I.— 

18 ‘‘(A) IN GENERAL.—If, at any time, the 

19 Attorney General determines that the known 

20 facts and circumstances relating to any target 

21 within the United States under this title satisfy 

22 the criteria for an application under section 104 

23 for an order for electronic surveillance of the 

24 target under section 105, the Attorney General 

25 shall— 


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1 ‘‘(i) discontinue the surveillance of the 

2 target under this title; or 

3 ‘‘(ii) continue the surveillance of the 

4 target under this title, subject to the re5 quirements of subparagraph (B). 

6 ‘‘(B) CONTINUATION OF SURVEILLANCE.— 

7 ‘‘(i) IN GENERAL.—The Attorney 

8 General may continue surveillance of a tar9 get under this title as specified in subpara10 graph (A)(ii) only if the Attorney General 

11 makes an application under section 104 for 

12 an order for electronic surveillance of the 

13 target under section 105 as soon as the 

14 Attorney General determines practicable 

15 after the date on which the Attorney Gen16 eral makes the determination to continue 

17 surveillance of the target under subpara18 graph (A)(ii). 

19 ‘‘(ii) PERIOD.—The period during 

20 which the Attorney General may continue 

21 surveillance of a target under this title 

22 after the Attorney General has determined 

23 that making an application is practicable 

24 shall be limited to a reasonable period, as 

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1 ing which the application is prepared and 

2 the period during which the application of 

3 the Attorney General under section 104 for 

4 an order for electronic surveillance of the 

5 target under section 105 is pending under 

6 title I, including during any period in 

7 which appeal from the denial of the appli8 cation is pending with the Foreign Intel9 ligence Surveillance Court of Review or the 

10 Supreme Court under section 103(b). 

11 ‘‘(b) MANDATORY TRANSFER FOR REVIEW.— 

12 ‘‘(1) IN GENERAL.—In any case before any 

13 court challenging the legality of classified commu14 nications intelligence activity relating to a foreign 

15 threat, including an electronic surveillance program, 

16 or in which the legality of any such activity or pro17 gram is in issue, if the Attorney General files an af18 fidavit under oath that the case should be trans19 ferred to the Foreign Intelligence Surveillance Court 

20 of Review because further proceedings in the origi21 nating court would harm the national security of the 

22 United States, the originating court shall transfer 

23 the case of the Foreign Intelligence Surveillance for 

24 further proceedings under this subsection. 


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1 ‘‘(2) PROCEDURES FOR REVIEW.—The Foreign 

2 Intelligence Surveillance Court shall have jurisdic3 tion as appropriate to determine standing and the 

4 legality of the program to the extent necessary for 

5 resolution of the underlying case. All proceedings 

6 under this paragraph shall be conducted in accord7 ance with the procedures set forth in section 106(f). 

8 In the event the Foreign Intelligence Surveillance 

9 Court determines that, in the context of a criminal 

10 proceeding, the Constitution of the United States 

11 would require the disclosure of national security in12 formation, any such constitutionally required disclo13 sure shall be governed by the Classified Information 

14 Procedures Act, (18 U.S.C. App.), or if applicable, 

15 section 2339B(f) of title 18, United States Code. 

16 ‘‘(3) APPEAL, CERTIORARI, AND EFFECTS OF

17 DECISIONS.—The decision of the Foreign Intel18 ligence Surveillance Court made under paragraphs 

19 (1) and (2), including a decision that the disclosure 

20 of national security information is constitutionally 

21 required, shall be subject to review by the Foreign 

22 Intelligence Surveillance Court of Review under sec23 tion 103(b). The Supreme Court of the United 

24 States shall have jurisdiction to review decisions of 

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1 view by writ of certiorari granted upon the petition 

2 of the United States. The decision by the Foreign 

3 Intelligence Surveillance Court shall otherwise be 

4 binding in all other courts. 

5 ‘‘(4) DISMISSAL.—The Foreign Intelligence 

6 Surveillance Court or a court that is an originating 

7 court under paragraph (1) may dismiss a challenge 

8 to the legality of an electronic surveillance program 

9 for any reason provided for under law. 

10 ‘‘(5) PRESERVATION OF LITIGATION PRIVI11 LEGES.—Nothing in this Act shall be construed to 

12 abrogate, limit, or affect any litigation privileges in 

13 any court.’’. 

14 SEC. 205. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

15 SURVEILLANCE PROGRAMS. 

16 Title VII of the Foreign Intelligence Surveillance Act 

17 of 1978, as amended by section 4, is amended by adding 

18 at the end the following: 

19 ‘‘SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

20 SURVEILLANCE PROGRAMS. 

21 ‘‘(a) IN GENERAL.—Each application for approval of 

22 an electronic surveillance program under this title (includ23 ing resubmission or application for reauthorization) 

24 shall— 


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1 ‘‘(1) be made by the Attorney General or his 

2 designee; 

3 ‘‘(2) include a statement of the authority con4 ferred on the Attorney General by the President of 

5 the United States; 

6 ‘‘(3) include a statement setting forth the legal 

7 basis for the conclusion by the Attorney General 

8 that the electronic surveillance program is consistent 

9 with the Constitution of the United States; 

10 ‘‘(4) certify that a significant purpose of the 

11 electronic surveillance program is to obtain foreign 

12 intelligence information or to protect against inter13 national terrorism; 

14 ‘‘(5) certify that the information sought cannot 

15 reasonably be obtained by normal investigative tech16 niques 

17 ‘‘(6) certify that the information sought cannot 

18 reasonably be obtained through an application under 

19 section 104; 

20 ‘‘(7) include a statement of the means and 

21 operational procedures by which the electronic sur22 veillance will be executed and effected; 

23 ‘‘(8) include an explanation of how the elec24 tronic surveillance program is reasonably designed to 


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1 ensure that the communications that are acquired 

2 are communications of or with— 

3 ‘‘(A) a foreign power that engages in inter4 national terrorism or activities in preparation 

5 therefor; 

6 ‘‘(B) an agent of a foreign power that en7 gages in international terrorism or activities in 

8 preparation therefor; 

9 ‘‘(C) a person reasonably believed to have 

10 communication with or be associated with a for11 eign power that engages in international ter12 rorism or activities in preparation therefor or 

13 an agent of a foreign power that engages in 

14 international terrorism or activities in prepara15 tion therefor; or 

16 ‘‘(D) a foreign power that poses an immi17 nent threat of attack likely to cause death, seri18 ous injury, or substantial economic damage to 

19 the United States, or an agent of a foreign 

20 power thereof; 

21 ‘‘(9) include a statement of the proposed mini22 mization procedures; 

23 ‘‘(9) include a statement of the proposed mini24 mization procedures; 


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1 ‘‘(10) if the electronic surveillance program that 

2 is the subject of the application was initiated prior 

3 to the date the application was submitted, specify 

4 the date that the program was initiated; 

5 ‘‘(11) include a description of all previous appli6 cations that have been made under this title involv7 ing the electronic surveillance program in the appli8 cation (including the minimization procedures and 

9 the means and operational procedures proposed) and 

10 the decision on each previous application; and 

11 ‘‘(12) include a statement of facts concerning 

12 the implementation of the electronic surveillance pro13 gram described in the application, including, for any 

14 period of operation of the program authorized not 

15 less than 90 days prior to the date of submission of 

16 the application— 

17 ‘‘(A) the minimization procedures imple18 mented; and 

19 ‘‘(B) the means and operational procedures 

20 by which the electronic surveillance was exe21 cuted and effected. 

22 ‘‘(b) ADDITIONAL INFORMATION.—The Foreign In23 telligence Surveillance Court may require the Attorney 

24 General to furnish such other information as may be nec25 essary to make a determination under section 704.’’. 


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1 SEC. 206. APPROVAL OF ELECTRONIC SURVEILLANCE PRO2 GRAMS. 

3 Title VII of the Foreign Intelligence Surveillance Act 

4 18 of 1978, as amended by section 5, is amended by add5 ing at the end the following: 

6 ‘‘SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE 

7 PROGRAMS. 

8 ‘‘(a) NECESSARY FINDINGS.—Upon receipt of an ap9 plication under section 703, the Foreign Intelligence Sur10 veillance Court shall enter an ex parte order as requested, 

11 or as modified, approving the electronic surveillance pro12 gram if it finds that— 

13 ‘‘(1) the President has authorized the Attorney 

14 General to make the application for electronic sur15 veillance for foreign intelligence information or to 

16 protect against international terrorism; 

17 ‘‘(2) approval of the electronic surveillance pro18 gram in the application is consistent with the Con19 stitution of the United States; 

20 ‘‘(3) the electronic surveillance program is rea21 sonably designed to ensure that the communications 

22 that are acquired are communications of or with— 

23 ‘‘(A) a foreign power that engages in inter24 national terrorism or activities in preparation 

25 therefor; 


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1 ‘‘(B) an agent of a foreign power that is 

2 engaged in international terrorism or activities 

3 in preparation therefor; 

4 ‘‘(C) a person reasonably believed to have 

5 communication with or be associated with a for6 eign power that is engaged in international ter7 rorism or activities in preparation therefor or 

8 an agent of a foreign power that is engaged in 

9 international terrorism or activities in prepara10 tion therefor; or 

11 ‘‘(D) a foreign power that poses an immi12 nent threat of attack likely to cause death, seri13 ous injury, or substantial economic damage to 

14 the United States, or an agent of a foreign 

15 power thereof; 

16 ‘‘(4) the proposed minimization procedures 

17 meet the definition of minimization procedures 

18 under section 101(h); and 

19 ‘‘(5) the application contains all statements and 

20 certifications required by section 703. 

21 ‘‘(b) CONSIDERATIONS.—In considering the constitu22 tionality of the electronic surveillance program under sub23 section (a), the Foreign Intelligence Surveillance Court 

24 may consider— 


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1 ‘‘(1) whether the electronic surveillance pro2 gram has been implemented in accordance with the 

3 proposal by the Attorney General, by comparing— 

4 ‘‘(A) the minimization procedures proposed 

5 with the minimization procedures actually im6 plemented; 

7 ‘‘(B) the nature of the information sought 

8 with the nature of the information actually ob9 tained; and 

10 ‘‘(C) the means and operational procedures 

11 proposed with the means and operational proce12 dures actually implemented; and 

13 ‘‘(2) whether foreign intelligence information 

14 has been obtained through the electronic surveillance 

15 program. 

16 ‘‘(c) CONTENTS OF ORDER.—An order approving an 

17 electronic surveillance program under this section shall di18 rect— 

19 ‘‘(1) that the minimization procedures be fol20 lowed; 

21 ‘‘(2) that, upon the request of the applicant, 

22 specified communication or other common carriers, 

23 landlords, custodians, or other specified persons, fur24 nish the applicant forthwith with all information, fa25 cilities, or technical assistance necessary to underVerDate Aug 31 2005 02:16 Sep 23, 2006 Jkt 049200 PO 00000 Frm 00115 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929

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1 take the electronic surveillance program in such a 

2 manner as will protect its secrecy and produce a 

3 minimum of interference with the services that such 

4 carriers, landlords, custodians, or other persons are 

5 providing potential targets of the electronic surveil6 lance program; 

7 ‘‘(3) that any records concerning the electronic 

8 surveillance program or the aid furnished or retained 

9 by such carriers, landlords, custodians, or other per10 sons are maintained under security procedures ap11 proved by the Attorney General and the Director of 

12 National Intelligence; and 

13 ‘‘(4) that the applicant compensate, at the pre14 vailing rate, such carriers, landlords, custodians, or 

15 other persons for furnishing such aid.’’. 

16 SEC. 207. CONGRESSIONAL OVERSIGHT. 

17 Title VII of the Foreign Intelligence Surveillance Act 

18 of 1978, as amended by section 6, is amended by adding 

19 at the end the following: 

20 ‘‘SEC. 705. CONGRESSIONAL OVERSIGHT. 

21 ‘‘(a) IN GENERAL.—Not less often than every 180 

22 days, the Attorney General shall submit to the congres23 sional intelligence committees a report in classified form 

24 on the activities during the previous 180-day period under 


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1 any electronic surveillance program authorized under this 

2 title. 

3 ‘‘(b) CONTENTS.—Each report submitted under sub4 section (a) shall provide, with respect to the previous 180- 

5 day period, a description of— 

6 ‘‘(1) the minimization procedures implemented; 

7 ‘‘(2) the means and operational procedures by 

8 which the electronic surveillance program was exe9 cuted and effected; 

10 ‘‘(3) significant decisions of the Foreign Intel11 ligence Surveillance Court on applications made 

12 under section 703; 

13 ‘‘(4) the total number of applications made for 

14 orders approving electronic surveillance programs 

15 pursuant to this title; and 

16 ‘‘(5) the total number of orders applied for that 

17 have been granted, modified, or denied. 

18 ‘‘(c) RULE OF CONSTRUCTION.—Nothing in this title 

19 shall be construed to limit the authority or responsibility 

20 of any committee of either House of Congress to obtain 

21 such information as such committee may need to carry 

22 out its respective functions and duties.’’. 


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1 SEC. 208. CLARIFICATION OF THE FOREIGN INTELLIGENCE 

2 SURVEILLANCE ACT OF 1978. 

3 (a) REPEAL.—Sections 111, 309, and 404 of the 

4 Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 

5 1811, 1829, and 1844) are repealed. 

6 (b) CLARIFYING AMENDMENTS.— 

7 (1) TITLE 18.—Section 2511(2) of title 18, 

8 United States Code, is amended— 

9 (A) in paragraph (e), by striking ‘‘, as de10 fined in section 101’’ and all that follows 

11 through the end of the paragraph and inserting 

12 the following: ‘‘under the Constitution or the 

13 Foreign Intelligence Surveillance Act of 1978.’’; 

14 and 

15 (B) in paragraph (f), by striking ‘‘from 

16 international or foreign communications,’’ and 

17 all that follows through the end of the para18 graph and inserting ‘‘that is authorized under 

19 a Federal statute or the Constitution of the 

20 United States.’’. 

21 (2) FISA.—Section 109 of the Foreign Intel22 ligence Surveillance Act of 1978 (50 U.S.C. 1809) 

23 is amended— 

24 (A) in subsection (a)— 

25 (i) in paragraph (1)— 


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1 (I) by striking ‘‘authorized by 

2 statute’’ and inserting ‘‘authorized by 

3 law’’; and 

4 (II) by striking ‘‘or’’ at the end; 

5 (ii) in paragraph (2)— 

6 (I) by striking ‘‘authorized by 

7 statute’’ and inserting ‘‘authorized by 

8 law’’; and 

9 (II) by striking the period and 

10 inserting ‘‘; or’’; and 

11 (iii) by adding at the end the fol12 lowing: 

13 ‘‘(3) and knowingly discloses or uses informa14 tion obtained under color of law by electronic sur15 veillance in a manner or for a purpose not author16 ized by law.’’; and 

17 (B) in subsection (c)— 

18 (i) by striking ‘‘$10,000’’ and insert19 ing ‘‘$100,000’’; and 

20 (ii) by striking ‘‘five years’’ and in21 serting ‘‘15 years’’. 

22 SEC. 209. MODERNIZING AMENDMENTS TO FISA. 

23 (a) REFERENCE.—In this section, a reference to 

24 ‘‘FISA’’ shall mean the Foreign Intelligence Surveillance 

25 Act of 1978 (50 U.S.C. 1801 et seq.). 


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1 (b) DEFINITIONS.—Section 101 of FISA (50 U.S.C. 

2 1801) is amended— 

3 (1) in subsection (b)(1)— 

4 (A) in subparagraph (C), by striking ‘‘or’’ 

5 after the semicolon; and 

6 (B) by adding at the end the following: 

7 ‘‘(D) otherwise is reasonably expected to 

8 possess, control, transmit, or receive foreign in9 telligence information while that person is in 

10 the United States, provided that the official 

11 making the certification required by section 

12 104(a)(6) deems such foreign intelligence infor13 mation to be significant; or’’; 

14 (2) by striking subsection (f) and inserting the 

15 following: 

16 ‘‘(f) ‘Electronic surveillance’ means— 

17 ‘‘(1) the installation or use of an electronic, me18 chanical, or other surveillance device for acquiring 

19 information by intentionally directing the surveil20 lance at a particular known person who is reason21 ably believed to be in the United States under cir22 cumstances in which that person has a reasonable 

23 expectation of privacy and a warrant would be re24 quired for law enforcement purposes; or 


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1 ‘‘(2) the intentional acquisition of the contents 

2 of any communication under circumstances in which 

3 a person has a reasonable expectation of privacy and 

4 a warrant would be required for law enforcement 

5 purposes, and if both the sender and all intended re6 cipients are reasonably believed to be located within 

7 the United States.’’; 

8 (3) in subsection (h), by striking paragraph (4) 

9 and inserting the following: 

10 ‘‘(4) notwithstanding paragraphs (1), (2), and 

11 (3), with respect to any electronic surveillance ap12 proved pursuant to section 102 or 704, procedures 

13 that require that no contents of any communication 

14 originated or sent by a United States person shall 

15 be disclosed, disseminated, used or retained for 

16 longer than 7 days unless a court order under sec17 tion 105 is obtained or unless the Attorney General 

18 determines that the information indicates a threat of 

19 death or serious bodily harm to any person.’’. 

20 (4) by striking subsection (l); and 

21 (5) by striking subsection (n) and inserting the 

22 following: 

23 ‘‘(n) ‘contents’, when used with respect to a commu24 nication, includes any information concerning the sub25 stance, symbols, sounds, words, purport, or meaning of a 


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1 communication, and does not include dialing, routing, ad2 dressing, or signaling information.’’. 

3 (c) ELECTRONIC SURVEILLANCE AUTHORIZATION.— 

4 Section 102 of FISA (50 U.S.C. 1802) is amended to read 

5 as follows: 

6 ‘‘ELECTRONIC SURVEILLANCE AUTHORIZATION WITHOUT

7 COURT ORDER; CERTIFICATION BY ATTORNEY GEN8 ERAL; REPORTS TO CONGRESSIONAL COMMITTEES; 

9 TRANSMITTAL UNDER SEAL; DUTIES AND COM10 PENSATION OF COMMUNICATION COMMON CARRIER; 

11 APPLICATIONS; JURISDICTION OF COURT

12 ‘‘SEC. 102. (a)(1) Notwithstanding any other law, the 

13 President through the Attorney General, may authorize 

14 electronic surveillance without a court order under this 

15 title to acquire foreign intelligence information for periods 

16 of up to 1 year if the Attorney General certifies in writing 

17 under oath that the electronic surveillance is directed at— 

18 ‘‘(A)(i) the acquisition of the contents of com19 munications of foreign powers, as defined in para20 graph (1), (2), or (3) of section 101(a), or a person 

21 other than a United States person acting as an 

22 agent of a foreign power, as defined in section 

23 101(b)(1)(A) or (B); or 

24 ‘‘(ii) the acquisition of technical intelligence, 

25 other than the spoken communications of individ26 uals, from property or premises under the open and 


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1 exclusive control of a foreign power, as defined in 

2 paragraph (1), (2), or (3) of section 101(a); and 

3 ‘‘(B) the proposed minimization procedures 

4 with respect to such surveillance meet the definition 

5 of minimization procedures under section 101(h); 

6 if the Attorney General reports such minimization proce7 dures and any changes thereto to the Select Committee 

8 on Intelligence of the Senate and the Permanent Select 

9 Committee on Intelligence of the House of Representatives 

10 at least 30 days prior to their effective date, unless the 

11 Attorney General determines immediate action is required 

12 and notifies the committees immediately of such minimiza13 tion procedures and the reason for their becoming effective 

14 immediately. 

15 ‘‘(2) An electronic surveillance authorized by this 

16 subsection may be conducted only in accordance with the 

17 Attorney General’s certification and the minimization pro18 cedures. The Attorney General shall assess compliance 

19 with such procedures and shall report such assessments 

20 to the Select Committee on Intelligence of the Senate and 

21 the Permanent Select Committee on Intelligence of the 

22 House of Representatives under section 108(a). If an elec23 tronic surveillance authorized by this subsection is di24 rected at an agent of a foreign power, the Attorney Gen25 eral’s report assessing compliance with the minimization 


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1 procedures shall also include a statement of the facts and 

2 circumstances relied upon to justify the belief that the tar3 get of the electronic surveillance is an agent of a foreign 

4 power. 

5 ‘‘(3) The Attorney General shall immediately trans6 mit under seal to the court established under section 

7 103(a) a copy of any certification under this subsection. 

8 Such certification shall be maintained under security 

9 measures established by the Chief Justice with the concur10 rence of the Attorney General, in consultation with the 

11 Director of National Intelligence, and shall remain sealed 

12 unless— 

13 ‘‘(A) an application for a court order with re14 spect to the surveillance is made under section 104; 

15 or 

16 ‘‘(B) the certification is necessary to determine 

17 the legality of the surveillance under section 106(f). 

18 ‘‘(b)(1) Notwithstanding any other provision of law, 

19 the President, through the Attorney General, may author20 ize the acquisition of foreign intelligence information for 

21 periods of up to 1 year concerning a person reasonably 

22 believed to be outside the United States if the Attorney 

23 General certifies in writing under oath that he has deter24 mined that— 


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1 ‘‘(A) the acquisition does not constitute elec2 tronic surveillance as defined in section 101(f); 

3 ‘‘(B) the acquisition involves obtaining the for4 eign intelligence information from or with the assist5 ance of a wire or electronic communications service 

6 provider, custodian, or other person (including any 

7 officer, employee, agent, or other specified person 

8 thereof) who has access to wire or electronic commu9 nications, either as they are transmitted or while 

10 they are stored, or equipment that is being or may 

11 be used to transmit or store such communications; 

12 ‘‘(C) a significant purpose of the acquisition is 

13 to obtain foreign intelligence information; and 

14 ‘‘(D) the minimization procedures to be em15 ployed with respect to such acquisition activity meet 

16 the definition of minimization procedures under sec17 tion 101(h). 

18 ‘‘(2) Such certification need not identify the specific 

19 facilities, places, premises, or property at which the acqui20 sition will be directed. 

21 ‘‘(3) An acquisition undertaken pursuant to this sub22 section may be conducted only in accordance with the At23 torney General’s certification and the minimization proce24 dures adopted by the Attorney General. The Attorney 

25 General shall assess compliance with such procedures and 


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1 shall report such assessments to the Select Committee on 

2 Intelligence of the Senate and the Permanent Select Com3 mittee on Intelligence of the House of Representatives 

4 under section 108(a). 

5 ‘‘(4) The Attorney General shall immediately trans6 mit under seal to the court established under section 

7 103(a) a copy of any certification of the Attorney General 

8 under this subsection. Such certification shall be main9 tained under security measures established by the Chief 

10 Justice with the concurrence of the Attorney General, in 

11 consultation with the Director of National Intelligence, 

12 and shall remain sealed unless the certification is nec13 essary to determine the legality of the acquisition under 

14 subsection (o). 

15 ‘‘(c) With respect to the acquisition authorized under 

16 this section, the Attorney General may direct a specified 

17 person to— 

18 ‘‘(1) furnish the government forthwith all infor19 mation, facilities, and assistance necessary to accom20 plish the acquisition in such a manner as will protect 

21 its secrecy and produce a minimum of interference 

22 with the services that such person is providing to the 

23 target; and 

24 ‘‘(2) maintain under security procedures ap25 proved by the Attorney General and the Director of 


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1 National Intelligence any records concerning the ac2 quisition or the aid furnished that such person wish3 es to maintain. 

4 ‘‘(d) The government shall compensate, at the pre5 vailing rate, such specified person for furnishing the aid 

6 set forth in subsection (c). 

7 ‘‘(e) In the case of a failure to comply with a directive 

8 issued pursuant to this section, the Attorney General may 

9 invoke the aid of the court established under section 

10 103(a) to compel compliance with the directive. The court 

11 shall issue an order requiring the person or entity to com12 ply with the directive forthwith if it finds that the directive 

13 was issued in accordance with subsection (a) or (b) and 

14 is otherwise lawful. Any failure to obey the order of the 

15 court may be punished by the court as contempt thereof. 

16 Any process under this section may be served in any judi17 cial district in which the person or entity may be found. 

18 ‘‘(f)(1)(A) A person receiving an Attorney General di19 rective issued pursuant to this section may challenge the 

20 legality of that directive by filing a petition with the pool 

21 established by section 103(e)(1). 

22 ‘‘(B) The presiding judge shall immediately assign a 

23 petition to one of the judges serving in the pool established 

24 by section 103(e)(1). Not later than 24 hours after the 

25 assignment of such petition, the assigned judge shall conVerDate Aug 31 2005 03:16 Sep 23, 2006 Jkt 049200 PO 00000 Frm 00127 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929

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1 duct an initial review of the directive. If the assigned judge 

2 determines that the petition is frivolous, the assigned 

3 judge shall immediately deny the petition and affirm the 

4 directive or any part thereof that is the subject of the peti5 tion. If the assigned judge determines the petition is not 

6 frivolous, the assigned judge shall within 72 hours con7 sider the petition in accordance with the procedures estab8 lished under section 103(e)(2) and provide a written state9 ment for the record of the reasons for any determination 

10 under this subsection. 

11 ‘‘(2) A judge considering a petition to modify or set 

12 aside a directive may grant such petition only if the judge 

13 finds that such directive does not meet the requirements 

14 of this section or is otherwise unlawful. If the judge does 

15 not modify or set aside the directive, the judge shall imme16 diately affirm such directive, and order the recipient to 

17 comply therewith. 

18 ‘‘(3) Any directive not explicitly modified or set aside 

19 consistent with this subsection shall remain in full effect. 

20 ‘‘(g) A petition for review of a decision under sub21 section (f) to affirm, modify, or set aside a directive by 

22 the Government or any person receiving such directive 

23 shall be made within 7 days of issuance of the decision 

24 required by subsection (f) to the court of review estab25 lished under section 103(b), which shall have jurisdiction 


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1 to consider such petitions. The court of review shall pro2 vide for the record a written statement of the reasons for 

3 its decision and, on petition by the Government or any 

4 person receiving such directive for a writ of certiorari, the 

5 record shall be transmitted under seal to the Supreme 

6 Court of the United States, which shall have jurisdiction 

7 to review such decision. 

8 ‘‘(h) Judicial proceedings under this section shall be 

9 concluded as expeditiously as possible. The record of pro10 ceedings, including petitions filed, orders granted, and 

11 statements of reasons for decision, shall be maintained 

12 under security measures established by the Chief Justice 

13 of the United States, in consultation with the Attorney 

14 General and the Director of National Intelligence. 

15 ‘‘(i) All petitions under this section shall be filed 

16 under seal. In any proceedings under this section, the 

17 court shall, upon request of the Government, review ex 

18 parte and in camera any Government submission, or por19 tions thereof, which may include classified information. 

20 ‘‘(j) No cause of action shall lie in any court against 

21 any provider of a communication service or other person 

22 (including any officer, employee, agent, or other specified 

23 person thereof) for furnishing any information, facilities, 

24 or assistance in accordance with a directive under sub25 section (a) or (b). 


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1 ‘‘(k) Information acquired pursuant to an Attorney 

2 General authorization under this section concerning any 

3 United States person may be used and disclosed by Fed4 eral officers and employees without the consent of the 

5 United States person only in accordance with the mini6 mization procedures required by subsection (a) or (b), as 

7 applicable. No otherwise privileged communication ob8 tained in accordance with, or in violation of, the provisions 

9 of this section shall lose its privileged character. No infor10 mation from an acquisition under this section may be used 

11 or disclosed by Federal officers or employees except for 

12 lawful purposes. 

13 ‘‘(l) No information acquired pursuant to this section 

14 shall be disclosed for law enforcement purposes unless 

15 such disclosure is accompanied by a statement that such 

16 information, or any information derived therefrom, may 

17 only be used in a criminal proceeding with the advance 

18 authorization of the Attorney General. 

19 ‘‘(m) Whenever the Government intends to enter into 

20 evidence or otherwise use or disclose in any trial, hearing, 

21 or other proceeding in or before any court, department, 

22 officer, agency, regulatory body, or other authority of the 

23 United States, against an aggrieved person, any informa24 tion obtained or derived from an acquisition under this 

25 section, the Government shall, prior to the trial, hearing, 


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1 or other proceeding or at a reasonable time prior to an 

2 effort to so disclose or so use that information or submit 

3 it in evidence, notify the aggrieved person and the court 

4 or other authority in which the information is to be dis5 closed or used that the Government intends to so disclose 

6 or so use such information. 

7 ‘‘(n) Whenever any State or political subdivision 

8 thereof intends to enter into evidence or otherwise use or 

9 disclose in any trial, hearing, or other proceeding in or 

10 before any court, department, officer, agency, regulatory 

11 body, or other authority of a State or a political subdivi12 sion thereof, against an aggrieved person any information 

13 obtained or derived from an acquisition under this section, 

14 the State or political subdivision thereof shall notify the 

15 aggrieved person, the court or other authority in which 

16 the information is to be disclosed or used, and the Attor17 ney General that the State or political subdivision thereof 

18 intends to so disclose or so use such information. 

19 ‘‘(o) Any person against whom evidence obtained or 

20 derived from an acquisition authorized pursuant to this 

21 section to which he is an aggrieved person is to be, or 

22 has been, introduced or otherwise used or disclosed in any 

23 trial, hearing, or other proceeding in or before any court, 

24 department, officer, agency, regulatory body, or other au25 thority of the United States, a State, or a political subdiviVerDate Aug 31 2005 03:16 Sep 23, 2006 Jkt 049200 PO 00000 Frm 00131 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929

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1 sion thereof, may move to suppress the evidence obtained 

2 or derived from such acquisition on the grounds that— 

3 ‘‘(1) the information was unlawfully acquired; 

4 or 

5 ‘‘(2) the acquisition was not made in conformity 

6 with an order of authorization or approval. 

7 Such a motion shall be made before the trial, hearing, or 

8 other proceeding unless there was no opportunity to make 

9 such a motion or the person was not aware of the grounds 

10 of the motion. 

11 ‘‘(p) Whenever a court or other authority is notified 

12 pursuant to subsection (m) or (n), whenever a motion is 

13 made pursuant to subsection (o), or whenever any motion 

14 or request is made by an aggrieved person pursuant to 

15 any other statute or rule of the United States or any State 

16 before any court or other authority of the United States 

17 or any State to discover or obtain an Attorney General 

18 directive or other materials relating to the acquisition au19 thorized under this section or to discover, obtain, or sup20 press evidence or information obtained or derived from the 

21 acquisition authorized under this section, the United 

22 States district court or, where the motion is made before 

23 another authority, the United States district court in the 

24 same district as the authority, shall, notwithstanding any 

25 other law, if the Attorney General files an affidavit under 


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1 oath that disclosure or an adversary hearing would harm 

2 the national security of the United States, review in cam3 era and ex parte the directive, and such other materials 

4 relating to the acquisition as may be necessary to deter5 mine whether the acquisition authorized under this section 

6 was lawfully authorized and conducted. In making this de7 termination, the court may disclose to the aggrieved per8 son, under appropriate security procedures and protective 

9 orders, portions of the directive or other materials relating 

10 to the acquisition only where such disclosure is necessary 

11 to make an accurate determination of the legality of the 

12 acquisition. 

13 ‘‘(q) If the United States district court pursuant to 

14 subsection (o) determines that the acquisition authorized 

15 under this section was not lawfully authorized or con16 ducted, it shall, in accordance with the requirements of 

17 law, suppress the evidence which was unlawfully obtained 

18 or derived or otherwise grant the motion of the aggrieved 

19 person. If the court determines that such acquisition was 

20 lawfully authorized and conducted, it shall deny the mo21 tion of the aggrieved person except to the extent that due 

22 process requires discovery or disclosure. 

23 ‘‘(r) Orders granting motions or requests under sub24 section (o), decisions under this section that an acquisition 

25 was not lawfully authorized or conducted, and orders of 


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1 the United States district court requiring review or grant2 ing disclosure of directives or other materials relating to 

3 such acquisition shall be final orders and binding upon 

4 all courts of the United States and the several States ex5 cept a United States court of appeals and the Supreme 

6 Court. 

7 ‘‘(s) Federal officers who acquire foreign intelligence 

8 information under this section may consult with Federal 

9 law enforcement officers or law enforcement personnel of 

10 a State or political subdivision of a State (including the 

11 chief executive officer of that State or political subdivision 

12 who has the authority to appoint or direct the chief law 

13 enforcement officer of that State or political subdivision) 

14 to coordinate efforts to investigate or protect against— 

15 ‘‘(1) actual or potential attack or other grave 

16 hostile acts of a foreign power or an agent of a for17 eign power; 

18 ‘‘(2) sabotage, international terrorism, or the 

19 development or proliferation of weapons of mass de20 struction by a foreign power or an agent of a foreign 

21 power; or 

22 ‘‘(3) clandestine intelligence activities by an in23 telligence service or network of a foreign power or by 

24 an agent of a foreign power. 


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1 ‘‘(t) Coordination authorized by subsection (s) shall 

2 not preclude the certification required by subsection (a) 

3 or (b), as applicable. 

4 ‘‘(u) RETENTION OF DIRECTIVES AND ORDERS.—Di5 rectives made and orders granted under this section shall 

6 be retained for a period of at least 10 years from the date 

7 when they were made.’’. 

8 (d) DESIGNATION OF JUDGES.—Section 103 of FISA 

9 (50 U.S.C. 1803) is amended— 

10 (1) in subsection (a), by inserting, ‘‘at least’’ 

11 before ‘‘seven of the United States judicial circuits’’; 

12 and 

13 (2) at the end by adding the following new sub14 section: 

15 ‘‘(g) Applications for a court order under this title 

16 are authorized if the President has, by written authoriza17 tion, empowered the Attorney General to approve applica18 tions to the court having jurisdiction under this section, 

19 and a judge to whom an application is made may, notwith20 standing any other law, grant an order, in conformity with 

21 section 105, approving electronic surveillance of a foreign 

22 power or an agent of a foreign power for the purpose of 

23 obtaining foreign intelligence information.’’. 

24 (e) APPLICATIONS FOR COURT ORDERS.—Section 

25 104 of FISA (50 U.S.C. 1804) is amended— 


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1 (1) in subsection (a), by striking paragraphs 

2 (6) through (11) and inserting the following: 

3 ‘‘(6) a certification or certifications by the As4 sistant to the President for National Security Af5 fairs or an executive branch official authorized by 

6 the President to conduct electronic surveillance for 

7 foreign intelligence purposes— 

8 ‘‘(A) that the certifying official deems the 

9 information sought to be foreign intelligence in10 formation; 

11 ‘‘(B) that a significant purpose of the sur12 veillance is to obtain foreign intelligence infor13 mation; 

14 ‘‘(C) that such information cannot reason15 ably be obtained by normal investigative tech16 niques; and 

17 ‘‘(D) including a statement of the basis for 

18 the certification that— 

19 ‘‘(i) the information sought is the type 

20 of foreign intelligence information des21 ignated; and 

22 ‘‘(ii) such information cannot reason23 ably be obtained by normal investigative 

24 techniques; 


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1 ‘‘(7) a statement of the period of time for which 

2 the electronic surveillance is required to be main3 tained, and if the nature of the intelligence gath4 ering is such that the approval of the use of elec5 tronic surveillance under this title should not auto6 matically terminate when the described type of infor7 mation has first been obtained, a description of facts 

8 supporting the belief that additional information of 

9 the same type will be obtained thereafter; 

10 ‘‘(8) a summary description of the nature of the 

11 information sought and the type of communications 

12 or activities to be subject to the surveillance; 

13 ‘‘(9) a summary statement of the facts con14 cerning all previous applications that have been 

15 made to any judge under this title involving any of 

16 the persons, facilities, or places specified in the ap17 plication, and the action taken on each previous ap18 plication; and 

19 ‘‘(10) a summary statement of the means by 

20 which the surveillance will be effected and a state21 ment whether physical entry is required to effect the 

22 surveillance.’’; 

23 (2) by striking subsection (b); 

24 (3) by redesignating subsections (c) through (e) 

25 as subsections (b) through (d), respectively; and 


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1 (4) in subsection (d)(1)(A), as redesignated by 

2 paragraph (3), by inserting after ‘‘Secretary of 

3 State’’ inserting ‘‘Director of the Central Intel4 ligence Agency’’. 

5 (f) ISSUANCE OF ORDER.—Section 105 of FISA (50 

6 U.S.C. 1805) is amended— 

7 (1) in subsection (a), by— 

8 (A) striking paragraph (1); and 

9 (B) redesignating paragraphs (2) through 

10 (5) as paragraphs (1) through (4), respectively; 

11 (2) by striking paragraph (1) of subsection (c) 

12 and inserting the following: 

13 ‘‘(1) An order approving an electronic surveil14 lance under this section shall specify— 

15 ‘‘(A) the identity, if known, or a descrip16 tion of the target of the electronic surveillance 

17 identified or described in the application pursu18 ant to section 104(a)(3); 

19 ‘‘(B) the nature and location of each of the 

20 facilities or places at which the electronic sur21 veillance will be directed, if known; 

22 ‘‘(C) the period of time during which the 

23 electronic surveillance is approved; 


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1 ‘‘(D) the type of information sought to be 

2 acquired and the type of communications or ac3 tivities to be subjected to the surveillance; and 

4 ‘‘(E) the means by which the electronic 

5 surveillance will be effected and whether phys6 ical entry will be used to effect the surveil7 lance.’’; 

8 (3) by striking subsection (d) and inserting the 

9 following: 

10 ‘‘(d) Each order under this section shall specify the 

11 type of electronic surveillance involved, including whether 

12 physical entry is required.’’; 

13 (4) by striking paragraph (2) of subsection (e) 

14 and inserting the following: 

15 ‘‘(2) Extensions of an order issued under this title 

16 may be granted on the same basis as an original order 

17 upon an application for an extension and new findings 

18 made in the same manner as required for an original order 

19 and may be for a period not longer than the court deter20 mines to be reasonable or 1 year, whichever is less.’’; 

21 (5) by striking subsection (f) and inserting the 

22 following: 

23 ‘‘(f)(1) Notwithstanding any other provision of this 

24 title, when an executive branch officer appointed by the 

25 President with the advice and consent of the Senate who 


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1 is authorized by the President to conduct electronic sur2 veillance reasonably determines that— 

3 ‘‘(A) an emergency situation exists with respect 

4 to the employment of electronic surveillance to ob5 tain foreign intelligence information before an order 

6 authorizing such surveillance can with due diligence 

7 be obtained; and 

8 ‘‘(B) the factual basis for issuance of an order 

9 under this title to approve such surveillance exists; 

10 that official may authorize the emergency employment of 

11 electronic surveillance in accordance with paragraph (2). 

12 ‘‘(2) Under paragraph (1), the following require13 ments shall be satisfied: 

14 ‘‘(A) The Attorney General shall be informed of 

15 the emergency electronic surveillance. 

16 ‘‘(B) A judge having jurisdiction under section 

17 103 shall be informed by the Attorney General or 

18 his designee as soon as practicable following such 

19 authorization that the decision has been made to 

20 employ emergency electronic surveillance. 

21 ‘‘(C) An application in accordance with this 

22 title shall be made to that judge or another judge 

23 having jurisdiction under section 103 as soon as 

24 practicable, but not more than 7 days after such 

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1 cial order approving such electronic surveillance, the 

2 surveillance shall terminate when the information 

3 sought is obtained, when the application for the 

4 order is denied, or after the expiration of 7 days 

5 from the time of emergency authorization, whichever 

6 is earliest. In the event that such application for ap7 proval is denied, or in any other case where the elec8 tronic surveillance is terminated and no order is 

9 issued approving the surveillance, no information ob10 tained or evidence derived from such surveillance 

11 shall be received in evidence or otherwise disclosed 

12 in any trial, hearing, or other proceeding in or be13 fore any court, grand jury, department, office, agen14 cy, regulatory body, legislative committee, or other 

15 authority of the United States, a State, or political 

16 subdivision thereof, and no information concerning 

17 any United States person acquired from such sur18 veillance shall subsequently be used or disclosed in 

19 any other manner by Federal officers or employees 

20 without the consent of such person, except with the 

21 approval of the Attorney General if the information 

22 indicates a threat of death or serious bodily harm to 

23 any person. A denial of the application made under 

24 this subsection may be reviewed as provided in sec25 tion 103. 


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1 ‘‘(D) The official authorizing the emergency 

2 employment of electronic surveillance shall require 

3 that the minimization procedures required by this 

4 title for the issuance of a judicial order be fol5 lowed.’’; and 

6 (6) in subsection (i)— 

7 (A) by striking ‘‘a wire or’’ and inserting 

8 ‘‘any’’; 

9 (B) by striking ‘‘chapter’’ and inserting 

10 ‘‘title’’; and 

11 (C) by adding at the end ‘‘, or in response 

12 to certification by the Attorney General or his 

13 designee seeking information, facilities, or tech14 nical assistance from such person under section 

15 102 of this title’’. 

16 (g) USE OF INFORMATION.—Section 106 of FISA 

17 (50 U.S.C. 1806) is amended— 

18 (1) in subsection (i)— 

19 (A) by striking ‘‘radio’’; and 

20 (B) by inserting ‘‘contain foreign intel21 ligence information or’’ after ‘‘the Attorney 

22 General determines that the contents’’ inserting 

23 ‘‘contain foreign intelligence information or’’; 

24 and 


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1 (2) in subsection (k), by striking ‘‘1804(a)(7)’’ 

2 and inserting ‘‘104(a)(6)’’. 

3 (h) CONGRESSIONAL OVERSIGHT.—Section 108 of 

4 FISA (50 U.S.C. 1808) is amended by adding at the end 

5 the following: 

6 ‘‘(c) DOCUMENT MANAGEMENT SYSTEM FOR APPLI7 CATIONS FOR ORDERS APPROVING ELECTRONIC SURVEIL8 LANCE.— 

9 ‘‘(1) SYSTEM PROPOSED.—The Attorney Gen10 eral and Director of National Intelligence shall, in 

11 consultation with the Director of the Federal Bu12 reau of Investigation, the Director of the National 

13 Security Agency, the Director of the Central Intel14 ligence Agency, and the court established under sec15 tion 103(b), conduct a feasibility study to develop 

16 and implement a secure, classified document man17 agement system that permits the prompt prepara18 tion, modification, and review by appropriate per19 sonnel of the Department of Justice, the Federal 

20 Bureau of Investigation, the National Security 

21 Agency, and other applicable elements of the United 

22 States Government of applications under section 104 

23 before their submittal to that court. 

24 ‘‘(2) SCOPE OF SYSTEM.—The document man25 agement system proposed in paragraph (1) shall— 


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1 ‘‘(A) permit and facilitate the prompt sub2 mittal of applications and all other matters, in3 cluding electronic filings, to the court estab4 lished under section 103(b) under section 104 

5 or 105(g)(5); and 

6 ‘‘(B) permit and facilitate the prompt 

7 transmittal of rulings of that court to personnel 

8 submitting applications described in paragraph 

9 (1).’’. 

10 (i) AMENDMENTS TO FISA TITLE I RELATING TO

11 WEAPONS OF MASS DESTRUCTION.— 

12 (1) Section 101 of FISA, as amended by sub13 section (b) of this section, is further amended— 

14 (A) in subsection (b)(1)— 

15 (i) by striking ‘‘or’’ at the end of sub16 paragraph (D); 

17 (ii) by redesignating subparagraph 

18 (E) as subparagraph (F); and 

19 (iii) by inserting after subparagraph 

20 (D) the following new subparagraph (E): 

21 ‘‘(E) engages in the development or pro22 liferation of weapons of mass destruction, or ac23 tivities in preparation therefor; or;’’; 

24 (B) in subsection (b)(2)(C), by striking 

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1 serting ‘‘sabotage, international terrorism, or 

2 the development or proliferation of weapons of 

3 mass destruction’’; and 

4 (C) by inserting after subsection (k) the 

5 following new subsection (l): 

6 ‘‘(l) ‘Weapon of mass destruction’ means— 

7 ‘‘(1) any destructive device (as that term is de8 fined in section 921 of title 18, United States Code) 

9 that is intended or has the capability, to cause death 

10 or serious bodily injury to a significant number of 

11 people; 

12 ‘‘(2) any weapon that is designed or intended to 

13 cause death or serious bodily injury through the re14 lease, dissemination, or impact of toxic or poisonous 

15 chemicals, or their precursors; 

16 ‘‘(3) any weapon involving a biological agent, 

17 toxin, or vector (as those terms are defined in sec18 tion 178 of title 18, United States Code); or 

19 ‘‘(4) any weapon that is designed to release ra20 diation or radioactivity at a level dangerous to 

21 human life.’’. 

22 (2) Sections 101(e)(1)(B), 106(k)(1)(B), and 

23 305(k)(1)(B) of FISA are each amended by striking 

24 ‘‘sabotage or international terrorism’’ and inserting 

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1 ment or proliferation of weapons of mass destruc2 tion’’. 

3 (j) CONFORMING AMENDMENTS TO TITLES I AND III 

4 OF FISA TO ACCOMMODATE INTERNATIONAL MOVEMENTS

5 OF TARGETS.— 

6 (1) Section 105(e) of FISA is amended by add7 ing at the end the following new paragraph: 

8 ‘‘(4) An order issued under this section shall remain 

9 in force during the authorized period of surveillance not10 withstanding the absence of the target from the United 

11 States, unless the Government files a motion to extinguish 

12 the order and the court grants the motion.’’. 

13 (2) Section 304(d) of FISA is amended by add14 ing at the end the following new paragraph: 

15 ‘‘(4) An order issued under this section shall remain 

16 in force during the authorized period of physical search 

17 notwithstanding the absence of the target from the United 

18 States, unless the Government files a motion to extinguish 

19 the order and the court grants the motion.’’. 

20 SEC. 210. CONFORMING AMENDMENT TO TABLE OF CON21 TENTS. 

22 The table of contents for the Foreign Intelligence 

23 Surveillance Act of 1978 is amended— 

24 (1) by striking the item relating to section 102 

25 and inserting the following new item: 


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‘‘Sec. 102. Electronic surveillance authorization without court order; certification by attorney general; reports to congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of 

court.’’; 

1 (2) by striking the items relating to sections 

2 111, 309, and 404; and 

3 (3) by striking the items related to title VII and 

4 section 701 and inserting the following: 

‘‘TITLE VII—ELECTRONIC SURVEILLANCE PROGRAMS 

‘‘Sec. 701. Definitions. 

‘‘Sec. 702. Foreign intelligence surveillance court jurisdiction to review electronic surveillance programs. 

‘‘Sec. 703. Applications for approval of electronic surveillance programs. 

‘‘Sec. 704. Approval of electronic surveillance programs. 

‘‘Sec. 705. Congressional oversight. 

‘‘TITLE VIII—EFFECTIVE DATE 

‘‘Sec. 801. Effective date.’’. 

Æ 


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