II 

Calendar No. 605 

109TH CONGRESS 

2D SESSION S. 3886 

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 11, 2006 

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

which was read the first time 

SEPTEMBER 12, 2006 

Read the second time and placed on the calendar 

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 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Terrorist Tracking, 

5 Identification, and Prosecution Act of 2006’’. 


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1 TITLE I—MILITARY 

2 COMMISSIONS 

3 SEC. 101. SHORT TITLE. 

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

5 Act of 2006’’. 

6 SEC. 102. FINDINGS. 

7 Congress makes the following findings: 

8 (1) For more than 10 years, the al Qaeda ter9 rorist organization has waged an unlawful war of vi10 olence and terror against the United States and its 

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

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

13 bombing of the United States Embassies in Kenya 

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

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

16 Qaeda launched the most deadly foreign attack on 

17 United States soil in history. 19 al Qaeda operatives 

18 hijacked 4 commercial aircraft and piloted them into 

19 the World Trade Center Towers in New York City 

20 and the headquarters of the United States Depart21 ment of Defense at the Pentagon, and downed 

22 United Airlines Flight 93. The attack destroyed the 

23 Towers, severely damaged the Pentagon, and re24 sulted in the deaths of approximately 3,000 innocent 

25 people. 


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1 (2) Following the attacks on the United States 

2 on September 11th, Congress recognized the existing 

3 hostilities with al Qaeda and affiliated terrorist orga4 nizations and, by the Authorization for the Use of 

5 Military Force Joint Resolution (Public Law 107– 

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

7 under the Constitution to take action to deter and 

8 prevent acts of international terrorism against the 

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

10 all necessary and appropriate force against those na11 tions, organizations, or persons he determines 

12 planned, authorized, committed, or aided the ter13 rorist attacks that occurred on September 11, 2001 

14 . . . in order to prevent any future acts of inter15 national terrorism against the United States by such 

16 nations, organizations, or persons.’’. 

17 (3) The President’s authority to convene mili18 tary commissions arises from the Constitution’s vest19 ing in the President of the executive power and the 

20 power of Commander in Chief of the Armed Forces. 

21 As the Supreme Court of the United States recog22 nized in Madsen v. Kinsella, 343 U.S. 341, 346–48 

23 (1952), ‘‘[s]ince our nation’s earliest days, such 

24 commissions have been constitutionally recognized 

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1 sponsibilities related to war. . .. They have taken 

2 many forms and borne many names. Neither their 

3 procedure nor their jurisdiction has been prescribed 

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

5 the need that called it forth.’’. 

6 (4) In exercising the authority vested in the 

7 President by the Constitution and laws of the 

8 United States, including the Authorization for Use 

9 of Military Force Joint Resolution, and in accord10 ance with the law of war, the President has detained 

11 enemy combatants in the course of this armed con12 flict and issued the Military Order of November 13, 

13 2001, to govern the ‘‘Detention, Treatment, and 

14 Trial of Certain Noncitizens in the War Against 

15 Terrorism.’’ This Order authorized the Secretary of 

16 Defense to establish military commissions to try in17 dividuals subject to the Order for any offenses tri18 able by military commission that such individuals 

19 are alleged to have committed. 

20 (5) The Supreme Court in Hamdan v. Rums21 feld, 126 S. Ct. 2749 (2006), held that the military 

22 commissions established by the Department of De23 fense under the President’s Military Order of No24 vember 13, 2001, were not consistent with certain 

25 aspects of United States domestic law. The Congress 


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1 may by law, and does by enactment of this title, 

2 eliminate any deficiency of statutory authority to fa3 cilitate bringing terrorists with whom the United 

4 States is engaged in armed conflict to justice for vio5 lations of the law of war and other offenses triable 

6 by military commissions. The prosecution of such in7 dividuals by military commissions established and 

8 conducted consistent with this title fully complies 

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

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

11 the law of war. 

12 (6) The use of military commissions is particu13 larly important in this context because other alter14 natives, such as the use of courts-martial, generally 

15 are impracticable. The terrorists with whom the 

16 United States is engaged in armed conflict have 

17 demonstrated a commitment to the destruction of 

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

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

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

21 generally is neither practicable nor appropriate for 

22 combatants like al Qaeda terrorists to be tried be23 fore tribunals that include all of the procedures asso24 ciated with courts-martial. 


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1 (7) Many procedures for courts-martial would 

2 not be practicable in trying the unlawful enemy com3 batants for whom this title provides for trial by mili4 tary commission. For instance, court-martial pro5 ceedings would in certain circumstances— 

6 (A) compel the Government to share classi7 fied information with the accused, even though 

8 members of al Qaeda cannot be trusted with 

9 our Nation’s secrets and it would not be con10 sistent with the national security of the United 

11 States to provide them with access to classified 

12 information; 

13 (B) exclude the use of hearsay evidence 

14 even though such evidence often will be the best 

15 and most reliable evidence that the accused has 

16 committed a war crime. For example, many wit17 nesses in military commission trials are likely to 

18 be foreign nationals who are not amenable to 

19 process or may be precluded for national secu20 rity reasons from entering the United States or 

21 Guantanamo Bay to testify. Other witnesses 

22 may be unavailable because of military neces23 sity, incarceration, injury, or death. In short, 

24 applying the hearsay rules from the Manual for 

25 Courts Martial or from the Federal Rules of 


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1 Evidence would make it virtually impossible to 

2 bring terrorists to justice for their violations of 

3 the law of war; 

4 (C) specify speedy trials and technical 

5 rules for sworn and authenticated statements 

6 when, due to the exigencies of wartime, the 

7 United States cannot safely require members of 

8 the armed forces to gather evidence on the bat9 tlefield, including civilian eyewitness testimony, 

10 as though they were police officers. Nor can the 

11 United States divert members from the front 

12 lines and their duty stations to attend military 

13 commission proceedings. Therefore, strict com14 pliance with such rules for evidence gathered on 

15 the battlefield would be impracticable, given the 

16 preeminent focus on military operations and the 

17 chaotic nature of combat. 

18 (8) The exclusive judicial review for which this 

19 title, and the Detainee Treatment Act of 2005, pro20 vides is without precedent in the history of armed 

21 conflicts involving the United States, exceeds the 

22 scope of judicial review historically provided for by 

23 military commissions, and is channeled in a manner 

24 appropriately tailored to— 


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1 (A) the circumstances of the conflicts be2 tween the United States and international ter3 rorist organizations; and 

4 (B) the need to ensure fair treatment of 

5 those detained as enemy combatants, to mini6 mize the diversion of members of the armed 

7 forces from other wartime duties, and to protect 

8 the national security of the United States. 

9 (9) In early 2002, as memorialized in a memo10 randum dated February 7, 2002, the President de11 termined that common Article 3 of the Geneva Con12 ventions did not apply with respect to the United 

13 States conflict with al Qaeda because al Qaeda was 

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

15 Qaeda was an armed conflict of an international 

16 character. That was the interpretation of the United 

17 States prior to the Supreme Court’s decision in 

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

19 the contrary makes it appropriate to clarify the 

20 standards imposed by common Article 3. This title 

21 makes clear that the prohibitions against cruel, in22 human, and degrading treatment found in the De23 tainee Treatment Act of 2005 fully satisfy the obli24 gations of the United States with respect to the 

25 standards for detention and treatment established by 


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1 section 1 of common Article 3, except for those obli2 gations arising under paragraphs (b) and (d). In ad3 dition, the Act makes clear that the Geneva Conven4 tions are not a source of judicially enforceable indi5 vidual rights, thereby reaffirming that enforcement 

6 of the obligations imposed by the Conventions is a 

7 matter between the nations that are parties to them. 

8 SEC. 103. AUTHORIZATION FOR MILITARY COMMISSIONS. 

9 (a) IN GENERAL.—The President is authorized to es10 tablish military commissions for violations of the law of 

11 war and other offenses triable by military commissions as 

12 provided in section 104 of this Act (chapter 47A of title 

13 10). 

14 (b) CONSTRUCTION.—The authority granted in sub15 section (a) shall not be construed to limit the authority 

16 of the President under the Constitution of the United 

17 States or the laws thereof to establish military commis18 sions on the battlefield, in occupied territories, or in other 

19 armed conflicts should circumstances so require. 

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

21 commission established pursuant to subsection (a) shall 

22 have authority to impose upon any person found guilty 

23 after a proceeding under this title a sentence that is ap24 propriate to the offense or offenses for which there was 

25 a finding of guilt, which sentence may include death where 


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1 authorized by this title, imprisonment for life or a term 

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

3 lawful punishment or condition of punishment as the com4 mission shall determine to be proper. 

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

6 Defense shall be authorized to carry out a sentence of pun7 ishment decreed by a military commission pursuant to 

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

9 Secretary may prescribe. 

10 (e) ANNUAL REPORT ON TRIALS BY MILITARY COM11 MISSION.— 

12 (1) ANNUAL REPORT REQUIRED.—Not later 

13 than December 31 each year, the Secretary of De14 fense shall submit to the Armed Services Commit15 tees of the House of Representatives and the Senate 

16 an annual report on the conduct of trials by military 

17 commissions established pursuant to subsection (a) 

18 during such year. 

19 (2) FORM.—Each such report shall be sub20 mitted in unclassified form, with classified annex, if 

21 necessary and consistent with national security. 

22 SEC. 104. MILITARY COMMISSIONS. 

23 (a) MILITARY COMMISSIONS.— 


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1 (1) In general.—Subtitle A of title 10, United 

2 States Code, is amended by inserting after chapter 

3 47 the following new chapter: 

4 ‘‘CHAPTER 47A—MILITARY COMMISSIONS 

5 ‘‘SUBCHAPTER I—GENERAL PROVISIONS 

‘‘Sec. 

‘‘948a. Definitions. 

‘‘948b. Military commissions generally. 

‘‘948c. Persons subject to military commissions. 

‘‘948d. Jurisdiction of military commissions. 

6 ‘‘§ 948a. Definitions 

7 ‘‘In this chapter: 

8 ‘‘(1) ALIEN.—The term ‘alien’ means an indi9 vidual who is not a citizen of the United States. 

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

11 ‘classified information’ means the following— 

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

13 been determined by the United States Govern14 ment pursuant to statute, Executive order, or 

15 regulation to require protection against unau16 thorized disclosure for reasons of national secu17 rity. 

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

19 defined in section 11 y. of the Atomic Energy 

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

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

22 means a military commission established pursuant to 

23 this chapter. 


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1 ‘‘(4) CONVENING AUTHORITY.—The term ‘con2 vening authority’ shall be the Secretary of Defense 

3 or his designee. 

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

5 ‘lawful enemy combatant’ means an individual deter6 mined by or under the authority of the President or 

7 Secretary of Defense (whether on an individualized 

8 or collective basis) to be— 

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

10 State party engaged in hostilities against the 

11 United States or its cobelligerents; 

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

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

15 which are under responsible command, wear a 

16 fixed distinctive sign recognizable at a distance, 

17 carry their arms openly, and abide by the law 

18 of war; or 

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

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

22 the United States. 

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

24 the Secretary of Defense. 


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

2 term ‘unlawful enemy combatant’ means an indi3 vidual determined by or under the authority of the 

4 President or the Secretary of Defense— 

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

6 or organization, including but not limited to al 

7 Qaeda, the Taliban, any international terrorist 

8 organization, or associated forces, engaged in 

9 hostilities against the United States or its co10 belligerents in violation of the law of war; 

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

12 of such a force or organization so engaged; or 

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

14 such a force or organization so engaged. 

15 This definition includes any individual determined by 

16 a Combatant Status Review Tribunal, before the ef17 fective date of this Act, to have been properly de18 tained as an enemy combatant, but excludes any 

19 alien determined by the President or the Secretary 

20 of Defense (whether on an individualized or collec21 tive basis), or by any competent tribunal established 

22 under their authority, to be (i) a lawful enemy com23 batant (including a prisoner of war), or (ii) a pro24 tected person whose trial by these military commis25 sions would be inconsistent with Articles 64–76 of 


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1 the Geneva Convention Relative to the Protection of 

2 Civilian Persons in Time of War of August 12, 

3 1949. For purposes of this section, the term ‘pro4 tected person’ refers to the category of persons de5 scribed in Article 4 of the Geneva Convention Rel6 ative to the Protection of Civilian Persons in Time 

7 of War of August 12, 1949. 

8 ‘‘(8) GENEVA CONVENTIONS.—The term ‘Gene9 va Conventions’ means the international conventions 

10 signed at Geneva on August 12, 1949, including 

11 common Article 3. 

12 ‘‘§ 948b. Military commissions generally 

13 ‘‘(a) PURPOSE.—This chapter codifies and estab14 lishes procedures governing the use of military commis15 sions to try unlawful enemy combatants for violations of 

16 the law of war and other offenses triable by military com17 missions. Although military commissions traditionally 

18 have been constituted by order of the President, the deci19 sion of the Supreme Court in Hamdan v. Rumsfeld makes 

20 it both necessary and appropriate to codify procedures for 

21 military commissions as set forth herein. 

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

23 military commissions set forth in this chapter are modeled 

24 after the procedures established for courts-martial in the 

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


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1 neither desirable nor practicable to try unlawful enemy 

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

3 persons by military commission presents new challenges 

4 that require that interpretations of this chapter not be un5 duly influenced by the rules and procedures developed for 

6 courts-martial. Therefore, no construction or application 

7 of chapter 47 of this title shall be binding in the construc8 tion or application of this chapter. 

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

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

11 by military commissions committed against the United 

12 States or its cobelligerents before, on, or after September 

13 11, 2001. 

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

15 chapter is a regularly constituted court, affording all the 

16 necessary ‘judicial guarantees which are recognized as in17 dispensable by civilized peoples’ for purposes of common 

18 Article 3 of the Geneva Conventions. 

19 ‘‘§ 948c. Persons subject to military commissions 

20 ‘‘Alien unlawful enemy combatants, as defined in sec21 tion 948a of this title, shall be subject to trial by military 

22 commissions as set forth in this chapter. 

23 ‘‘§ 948d. Jurisdiction of military commissions 

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

25 try any offense made punishable under this chapter, when 


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1 committed by an alien unlawful enemy combatant. Mili2 tary commissions shall not have jurisdiction over lawful 

3 enemy combatants. Lawful enemy combatants who violate 

4 the law of war are subject to chapter 47 of this title. 

5 Courts-martial established under chapter 47 of this title 

6 shall have jurisdiction to try a lawful enemy combatant 

7 for any offense made punishable under this chapter. 

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

9 over any individual determined by the President or the 

10 Secretary of Defense (whether on an individualized or col11 lective basis), or by any competent tribunal established 

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

13 trial by these military commissions would be inconsistent 

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

15 the Protection of Civilian Persons in Time of War of Au16 gust 12, 1949. Such persons shall be tried in courts-mar17 tial or other tribunals consistent with their status under 

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

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

20 described in Article 4 of the Geneva Convention Relative 

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

22 August 12, 1949. 

23 ‘‘(c) Military commissions may, under such limita24 tions as the Secretary of Defense may prescribe, adjudge 


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1 any punishment not forbidden by this chapter, including 

2 the penalty of death where authorized by this chapter. 

3 ‘‘SUBCHAPTER II—COMPOSITION OF MILITARY 

4 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. 

5 ‘‘§ 948h. Who may convene military commissions 

6 ‘‘(a) The Secretary may issue orders convening mili7 tary commissions to try individuals under this chapter. 

8 ‘‘(b) The Secretary may delegate his authority to con9 vene military commissions or to promulgate any regula10 tions under this chapter. 

11 ‘‘§ 948i. Who may serve on military commissions 

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

13 United States armed forces on active duty is eligible to 

14 serve on a military commission. Eligible commissioned of15 ficers shall include, without limitation, reserve personnel 

16 on active duty, National Guard personnel on active duty 

17 in Federal service, and retired personnel recalled to active 

18 duty. 

19 ‘‘(b) DETAIL OF MEMBERS.—When convening a com20 mission, the convening authority shall detail as members 

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1 ion, are fully qualified for the duty by reason of age, edu2 cation, training, experience, length of service, and judicial 

3 temperament. No member of an armed force shall be eligi4 ble to serve as a member of a commission when he is the 

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

6 an investigator or counsel in the same case. 

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

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

9 may excuse a member of the commission from partici10 pating in the case. 

11 ‘‘§ 948j. Military judge of a military commission 

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

13 judge shall be detailed to each commission. The Secretary 

14 shall prescribe regulations providing for the manner in 

15 which military judges are detailed to such commissions. 

16 The military judge shall preside over each commission to 

17 which he has been detailed. The convening authority shall 

18 not prepare or review any report concerning the effective19 ness, fitness, or efficiency of the military judge so detailed 

20 relating to his performance of duty as a military judge. 

21 ‘‘(b) ELIGIBILITY.—A military judge shall be a com22 missioned officer of the armed forces who is a member 

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

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

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1 cate General of the armed force of which such military 

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

3 to be qualified for duty as a military judge of a commis4 sion may perform such other duties as are assigned to him 

5 by or with the approval of that Judge Advocate General 

6 or his designee. 

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

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

9 which he is the accuser or a witness or has acted as inves10 tigator or a counsel in the same case. 

11 ‘‘(d) CONSULTATION WITH MEMBERS; INELIGI12 BILITY TO VOTE.—Except as provided in section 949d of 

13 this title, the military judge detailed to the commission 

14 may not consult with the members of the commission ex15 cept in the presence of the accused, trial counsel, and de16 fense counsel, nor may he vote with the members of the 

17 commission. 

18 ‘‘§ 948k. Detail of trial counsel and defense counsel 

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

20 counsel and military defense counsel shall be detailed for 

21 each commission. 

22 ‘‘(2) Assistant trial counsel and assistant and asso23 ciate military defense counsel may be detailed for each 

24 commission. 


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1 ‘‘(3) Military defense counsel shall be detailed as soon 

2 as practicable after the swearing of charges against the 

3 person accused. 

4 ‘‘(4) The Secretary shall prescribe regulations pro5 viding for the manner in which counsel are detailed for 

6 military commissions and for the persons who are author7 ized to detail counsel for such military commissions. 

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

9 trial counsel detailed for a military commission under this 

10 chapter must be— 

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

12 in section 801 of this title) who is— 

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

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

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

16 ‘‘(B) certified as competent to perform du17 ties as trial counsel before general courts-mar18 tial by the Judge Advocate General of the 

19 armed force of which he is a member; or 

20 ‘‘(2) a civilian who is— 

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

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

23 ‘‘(B) otherwise qualified to practice before 

24 the commission pursuant to regulations pre25 scribed by the Secretary. 


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1 ‘‘(c) MILITARY DEFENSE COUNSEL.—Subject to sub2 section (d), military defense counsel detailed for a military 

3 commission under this chapter must be a judge advocate 

4 (as so defined) who is— 

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

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

7 highest court of a State; and 

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

9 defense counsel before general courts-martial by the 

10 Judge Advocate General of the armed force of which 

11 he is a member. 

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

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

14 or member of a military commission under this chapter 

15 may act later as trial counsel or defense counsel in the 

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

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

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

19 same case for the prosecution. 

20 ‘‘§ 948l. Detail or employment of reporters and inter21 preters 

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

23 as the Secretary may prescribe, the convening authority 

24 of a military commission shall detail or employ qualified 


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1 court reporters, who shall record the proceedings of and 

2 testimony taken before that commission. 

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

4 convening authority may detail or employ interpreters who 

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

6 trial counsel and defense counsel. 

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

8 under the control of the convening authority, which is re9 sponsible for preparing the record of the proceedings. 

10 ‘‘§ 948m. Number of members; excuse of members; ab11 sent and additional members 

12 ‘‘(a) NUMBER OF MEMBERS.—(1) A military com13 mission under this chapter shall, except as provided in 

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

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

16 the military commission shall have the number of members 

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

18 ‘‘(b) EXCUSE OF MEMBERS.—No member of a mili19 tary commission may be absent or excused after the com20 mission has been assembled for the trial of the accused 

21 unless excused— 

22 ‘‘(1) as a result of challenge; 

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

24 or other good cause; or 


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

2 good cause. 

3 ‘‘(c) ABSENT AND ADDITIONAL MEMBERS.—When4 ever a military commission is reduced below the requisite 

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

6 convening authority details new members sufficient to pro7 vide not less than the requisite number. The trial may pro8 ceed with the new members present after the recorded evi9 dence previously introduced before the members of the 

10 commission has been read to the commission in the pres11 ence of the military judge, the accused (except as provided 

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

13 ‘‘SUBCHAPTER III—PRE-TRIAL PROCEDURE 

‘‘Sec. 

‘‘948q. Charges and specifications. 

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

‘‘948s. Service of charges. 

14 ‘‘§ 948q. Charges and specifications 

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

16 specifications against an accused shall be signed by a per17 son subject to chapter 47 of this title under oath before 

18 a commissioned officer of the armed forces authorized to 

19 administer oaths and shall state— 

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

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

22 and 


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

2 knowledge and belief. 

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

4 the charges and specifications in accordance with sub5 section (a), the accused shall be informed of the charges 

6 and specifications against him as soon as practicable. 

7 ‘‘§ 948r. Compulsory self-incrimination prohibited; 

8 statements obtained by torture 

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

10 testify against himself at a commission proceeding. 

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

12 statement obtained by use of torture, as defined in section 

13 2340 of title 18, whether or not under color of law, shall 

14 not be admissible against the accused, except against a 

15 person accused of torture as evidence the statement was 

16 made. 

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

18 No otherwise admissible statement may be received in evi19 dence, including statements allegedly obtained by coercion, 

20 if the military judge finds that the circumstances under 

21 which the statement was made render it unreliable or lack22 ing in probative value. 

23 ‘‘§ 948s. Service of charges 

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

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


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

2 appropriate, in another language that the accused under3 stands, sufficiently in advance of trial to prepare a de4 fense. 

5 ‘‘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. 

6 ‘‘§ 949a. Rules 

7 ‘‘(a) PROCEDURES.—Pre-trial, trial, and post-trial 

8 procedures, including elements and modes of proof, for 

9 cases triable by military commission under this chapter 

10 shall be prescribed by the Secretary, but may not be con11 trary to or inconsistent with this chapter. 

12 ‘‘(b) RULES OF EVIDENCE.—Subject to such excep13 tions and limitations as the Secretary may provide by reg14 ulation, evidence in a military commission shall be admis15 sible if the military judge determines that the evidence 

16 would have probative value to a reasonable person. 

17 ‘‘(c) HEARSAY EVIDENCE.—Hearsay evidence is ad18 missible, unless the military judge finds that the cirVerDate Aug 31 2005 01:42 Sep 14, 2006 Jkt 049200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S3886.PCS S3886

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1 cumstances render it unreliable or lacking in probative 

2 value, provided that the proponent of the evidence makes 

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

4 or hearing. 

5 ‘‘The military judge shall exclude any evidence the 

6 probative value of which is substantially outweighed by the 

7 danger of unfair prejudice, confusion of the issues, or mis8 leading the members of the commission, or by consider9 ations of undue delay, waste of time, or needless presen10 tation of cumulative evidence. 

11 ‘‘§ 949b. Unlawfully influencing action of military 

12 commission 

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

14 military commission under this chapter may censure, rep15 rimand, or admonish the commission or any member, mili16 tary judge, or counsel thereof, with respect to the findings 

17 or sentence adjudged by the commission, or with respect 

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

19 of the proceedings. 

20 ‘‘(2) No person may attempt to coerce or, by any un21 authorized means, influence the action of a commission 

22 or any member thereof, in reaching the findings or sen23 tence in any case, or the action of any convening, approv24 ing, or reviewing authority with respect to his judicial acts. 


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

2 not apply with respect to— 

3 ‘‘(A) general instructional or informational 

4 courses in military justice if such courses are de5 signed solely for the purpose of instructing members 

6 of a command in the substantive and procedural as7 pects of military commissions; or 

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

9 proceedings by the military judge or counsel. 

10 ‘‘(b) PROHIBITION ON CONSIDERATION OF ACTIONS

11 ON COMMISSION IN EVALUATION OF FITNESS.—In the 

12 preparation of an effectiveness, fitness, or efficiency report 

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

14 for the purpose of determining whether a commissioned 

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

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

17 such officer or in determining whether any such officer 

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

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

20 duty of any member of a military commission under 

21 this chapter; or 

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

23 to any commissioned officer because of the zeal with 

24 which such officer, in acting as counsel, represented 


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1 any accused before a military commission under this 

2 chapter. 

3 ‘‘§ 949c. Duties of trial counsel and defense counsel 

4 ‘‘(a) TRIAL COUNSEL.—The trial counsel of a mili5 tary commission shall prosecute in the name of the United 

6 States. 

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

8 represented in his defense before a military commission 

9 as provided in this subsection. 

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

11 counsel detailed under section 948k of this title. 

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

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

14 ‘‘(A) is a United States citizen; 

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

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

17 States, or before a Federal court; 

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

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

20 competent governmental authority for relevant mis21 conduct; 

22 ‘‘(D) has been determined to be eligible for ac23 cess to information classified at the level Secret or 

24 higher; and 


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

2 with all applicable regulations or instructions for 

3 counsel, including any rules of court for conduct 

4 during the proceedings. 

5 Civilian defense counsel shall protect any classified infor6 mation received during the course of their representation 

7 of the accused in accordance with all applicable law gov8 erning the protection of classified information, and shall 

9 not divulge such information to any person not authorized 

10 to receive it. 

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

12 military counsel detailed shall act as associate counsel. 

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

14 more than one military counsel. However, the person au15 thorized under regulations prescribed under section 948k 

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

17 detail additional military counsel. 

18 ‘‘(6) Defense counsel may crossexamine each witness 

19 for the prosecution who testifies before the commission. 

20 ‘‘§ 949d. Sessions 

21 ‘‘(a) SESSIONS WITHOUT PRESENCE OF MEM22 BERS.—(1) At any time after the service of charges which 

23 have been referred for trial by military commission, the 

24 military judge may call the commission into session with25 out the presence of the members for the purpose of— 


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1 ‘‘(A) hearing and determining motions raising 

2 defenses or objections which are capable of deter3 mination without trial of the issues raised by a plea 

4 of not guilty; 

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

6 may be ruled upon by the military judge under this 

7 chapter, whether or not the matter is appropriate for 

8 later consideration or decision by the members of 

9 the commission; 

10 ‘‘(C) if permitted by regulations of the Sec11 retary, receiving the pleas of the accused; and 

12 ‘‘(D) performing any other procedural function 

13 which may be performed by the military judge under 

14 this chapter or under rules prescribed pursuant to 

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

16 the presence of the members of the commission. 

17 ‘‘(2) Except as provided in subsection (e), any pro18 ceedings under paragraph (1) shall be conducted in the 

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

20 and shall be made part of the record. 

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

22 Except as provided in subsections (c) and (e), all pro23 ceedings of a military commission under this chapter shall 

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

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


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

2 When the members of the commission deliberate or vote, 

3 only the members may be present. 

4 ‘‘(d) PUBLIC PROCEEDINGS.—(1) The military com5 mission shall hold open and public proceedings. 

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

7 or a part of the proceedings of a military commission 

8 under this chapter only upon making a specific finding 

9 that such closure is necessary to— 

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

11 could reasonably be expected to cause identifiable 

12 damage to the public interest or the national secu13 rity, including intelligence or law enforcement 

14 sources, methods, or activities; or 

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

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

17 THE PROTECTION OF CLASSIFIED INFORMATION.—(1) 

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

19 subsection, permit the admission in a military commission 

20 under this chapter of classified information outside the 

21 presence of the accused. 

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

23 from any portion of the proceeding except upon a specific 

24 finding that extraordinary circumstances exist such that— 

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


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1 ‘‘(i) is necessary to protect classified infor2 mation the disclosure of which to the accused 

3 could reasonably be expected to cause identifi4 able damage to the national security, including 

5 intelligence or law enforcement sources, meth6 ods, or activities; or 

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

8 safety of individuals; or 

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

10 the proceedings by the accused; and 

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

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

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

14 and fair trial. 

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

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

17 presentation, by either trial counsel or defense counsel. 

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

19 described in subparagraph (A) requesting the admission 

20 of classified evidence outside the presence of the accused, 

21 the head of the executive or military department or gov22 ernmental agency which has control over the matter (after 

23 personal consideration by that officer) shall certify in writ24 ing to the military judge that— 


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

2 to the accused could reasonably be expected to prej3 udice the national security; and 

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

5 maximum extent possible, consistent with the re6 quirements of national security. 

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

8 is not present for its admission or the evidence is not oth9 erwise provided to the accused, unless the evidence is clas10 sified information and the military judge makes a specific 

11 finding that— 

12 ‘‘(i) consideration of the evidence by the com13 mission, without the presence of the accused, is war14 ranted; 

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

16 redacted version of that evidence would not be an 

17 adequate substitute and, in the case of testimony, al18 ternative methods to obscure the identity of the wit19 ness are not adequate; and 

20 ‘‘(iii) admission of the evidence would not de21 prive the accused of a full and fair trial. 

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

23 proceeding, the accused shall be provided with a redacted 

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

25 an unclassified summary of any evidence introduced. 


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1 Under no circumstances shall such a summary or redacted 

2 transcript compromise the interests warranting the exclu3 sion of the accused under this subsection. 

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

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

6 given access to all evidence admitted under paragraph (4). 

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

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

9 shall be given access to evidence admitted under para10 graph (4), provided that civilian defense counsel has ob11 tained the necessary security clearances and that such 

12 presence and access are consistent with regulations that 

13 the Secretary may prescribe to protect classified informa14 tion. 

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

16 defense counsel who receives classified information admit17 ted pursuant to paragraph (4) shall not be obligated to, 

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

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

20 Notwithstanding any other provision in this chapter, no 

21 statement made by the accused during an interrogation, 

22 even if otherwise classified, may be admitted into evidence 

23 in a military commission under this chapter unless the ac24 cused is present for its admission or the evidence is other25 wise provided to the accused. 


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

2 is a statement communicated knowingly and directly by 

3 the accused in response to questioning by foreign or 

4 United States military, intelligence, or criminal investiga5 tive personnel. This paragraph shall not be construed to 

6 prevent the redaction of intelligence sources or methods, 

7 which do not constitute statements of the accused, from 

8 any document provided to the accused or admitted into 

9 evidence. 

10 ‘‘§ 949e. Continuances 

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

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

13 as may appear to be just. 

14 ‘‘§ 949f. Challenges 

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

16 judge and members of the commission may be challenged 

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

18 commission. The military judge shall determine the rel19 evance and validity of the challenges for cause, and may 

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

21 Challenges by the trial counsel shall ordinarily be pre22 sented and decided before those by the accused are of23 fered. 

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

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1 lenge, but the military judge may not be challenged except 

2 for cause. 

3 ‘‘(c) CHALLENGES AGAINST ADDITIONAL MEM4 BERS.—Whenever additional members are detailed to the 

5 court, and after any challenges for cause against such ad6 ditional members are presented and decided, each accused 

7 and the trial counsel are entitled to one peremptory chal8 lenge against members not previously subject to peremp9 tory challenge. 

10 ‘‘§ 949g. Oaths 

11 ‘‘(a) IN GENERAL.—(1) Before performing their re12 spective duties, military judges, members of commissions, 

13 trial counsel, defense counsel, reporters, and interpreters 

14 shall take an oath to perform their duties faithfully. 

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

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

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

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

19 or for a particular case, shall be as prescribed in regula20 tions of the Secretary. These regulations may provide 

21 that— 

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

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

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


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1 person certified to be qualified or competent for 

2 duty; and 

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

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

5 person is detailed to that duty. 

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

7 commission under this chapter shall be examined on oath. 

8 ‘‘(c) OATH DEFINED.—As used in this section, ‘oath’ 

9 includes an affirmation. 

10 ‘‘§ 949h. Former jeopardy 

11 ‘‘(a) IN GENERAL.—No person may, without his con12 sent, be tried by a commission a second time for the same 

13 offense. 

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

15 accused has been found guilty by military commission 

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

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

18 after review of the case has been fully completed. 

19 ‘‘§ 949i. Pleas of the accused 

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

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

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

23 through lack of understanding of its meaning and effect, 

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


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

2 as though he had pleaded not guilty. 

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

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

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

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

7 specification may be entered immediately without a vote. 

8 This finding shall constitute the finding of the commission 

9 unless the plea of guilty is withdrawn prior to announce10 ment of the sentence, in which event the proceedings shall 

11 continue as though the accused had pleaded not guilty. 

12 ‘‘§ 949j. Opportunity to obtain witnesses and other 

13 evidence 

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

15 commission under this chapter shall have a reasonable op16 portunity to obtain witnesses and other evidence, including 

17 evidence in the possession of the United States, as speci18 fied in regulations prescribed by the Secretary. 

19 ‘‘(2) Process issued in military commissions to com20 pel witnesses to appear and testify and to compel the pro21 duction of other evidence— 

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

23 United States having criminal jurisdiction may law24 fully issue; and 


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

2 States shall have jurisdiction thereof. 

3 ‘‘(b) TREATMENT OF CERTAIN ITEMS.—The military 

4 judge in a military commission under this chapter may, 

5 upon a sufficient showing, authorize trial counsel in mak6 ing documents available to the defense through discovery 

7 conducted pursuant to such rules as the Secretary shall 

8 prescribe— 

9 ‘‘(1) to delete specified items of classified infor10 mation from such documents; 

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

12 the information for such classified documents; or 

13 ‘‘(3) to substitute an unclassified statement ad14 mitting relevant facts that classified information 

15 would tend to prove. 

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

17 (1) As soon as practicable, trial counsel in a military com18 mission under this chapter shall disclose to the defense 

19 the existence of any evidence known to trial counsel that 

20 reasonably tends to exculpate the accused. 

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

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

23 after in camera review by the military judge. 

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

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1 tary department or governmental agency which has con2 trol over the matter shall ensure and shall certify in writ3 ing to the military judge that the disclosure of such evi4 dence to the accused could reasonably be expected to prej5 udice the national security and that such evidence has 

6 been declassified to the maximum extent possible, con7 sistent with the requirements of national security. 

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

9 disclosed to the accused under this subsection— 

10 ‘‘(A) shall be provided to military defense coun11 sel; 

12 ‘‘(B) shall be provided to civilian defense coun13 sel, provided that civilian defense counsel has ob14 tained the necessary security clearances and access 

15 to such evidence is consistent with regulations that 

16 the Secretary may prescribe to protect classified in17 formation; and 

18 ‘‘(C) shall be provided to the accused in a re19 dacted or summary form, if it is possible to do so 

20 without compromising intelligence sources, methods, 

21 activities, or other national security interests. 

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

23 defense counsel who receives evidence under this sub24 section shall not be obligated to, and may not, disclose 

25 that evidence to the accused. 


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1 ‘‘§ 949k. Defense of lack of mental responsibility 

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

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

4 of the commission of the acts constituting the offense, the 

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

6 was unable to appreciate the nature and quality or the 

7 wrongfulness of the acts. Mental disease or defect does 

8 not otherwise constitute a defense. 

9 ‘‘(b) BURDEN OF PROOF.—The accused has the bur10 den of proving the defense of lack of mental responsibility 

11 by clear and convincing evidence. 

12 ‘‘(c) FINDINGS FOLLOWING ASSERTION OF DE13 FENSE.—Whenever lack of mental responsibility of the ac14 cused with respect to an offense is properly at issue, the 

15 military judge shall instruct the members of the commis16 sion as to the defense of lack of mental responsibility 

17 under this section and shall charge them to find the ac18 cused— 

19 ‘‘(1) guilty; 

20 ‘‘(2) not guilty; or 

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

22 responsibility. 

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

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

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

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


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

2 of mental responsibility has been established. 

3 ‘‘§ 949l. Voting and rulings 

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

5 by members of a military commission on the findings and 

6 on the sentence shall be by secret written ballot. 

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

8 upon all questions of law, including the admissibility of 

9 evidence, and all interlocutory questions arising during the 

10 proceedings. 

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

12 upon any question of law or any interlocutory question 

13 other than the factual issue of mental responsibility of the 

14 accused is conclusive and constitutes the ruling of the 

15 commission. However, the military judge may change his 

16 ruling at any time during the trial. 

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

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

19 presence of the accused and counsel, instruct the members 

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

21 charge them— 

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

23 innocent until his guilt is established by legal and 

24 competent evidence beyond reasonable doubt; 


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

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

3 the doubt must be resolved in favor of the accused 

4 and he must be acquitted; 

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

6 degree of guilt, the finding must be in a lower de7 gree as to which there is no reasonable doubt; and 

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

9 guilt of the accused beyond a reasonable doubt is 

10 upon the United States. 

11 ‘‘§ 949m. Number of votes required 

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

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

title or by concurrence of 2 14 ⁄3 of the members present at 

15 the time the vote is taken. 

16 ‘‘(b) SENTENCES.—(1) Except as provided in para17 graphs (2) and (3), sentences shall be determined by a 

military commission by the concurrence of 2 18 ⁄3 of the mem19 bers present at the time the vote is taken. 

20 ‘‘(2) No person may be sentenced to suffer death, ex21 cept insofar as— 

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

23 this chapter for an offense of which the accused has 

24 been found guilty; 


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1 ‘‘(B) the charges referred to the commission ex2 pressly sought the penalty of death; 

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

4 by the concurrence of all the members of the mili5 tary commission present at the time the vote is 

6 taken; and 

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

8 present at the time the vote was taken concurred in 

9 the sentence of death. 

10 ‘‘(3) No person may be sentenced to life imprison11 ment or to confinement for more than 10 years, except 

by the concurrence of 3 12 ⁄4 of the members at the time the 

13 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 shall be not less than 12. 

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

19 12 members are not reasonably available because of phys20 ical conditions or military exigencies, the convening au21 thority shall specify a lesser number of members for the 

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

23 the military commission may be assembled and the trial 

24 held with not fewer than the number of members so speci25 fied. In such a case, the convening authority shall make 


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

2 stating why a greater number of members were not rea3 sonably available. 

4 ‘‘§ 949n. Military commission to announce action 

5 ‘‘A military commission shall announce its findings 

6 and sentence to the parties as soon as determined. 

7 ‘‘§ 949o. Record of trial 

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

9 commission shall keep a separate, substantially verbatim, 

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

11 and the record shall be authenticated by the signature of 

12 the military judge. If the record cannot be authenticated 

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

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

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

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

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

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

19 commission may contain a classified annex. 

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

21 record of the proceedings and testimony shall be prepared 

22 in every military commission established under this chap23 ter. 

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

25 the record of the proceedings of each military commission 


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

2 Where the record contains classified information, or a 

3 classified annex, the accused shall receive a redacted 

4 version of the record. The appropriate defense counsel 

5 shall have access to the unredacted record, as provided 

6 by regulation. 

7 ‘‘SUBCHAPTER V—SENTENCES 

‘‘Sec. 

‘‘949s. Cruel or unusual punishments prohibited. 

‘‘949t. Maximum limits. 

‘‘949u. Execution of confinement. 

8 ‘‘§ 949s. Cruel or unusual punishments prohibited 

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

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

11 punishment, may not be adjudged by a military commis12 sion or inflicted upon any person subject to this chapter. 

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

14 of safe custody, is prohibited. 

15 ‘‘§ 949t. Maximum limits 

16 ‘‘The punishment which a military commission may 

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

18 President or Secretary may prescribe for that offense. 

19 ‘‘§ 949u. Execution of confinement 

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

21 Secretary may prescribe, a sentence of confinement ad22 judged by a military commission may be carried into exe23 cution by confinement— 


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1 ‘‘(1) in any place of confinement under the con2 trol of any of the armed forces; or 

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

4 under the control of the United States or its allies 

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

6 ‘‘(b) TREATMENT DURING CONFINEMENT BY OTHER

7 THAN THE ARMED FORCES.—Persons confined under 

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

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

10 to the same discipline and treatment as persons confined 

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

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

13 the institution is situated. 

14 ‘‘SUBCHAPTER VI—POST-TRIAL PROCEDURE 

15 AND REVIEW OF MILITARY COMMISSIONS 

‘‘Sec. 

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

‘‘950b. Review by the convening authority. 

‘‘950c. Waiver or withdrawal of appeal. 

‘‘950d. Appeal by the United States. 

‘‘950e. Rehearings. 

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

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

‘‘950h. Appellate counsel. 

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

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

16 ‘‘§ 950a. Error of law; lesser included offense 

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

18 military commission may not be held incorrect on the 


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1 ground of an error of law unless the error materially prej2 udices the substantial rights of the accused. 

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

4 authority with the power to approve or affirm a finding 

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

6 finding as includes a lesser included offense. 

7 ‘‘§ 950b. Review by the convening authority 

8 ‘‘(a) NOTICE TO CONVENING AUTHORITY OF FIND9 INGS AND SENTENCE.—The findings and sentence of a 

10 military commission under this chapter shall be reported 

11 in writing promptly to the convening authority after the 

12 announcement of the sentence. 

13 ‘‘(b) SUBMITTAL OF MATTERS BY ACCUSED TO CON14 VENING AUTHORITY.—(1) The accused may submit to the 

15 convening authority matters for consideration by the con16 vening authority with respect to the findings and the sen17 tence of the military commission under this chapter. 

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

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

20 within 20 days after the accused has been given an au21 thenticated record of trial under section 949o(c) of this 

22 title. 

23 ‘‘(B) If the accused shows that additional time is re24 quired for the accused to make a submittal under para25 graph (1), the convening authority, for good cause, may 


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1 extend the applicable period under subparagraph (A) for 

2 not more than an additional 20 days. 

3 ‘‘(3) The accused may waive his right to make a sub4 mission to the convening authority under paragraph (1). 

5 Such a waiver must be made in writing and may not be 

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

7 within which the accused may make a submission under 

8 this subsection shall be deemed to have expired upon the 

9 submission of such a waiver to the convening authority. 

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

11 The authority under this section to modify the findings 

12 and sentence of a military commission under this chapter 

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

14 convening authority. 

15 ‘‘(2)(A) Action on the sentence of a military commis16 sion shall be taken by the convening authority. 

17 ‘‘(B) Subject to regulations of the Secretary, such ac18 tion may be taken only after consideration of any matters 

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

20 the time for submitting such matters expires, whichever 

21 is earlier. 

22 ‘‘(C) In taking action under this paragraph, the con23 vening authority, in his sole discretion, may approve, dis24 approve, commute, or suspend the sentence in whole or 


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1 in part. The convening authority may not increase the sen2 tence beyond that which is found by the commission. 

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

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

5 convening authority, in his sole discretion, may— 

6 ‘‘(A) dismiss any charge or specification by set7 ting aside a finding of guilty thereto; or 

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

9 a finding of guilty to an offense that is a lesser in10 cluded offense of the offense stated in the charge. 

11 ‘‘(4) The convening authority shall serve on the ac12 cused or on defense counsel notice of any action taken by 

13 the convening authority under this subsection. 

14 ‘‘(d) ORDER OF REVISION OR REHEARING.—(1) Sub15 ject to paragraphs (2) and (3), the convening authority, 

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

17 or a rehearing. 

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

19 proceeding in revision may be ordered if— 

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

21 the record; or 

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

23 action by a military commission with respect to the 

24 findings or sentence that can be rectified without 


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1 material prejudice to the substantial rights of the 

2 accused. 

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

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

5 specification or a ruling which amounts to a finding 

6 of not guilty; 

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

8 charge, unless there has been a finding of guilty 

9 under a specification laid under that charge, which 

10 sufficiently alleges a violation; and 

11 ‘‘(iii) increase the severity of the sentence un12 less the sentence prescribed for the offense is man13 datory. 

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

15 authority if he disapproves the findings and sentence and 

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

17 a person disapproves the findings and sentence and does 

18 not order a rehearing, he shall dismiss the charges. A re19 hearing as to the findings may not be ordered where there 

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

21 the findings. A rehearing as to the sentence may be or22 dered if the convening authority disapproves the sentence. 

23 ‘‘§ 950c. Waiver or withdrawal of appeal 

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

25 case subject to appellate review under section 950f and 


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1 950g of this title, except a case in which the sentence as 

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

3 the accused may file with the convening authority a state4 ment expressly waiving the right of the accused to such 

5 review. 

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

7 by both the accused and by a defense counsel. 

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

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

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

11 convening authority, for good cause, may extend the pe12 riod for such filing by not more than 30 days. 

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

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

15 title includes death, the accused may withdraw an appeal 

16 at any time. 

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

18 waiver of the right to appellate review or the withdrawal 

19 of an appeal under this section bars review under section 

20 950f or 950g of this title. 

21 ‘‘§ 950d. Appeal by the United States 

22 ‘‘(a) INTERLOCUTORY APPEAL.—(1) Except as pro23 vided in paragraph (2), in a trial by military commission 

24 under this chapter, the United States may take an interVerDate Aug 31 2005 01:42 Sep 14, 2006 Jkt 049200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\S3886.PCS S3886

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1 locutory appeal to the Court of Military Commission Re2 view of any order or ruling of the military judge that— 

3 ‘‘(A) terminates commission proceedings with 

4 respect to a charge or specification; 

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

6 of a fact material in the proceeding; or 

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

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

9 ‘‘(2) The United States may not appeal under para10 graph (1) an order or ruling that is, or amounts to, a find11 ing of not guilty by the commission with respect to the 

12 charge or specification. 

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

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

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

16 5 days after the date of such order or ruling. 

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

18 forwarded by means prescribed under regulations of the 

19 Secretary directly to the Court of Military Commission Re20 view. In ruling on an appeal under this section, the Court 

21 of Military Commission Review may act only with respect 

22 to matters of law. 

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

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

25 United States Court of Appeals for the District of ColumVerDate Aug 31 2005 01:42 Sep 14, 2006 Jkt 049200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\S3886.PCS S3886

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1 bia Circuit by filing a petition for review in the Court of 

2 Appeals within 10 days after the date of such ruling. Re3 view under this subsection shall be at the discretion of the 

4 Court of Appeals. 

5 ‘‘§ 950e. Rehearings 

6 ‘‘(a) COMPOSITION OF MILITARY COMMISSION FOR

7 REHEARING.—Each rehearing under this chapter shall 

8 take place before a military commission composed of mem9 bers not members of the commission which first heard the 

10 case. 

11 ‘‘(b) SCOPE OF REHEARING.—(1) Upon a rehear12 ing— 

13 ‘‘(A) the accused may not be tried for any of14 fense of which he was found not guilty by the first 

15 commission; and 

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

17 original sentence may be imposed unless— 

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

19 of guilty of an offense not considered upon the 

20 merits in the original proceedings; or 

21 ‘‘(ii) unless the sentence prescribed for the 

22 offense is mandatory. 

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

24 the first commission was in accordance with a pre-trial 

25 agreement and the accused at the rehearing changes his 


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1 plea with respect to the charges or specifications upon 

2 which the pre-trial agreement was based, or otherwise does 

3 not comply with pre-trial agreement, the sentence as to 

4 those charges or specifications may include any punish5 ment not in excess of that lawfully adjudged at the first 

6 commission. 

7 ‘‘§ 950f. Review by Court of Military Commission Re8 view 

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

10 establish a Court of Military Commission Review which 

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

12 panel shall be composed of not less than three appellate 

13 military judges. 

14 ‘‘(2) For the purpose of reviewing military commis15 sion decisions, the court may sit in panels or as a whole 

16 in accordance with rules prescribed by the Secretary. 

17 ‘‘(b) COMPOSITION OF THE COURT.—(1) The Sec18 retary shall assign appellate military judges to a Court 

19 of Military Commission Review. 

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

21 qualifications for military judges prescribed by section 

22 948j(b) of this title or shall be a civilian with comparable 

23 qualifications. 


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1 ‘‘(3) No person may be appointed to serve as an ap2 pellate military judge in any case in which that person 

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

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

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

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

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

8 accordance with procedures prescribed under regulations 

9 of the Secretary. 

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

11 under this section, the Court of Military Commission Re12 view may act only with respect to matters of law. 

13 ‘‘§ 950g. Review by the United States Court of Ap14 peals for the District of Columbia Circuit 

15 and the Supreme Court of the United 

16 States 

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

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

19 the District of Columbia Circuit shall have exclusive juris20 diction to determine the validity of a final judgment ren21 dered by a military commission, pursuant to Section 

22 1005(e)(3) of the Detainee Treatment Act of 2005. 

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

24 judgment until all other appeals under this chapter have 

25 been waived or exhausted. 


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1 ‘‘(2) A petition for review must be filed by the ac2 cused in the Court of Appeals by no longer than 20 days 

3 from the earlier of when— 

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

5 Court of Military Commission Review is served on 

6 the accused or on defense counsel; or 

7 ‘‘(B) the accused submits, in the form pre8 scribed by section 950c of this title, a written notice 

9 waiving his right to appeal under section 950f of 

10 this title. 

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

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

13 the final judgment of the Court of Appeals pursuant to 

14 section 1257 of title 28, United States Code. 

15 ‘‘§ 950h. Appellate counsel 

16 ‘‘(a) APPOINTMENT.—The Secretary shall, by regula17 tion, establish procedures for the appointment of appellate 

18 counsel for the United States and for the accused in mili19 tary commissions under this chapter. Appellate counsel 

20 shall meet the qualifications for appearing before military 

21 commissions under this chapter. 

22 ‘‘(b) REPRESENTATION OF UNITED STATES.—Appel23 late counsel may represent the United States in any ap24 peal or review proceeding under this chapter. Appellate 

25 Government counsel may represent the United States beVerDate Aug 31 2005 01:42 Sep 14, 2006 Jkt 049200 PO 00000 Frm 00057 Fmt 6652 Sfmt 6201 E:\BILLS\S3886.PCS S3886

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1 fore the Supreme Court in cases arising under this chapter 

2 when requested to do so by the Attorney General. 

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

4 shall be represented by appellate military counsel before 

5 the Court of Military Commission Review, the United 

6 State Court of Appeals for the District of Columbia Cir7 cuit, or the Supreme Court, or by civilian counsel if re8 tained by him. 

9 ‘‘§ 950i. Execution of sentence; suspension of sentence 

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

11 UPON APPROVAL BY THE PRESIDENT.—If the sentence 

12 of a military commission under this chapter extends to 

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

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

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

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

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

18 UPON FINAL JUDGMENT OF LEGALITY OF PRO19 CEEDINGS.—(1) If the sentence of a military commission 

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

21 be executed until there is a final judgment as to the legal22 ity of the proceedings (and with respect to death, approval 

23 under subsection (a)). 

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

25 final for purposes of paragraph (1) when— 


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1 ‘‘(A) review is completed by the Court of Mili2 tary Commission Review and— 

3 ‘‘(i) the time for the accused to file a peti4 tion for review by the Court of Appeals for the 

5 District of Columbia Circuit has expired; 

6 ‘‘(ii) the accused has not filed a timely pe7 tition for such review; and 

8 ‘‘(iii) the case is not otherwise under re9 view by that Court; or 

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

11 judgment of the Court of Appeals for the District of 

12 Columbia Circuit and— 

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

14 timely filed; 

15 ‘‘(ii) such a petition is denied by the Su16 preme Court; or 

17 ‘‘(iii) review is otherwise completed in ac18 cordance with the judgment of the Supreme 

19 Court. 

20 ‘‘(c) SUSPENSION OF SENTENCES.—The Secretary, 

21 or the convening authority acting on the case (if other 

22 than the Secretary), may suspend the execution of any 

23 sentence or part thereof in the case, except a sentence of 

24 death. 


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1 ‘‘§ 950j. Finality of proceedings, findings, and sen2 tences 

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

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

5 and sentences of military commissions as approved, re6 viewed, or affirmed as required by this chapter, are final 

7 and conclusive. Orders publishing the proceedings of mili8 tary commissions are binding upon all departments, 

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

10 only to the authority of the President. 

11 ‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS FOR RE12 VIEW OF MILITARY COMMISSION PROCEDURES AND AC13 TIONS.—Except as otherwise provided in this chapter, and 

14 notwithstanding any other law (including section 2241 of 

15 title 28 or any other habeas corpus provision), no court, 

16 justice, or judge shall have jurisdiction to hear or consider 

17 any claim or cause of action whatsoever, including any ac18 tion pending on or filed after the date of enactment of 

19 this chapter, relating to the prosecution, trial, or judgment 

20 of a military commission convened under this section, in21 cluding challenges to the lawfulness of the procedures of 

22 military commissions under this chapter. 

23 ‘‘SUBCHAPTER VII—PUNITIVE MATTERS 

‘‘Sec. 

‘‘950p. Substantive offenses generally. 

‘‘950q. Principals. 

‘‘950r. Accessory after the fact. 

‘‘950s. Conviction of lesser offenses. 


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‘‘950t. Attempts. 

‘‘950u. Solicitation. 

‘‘950v. Crimes triable by military commission. 

‘‘950w. Perjury and obstruction of justice. 

‘‘950x. Contempt. 

1 ‘‘§ 950p. Substantive offenses generally 

2 ‘‘(a) PURPOSE.—The following provisions codify of3 fenses that have traditionally been triable by military com4 missions. This chapter does not establish new crimes that 

5 did not exist before its establishment, but rather codifies 

6 those crimes for trial by military commission. 

7 ‘‘(b) EFFECT.—Because these provisions are declara8 tive of existing law, they do not preclude trial for crimes 

9 that occurred prior to their effective date. 

10 ‘‘§ 950q. Principals 

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

12 chapter who— 

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

14 chapter, or aids, abets, counsels, commands, or pro15 cures its commission; 

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

17 performed by him would be punishable by this chap18 ter; or 

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

20 to acts punishable under this chapter, knew, had 

21 reason to know, or should have known, that a subor22 dinate was about to commit such acts or had done 

23 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 ‘‘§ 950r. 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 may direct. 

9 ‘‘§ 950s. Conviction of lesser offenses 

10 ‘‘An accused may be found guilty of an offense nec11 essarily included in the offense charged or of an attempt 

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

14 ‘‘§ 950t. Attempts 

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

17 chapter shall be punished as a military commission may 

18 direct. 

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

21 amounting to more than mere preparation and tending, 

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

23 to commit that offense. 

24 ‘‘(c) EFFECT OF CONSUMMATION.—Any person sub25 ject to this chapter may be convicted of an attempt to comVerDate Aug 31 2005 01:42 Sep 14, 2006 Jkt 049200 PO 00000 Frm 00062 Fmt 6652 Sfmt 6201 E:\BILLS\S3886.PCS S3886

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

2 offense was consummated. 

3 ‘‘§ 950u. Solicitation 

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

5 advises another or others to commit one or more sub6 stantive offenses triable by military commission shall, if 

7 the offense solicited or advised is attempted or committed, 

8 be punished with the punishment provided for the commis9 sion of the offense, but, if the offense solicited or advised 

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

11 a military commission may direct. 

12 ‘‘§ 950v. Crimes triable by military commission 

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

14 purposes of this chapter, the term ‘military objective’ re15 fers to combatants and those objects during an armed con16 flict which, by their nature, location, purpose, or use, ef17 fectively contribute to the opposing force’s war-fighting or 

18 war-sustaining capability and whose total or partial de19 struction, capture, or neutralization would constitute a 

20 definite military advantage to the attacker under the cir21 cumstances at the time of the attack. 

22 ‘‘(2) For purposes of this section only, ‘protected per23 son’ refers to any person entitled to protection under one 

24 or more of the Geneva Conventions, including civilians not 

25 taking an active part in hostilities, military personnel 


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

2 and military medical or religious personnel. 

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

4 property’ refers to property specifically protected by the 

5 law of war such as buildings dedicated to religion, edu6 cation, art, science or charitable purposes, historic monu7 ments, hospitals, or places where the sick and wounded 

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

9 purposes or are not otherwise military objectives. Such 

10 property would include objects properly identified by one 

11 of the distinctive emblems of the Geneva Conventions but 

12 does not include all civilian property. 

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

14 (4), and (12) under subsection (b) precludes their applica15 bility with regard to collateral damage or to death, dam16 age, or injury incident to a lawful attack. 

17 ‘‘(b) OFFENSES.—The following enumerated of18 fenses, when committed in the context of and associated 

19 with armed conflict, shall be triable by military commis20 sion under this chapter at any time without limitation: 

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

22 person who intentionally kills one or more protected 

23 persons is guilty of the offense of intentionally kill24 ing protected persons and shall be subject to whatVerDate Aug 31 2005 01:42 Sep 14, 2006 Jkt 049200 PO 00000 Frm 00064 Fmt 6652 Sfmt 6201 E:\BILLS\S3886.PCS S3886

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1 ever punishment the commission may direct, includ2 ing the penalty of death. 

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

4 intentionally engages in an attack upon a civilian 

5 population as such or individual civilians not taking 

6 active part in hostilities is guilty of the offense of at7 tacking civilians and shall be subject to whatever 

8 punishment the commission may direct, including, if 

9 death results to one or more of the victims, the pen10 alty of death. 

11 ‘‘(3) ATTACKING CIVILIAN OBJECTS.—Any per12 son who intentionally engages in an attack upon ci13 vilian objects (property that is not a military objec14 tive) shall be guilty of the offense of attacking civil15 ian objects and shall be subject to whatever punish16 ment the commission may direct. 

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

18 person who intentionally engages in an attack upon 

19 protected property shall be guilty of the offense of 

20 attacking protected property and shall be subject to 

21 whatever punishment the commission may direct. 

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

23 and in the absence of military necessity appropriates 

24 or seizes property for private or personal use, with25 out the consent of a person with authority to permit 


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1 such appropriation or seizure, shall be guilty of the 

2 offense of pillaging and shall be subject to whatever 

3 punishment the commission may direct. 

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

5 with effective command or control over subordinate 

6 groups, declares, orders, or otherwise indicates to 

7 those forces that there shall be no survivors or sur8 render accepted, with the intent therefore to threat9 en an adversary or to conduct hostilities such that 

10 there would be no survivors or surrender accepted, 

11 shall be guilty of denying quarter and shall be sub12 ject to whatever punishment the commission may di13 rect. 

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

15 having knowingly seized or detained one or more 

16 persons, threatens to kill, injure, or continue to de17 tain such person or persons with the intent of com18 pelling any nation, person other than the hostage, or 

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

20 explicit or implicit condition for the safety or release 

21 of such person or persons, shall be guilty of the of22 fense of taking hostages and shall be subject to 

23 whatever punishment the commission may direct, in24 cluding, if death results to one or more of the vic25 tims, the penalty of death. 


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1 ‘‘(8) EMPLOYING POISON OR ANALOGOUS WEAP2 ONS.—Any person who intentionally, as a method of 

3 warfare, employs a substance or a weapon that re4 leases a substance that causes death or serious and 

5 lasting damage to health in the ordinary course of 

6 events, through its asphyxiating, bacteriological, or 

7 toxic properties, shall be guilty of employing poison 

8 or analogous weapons and shall be subject to what9 ever punishment the commission may direct, includ10 ing, if death results to one or more of the victims, 

11 the penalty of death. 

12 ‘‘(9) USING PROTECTED PERSONS AS

13 SHIELDS.—Any person who positions, or otherwise 

14 takes advantage of, a protected person with the in15 tent to shield a military objective from attack or to 

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

17 guilty of the offense of using protected persons as 

18 shields and shall be subject to whatever punishment 

19 the commission may direct, including, if death re20 sults to one or more of the victims, the penalty of 

21 death. 

22 ‘‘(10) USING PROTECTED PROPERTY AS

23 SHIELDS.—Any person who positions, or otherwise 

24 takes advantage of the location of, protected prop25 erty under the law of war with the intent to shield 


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

2 or impede military operations, shall be guilty of the 

3 offense of using protected property as shields and 

4 shall be subject to whatever punishment the commis5 sion may direct. 

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

7 act specifically intended to inflict severe physical or 

8 mental pain or suffering (other than pain or suf9 fering incidental to lawful sanctions) upon another 

10 person within his custody or physical control for the 

11 purpose of obtaining information or a confession, 

12 punishment, intimidation, coercion, or any reason 

13 based on discrimination of any kind, shall be guilty 

14 of torture and subject to whatever punishment the 

15 commission may direct, including, if death results to 

16 one or more of the victims, the penalty of death. The 

17 term ‘severe mental pain or suffering’ has the mean18 ing provided in paragraph (2) of section 2340 of 

19 title 18. 

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

21 person who commits an act intended to inflict severe 

22 physical or mental pain or suffering (other than pain 

23 or suffering incidental to lawful sanctions), including 

24 severe physical abuse, upon another person within 

25 his custody or physical control shall be guilty of 


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1 cruel or inhuman treatment and subject to whatever 

2 punishment the commission may direct, including, if 

3 death results to one or more of the victims, the pen4 alty of death. The term ‘severe mental pain or suf5 fering’ has the meaning provided in paragraph (2) 

6 of section 2340 of title 18. 

7 ‘‘(13) INTENTIONALLY CAUSING SERIOUS BOD8 ILY INJURY.—Any person who intentionally causes 

9 serious bodily injury to one or more persons, includ10 ing lawful combatants, in violation of the law of war 

11 shall be guilty of the offense of causing serious bod12 ily injury and shall be subject to whatever punish13 ment the commission may direct, including, if death 

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

15 death. The term ‘serious bodily injury’ has the 

16 meaning provided in subsection (b)(2) of section 113 

17 of title 18. 

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

19 who intentionally injures one or more protected per20 sons, by disfiguring the person or persons by any 

21 mutilation thereof or by permanently disabling any 

22 member, limb, or organ of his body, without any le23 gitimate medical or dental purpose, shall be guilty of 

24 the offense of mutilation or maiming and shall be 

25 subject to whatever punishment the commission may 


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

2 the victims, the penalty of death. 

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

4 WAR.—Any person who intentionally kills one or 

5 more persons, including lawful combatants, in viola6 tion of the law of war shall be guilty of the offense 

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

8 be subject to whatever punishment the commission 

9 may direct, including the penalty of death. 

10 ‘‘(16) DESTRUCTION OF PROPERTY IN VIOLA11 TION OF THE LAW OF WAR.—Any person who inten12 tionally destroys property belonging to another per13 son in violation of the law of war shall be guilty of 

14 the offense of destruction of property in violation of 

15 the law of war and shall be subject to whatever pun16 ishment the commission may direct. 

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

18 person who, after inviting the confidence or belief of 

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

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

21 intentionally makes use of that confidence or belief 

22 in killing, injuring, or capturing such person or per23 sons, shall be guilty of using treachery or perfidy 

24 and shall be subject to whatever punishment the 

25 commission may direct. 


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

2 Any person who uses a flag of truce to feign an in3 tention to negotiate, surrender, or otherwise to sus4 pend hostilities when there is no such intention, 

5 shall be guilty of improperly using a flag of truce 

6 and shall be subject to whatever punishment the 

7 commission may direct. 

8 ‘‘(19) IMPROPERLY USING A DISTINCTIVE EM9 BLEM.—Any person who intentionally uses a distinc10 tive emblem recognized by the law of war for com11 batant purposes in a manner prohibited by the law 

12 of war shall be guilty of improperly using a distinc13 tive emblem and shall be subject to whatever punish14 ment the commission may direct. 

15 ‘‘(20) INTENTIONALLY MISTREATING A DEAD

16 BODY.—Any person who intentionally mistreats the 

17 body of a dead person, without justification by legiti18 mate military necessary, shall be guilty of the of19 fense of mistreating a dead body and shall be sub20 ject to whatever punishment the commission may di21 rect. 

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

23 coercion or threat of force wrongfully invades the 

24 body of a person by penetrating, however slightly, 

25 the anal or genital opening of the victim with any 


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

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

3 be subject to whatever punishment the commission 

4 may direct. 

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

6 AIRCRAFT.—Any person subject to this chapter who 

7 intentionally seizes, exercises unauthorized control 

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

9 aircraft that was not a legitimate military target is 

10 guilty of the offense of hijacking or hazarding a ves11 sel or aircraft and shall be subject to whatever pun12 ishment the commission may direct, including, if 

13 death results to one or more of the victims, the pen14 alty of death. 

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

16 chapter who intentionally kills or inflicts great bodily 

17 harm on one or more persons, or intentionally en18 gages in an act that evinces a wanton disregard for 

19 human life, in a manner calculated to influence or 

20 affect the conduct of government or civilian popu21 lation by intimidation or coercion, or to retaliate 

22 against government conduct, shall be guilty of the 

23 offense of terrorism and shall be subject to whatever 

24 punishment the commission may direct, including, if 


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1 death results to one or more of the victims, the pen2 alty of death. 

3 ‘‘(24) PROVIDING MATERIAL SUPPORT FOR

4 TERRORISM.—Any person who provides material 

5 support or resources, knowing or intending that they 

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

7 an act of terrorism (as defined in subsection 

8 (b)(23)), or who intentionally provides material sup9 port or resources to an international terrorist orga10 nization engaged in hostilities against the United 

11 States, knowing that such organization has engaged 

12 or engages in terrorism (as defined in subsection 

13 (b)(23)), shall be guilty of the offense of providing 

14 material support for terrorism and shall be subject 

15 to whatever punishment the commission may direct. 

16 The term ‘material support or resources’ has the 

17 meaning provided in subsection (b) of section 2339A 

18 of title 18. 

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

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

21 United States, knowingly and intentionally aids an 

22 enemy of the United States or one its cobelligerents 

23 shall be guilty of the offense of wrongfully aiding the 

24 enemy and shall be subject to whatever punishment 

25 the commission may direct. 


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

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

3 of the United States or to the advantage of a foreign 

4 power, collects or attempts to collect certain infor5 mation by clandestine means or while acting under 

6 false pretenses, for the purpose of conveying such in7 formation to an enemy of the United States or one 

8 of its cobelligerents, shall be guilty of the offense of 

9 spying and shall be subject to whatever punishment 

10 the commission may direct, including the penalty of 

11 death. 

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

13 to commit one or more substantive offenses triable 

14 under this section, and who knowingly does any 

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

16 be guilty of conspiracy and shall be subject to what17 ever punishment the commission may direct, includ18 ing, if death results to one or more of the victims, 

19 the penalty of death. 

20 ‘‘§ 950w. Perjury and obstruction of justice 

21 ‘‘The military commissions also may try offenses and 

22 impose punishments for perjury, false testimony, or ob23 struction of justice related to military commissions. 


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1 ‘‘§ 950x. Contempt 

2 ‘‘A military commission may punish for contempt any 

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

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

5 or disorder.’’. 

6 (2) TABLES OF CHAPTERS AMENDMENTS.—The 

7 tables of chapters at the beginning of subtitle A and 

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

9 are each amended by inserting after the item relat10 ing to chapter 47 the following new item: 

‘‘CHAPTER 47A—MILITARY COMMISSIONS 

‘‘SUBCHAPTER I—GENERAL PROVISIONS

‘‘SUBCHAPTER II—COMPOSITION OF COURTS-MARTIAL

‘‘SUBCHAPTER III—PRE-TRIAL PROCEDURE

‘‘SUBCHAPTER IV—TRIAL PROCEDURE

‘‘SUBCHAPTER V—SENTENCES

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

COMMISSIONS

‘‘SUBCHAPTER VII—PUNITIVE MATTERS’’. 

11 (b) SUBMITTAL OF PROCEDURES TO CONGRESS.— 

12 (1) SUBMITTAL OF PROCEDURES.—Not later 

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

14 Act, the Secretary shall submit to the Committees 

15 on Armed Forces of the Senate and the House of 

16 Representatives a report setting forth the procedures 

17 for military commissions prescribed under chapter 

18 47A of title 10, United States Code (as added by 

19 subsection (a)). 


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1 (2) SUBMITTAL OF MODIFICATIONS.—Not later 

2 than 60 days before the date on which any proposed 

3 modification of the procedures described in para4 graph (1) shall go into effect, the Secretary shall 

5 submit to the committees of Congress referred to in 

6 that paragraph a report describing such modifica7 tions. 

8 SEC. 105. JUDICIAL REVIEW. 

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

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

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

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

13 shall have jurisdiction to hear or consider any claim or 

14 cause of action, including an application for a writ of ha15 beas corpus, pending on or filed after the date of enact16 ment of this subsection, against the United States or its 

17 agents, brought by or on behalf of any alien detained by 

18 the United States as an unlawful enemy combatant, relat19 ing to any aspect of the alien’s detention, transfer, treat20 ment, or conditions of confinement: 

21 ‘‘(1) COMBATANT STATUS REVIEW TRIBU22 NALS.—The United States Court of Appeals for the 

23 District of Columbia Circuit shall have exclusive ju24 risdiction to determine the validity of any final deci25 sion of a Combatant Status Review Tribunal. The 


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1 scope of such review is defined in section 1005(e)(2) 

2 of the Detainee Treatment Act of 2005. If the Court 

3 grants a detainee’s petition for review, the Depart4 ment of Defense may conduct a new Combatant Sta5 tus Review Tribunal. 

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

7 had only of final judgments of military commissions 

8 as provided for pursuant to section 247 of the Mili9 tary Commissions Act of 2006. 

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

11 may consider classified information submitted in 

12 camera and ex parte in making any determination 

13 under this section.’’. 

14 SEC. 106. SATISFACTION OF TREATY OBLIGATIONS. 

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

16 against cruel, inhuman, and degrading treatment set forth 

17 in section 1003 of the Detainee Treatment Act of 2005 

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

19 U.S.C. 2000dd) shall fully satisfy United States obliga20 tions with respect to the standards for detention and treat21 ment established by section 1 of common Article 3 of the 

22 Geneva Conventions, with the exception of the obligations 

23 imposed by sections 1(b) and 1(d) of such Article. 

24 (b) RIGHTS NOT JUDICIALLY ENFORCEABLE.— 


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1 (1) IN GENERAL.—No person in any habeas ac2 tion or any other action may invoke the Geneva Con3 ventions or any protocols thereto as a source of 

4 rights, whether directly or indirectly, for any pur5 pose in any court of the United States or its States 

6 or territories. 

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

8 be construed to affect the obligations of the United 

9 States under the Geneva Conventions. 

10 (c) GENEVA CONVENTIONS DEFINED.—In this sec11 tion, the term ‘‘Geneva Conventions’’ means the inter12 national conventions signed at Geneva on August 12, 

13 1949, including common Article 3. 

14 SEC. 107. WAR CRIMES ACT AMENDMENT. 

15 Section 2441 of title 18, United States Code, is 

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

17 ‘‘(3) which constitutes any of the following seri18 ous violations of common Article 3 of the inter19 national conventions signed at Geneva on August 12, 

20 1949, when committed in the context of and in asso21 ciation with an armed conflict not of an inter22 national character: 

23 ‘‘(A) TORTURE.—Any person who com24 mits, or conspires or attempts to commit, an 

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1 ical or mental pain or suffering (other than 

2 pain or suffering incidental to lawful sanctions) 

3 upon another person within his custody or 

4 physical control for the purpose of obtaining in5 formation or a confession, punishment, intimi6 dation, coercion, or any reason based on dis7 crimination of any kind, shall be guilty of a vio8 lation of this subsection. The term ‘severe men9 tal pain or suffering’ has the meaning provided 

10 in paragraph (2) of section 2340 of this title. 

11 ‘‘(B) CRUEL OR INHUMAN TREATMENT.— 

12 Any person who commits, or conspires or at13 tempts to commit, an act intended to inflict se14 vere physical or mental pain or suffering (other 

15 than pain or suffering incidental to lawful sanc16 tions), including severe physical abuse, upon an17 other person within his custody or physical con18 trol shall be guilty of a violation of this sub19 section. The term ‘severe mental pain or suf20 fering’ has the meaning provided in paragraph 

21 (2) of section 2340 of this title. 

22 ‘‘(C) PERFORMING BIOLOGICAL EXPERI23 MENTS.—Any person who subjects, or conspires 

24 or attempts to subject, one or more persons 

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1 cal experiments without a legitimate medical 

2 purpose and in so doing endangers the body or 

3 health of such person or persons shall be guilty 

4 of a violation of this subsection. 

5 ‘‘(D) MURDER.—Any person who inten6 tionally kills, or conspires or attempts to kill, or 

7 kills whether intentionally or unintentionally in 

8 the course of committing any other offense 

9 under this section, one or more persons taking 

10 no active part in the hostilities, including those 

11 placed hors de combat by sickness, wounds, de12 tention, or any other cause, shall be guilty of a 

13 violation of this subsection. The intent required 

14 for this offense precludes its applicability with 

15 regard to collateral damage or to death, dam16 age, or injury incident to a lawful attack. 

17 ‘‘(E) MUTILATION OR MAIMING.—Any per18 son who intentionally injures, or conspires or 

19 attempts to injure, or injures whether inten20 tionally or unintentionally in the course of com21 mitting any other offense under this section, 

22 one or more persons taking no active part in 

23 the hostilities, including those placed hors de 

24 combat by sickness, wounds, detention, or any 

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1 sons by any mutilation thereof or by perma2 nently disabling any member, limb, or organ of 

3 his body, without any legitimate medical or den4 tal purpose, shall be guilty of a violation of this 

5 subsection. The intent required for this offense 

6 precludes its applicability with regard to collat7 eral damage or to death, damage, or injury inci8 dent to a lawful attack. 

9 ‘‘(F) INTENTIONALLY CAUSING GREAT

10 SUFFERING OR SERIOUS INJURY.—Any person 

11 who intentionally causes, or conspires or at12 tempts to cause, serious bodily injury to one or 

13 more persons taking no active part in the hos14 tilities, including those placed hors de combat 

15 by sickness, wounds, detention, or any other 

16 cause, shall be guilty of a violation of this sub17 section. The intent required for this offense 

18 precludes its applicability with regard to collat19 eral damage or to death, damage, or injury inci20 dent to a lawful attack. The term ‘serious bod21 ily injury’ has the meaning provided in sub22 section (b)(2) of section 113 of this title. 

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

24 with coercion or threat of force wrongfully in25 vades, or conspires or attempts to invade, the 


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1 body of a person by penetrating, however slight2 ly, the anal or genital opening of the victim 

3 with any part of the body of the accused or 

4 with any foreign object shall be guilty of a vio5 lation of this subsection. 

6 ‘‘(H) SEXUAL ASSAULT OR ABUSE.—Any 

7 person who forcibly or with coercion or threat 

8 of force engages, or conspires or attempts to 

9 engage, in sexual contact with one or more per10 sons, or causes, or conspires or attempts to 

11 cause, one or more persons to engage in sexual 

12 contact, shall be guilty of a violation of this 

13 subsection. For purposes of this offense, the 

14 term ‘sexual contact’ has the meaning provided 

15 in paragraph (3) of section 2246 of this title. 

16 ‘‘(I) TAKING HOSTAGES.—Any person who, 

17 having knowingly seized or detained one or 

18 more persons, threatens to kill, injure, or con19 tinue to detain such person or persons with the 

20 intent of compelling any nation, person other 

21 than the hostage, or group of persons to act or 

22 refrain from acting as an explicit or implicit 

23 condition for the safety or release of such per24 son or persons, shall be guilty of a violation of 

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1 gage or conspires to engage in this offense shall 

2 also be guilty under this subsection.’’. 

3 SEC. 108. CONFORMING AMENDMENTS. 

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

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

6 this title as follows— 

7 (1) by replacing ‘‘may provide’’ with ‘‘shall pro8 vide’’; 

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

10 prosecution’’; and 

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

12 courts or agencies, foreign courts or agencies, or 

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

14 that subsection’’. 

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

16 2005 (10 U.S.C. 801 note) is amended to conform with 

17 this title as follows— 

18 (1) by striking subsection (e)(3)(B) and renum19 bering subsections (e)(3)(C) and (e)(3)(D) as sub20 sections (e)(3)(B) and (e)(3)(C), respectively; 

21 (2) in subsection (e)(3)(A), by striking ‘‘pursu22 ant to Military Commission Order No. 1, August 31, 

23 2005 (or any successor military order)’’ and insert24 ing ‘‘by a military commission under chapter 47a of 

25 title 10, United States Code’’; 


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

3 ‘‘by a military commission’’; 

4 (4) in former subsection (e)(3)(C)(ii), by strik5 ing ‘‘pursuant to such military order’’ and inserting 

6 ‘‘by such a military commission’’; 

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

8 ‘‘specified in the military order’’ and inserting ‘‘spec9 ified for a military commission’’; 

10 (6) in former subsection (e)(3)(C)(i), by strik11 ing ‘‘at Guantanamo Bay, Cuba’’; and 

12 (7) in former subsection (e)(2)(B)(i) by replac13 ing ‘‘the Department of Defense at Guantanamo 

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

15 (c) Section 802 of title 10, United States Code, is 

16 amended to conform with this title by adding, ‘‘(a)(13) 

17 Lawful enemy combatants who violate the law of war.’’. 

18 (d) Section 821 of title 10, United States Code, is 

19 amended to conform with this title by striking the phrase 

20 ‘‘by statute or the law of war’’. 

21 (e) Section 836 of title 10, United States Code, is 

22 amended to conform with this title as follows—in sub23 section (a), by replacing ‘‘military commissions and other 

24 military tribunals’’ with ‘‘and other military tribunals (ex25 cluding military commissions)’’. 


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1 SEC. 109. RETROACTIVE APPLICATION. 

2 This title shall take effect on the date of the enact3 ment of this title and shall apply retroactively, including 

4 to any aspect of the detention, treatment, or trial of any 

5 person detained at any time since September 11, 2001, 

6 and to any claim or cause of action pending on or after 

7 the date of the enactment of this Act. 

8 SEC. 110. SEVERABILITY. 

9 If any provision of this title, or the application of a 

10 provision to any person or circumstance, is held to be un11 constitutional, the remainder of this title, and the applica12 tion of the provisions to any other person or circumstance, 

13 shall not be affected thereby. 

14 TITLE II—FOREIGN 

15 INTELLIGENCE SURVEILLANCE 

16 SEC. 201. SHORT TITLE. 

17 This title may be cited as the ‘‘National Security Sur18 veillance Act of 2006’’. 

19 SEC. 202. FINDINGS. 

20 Congress finds the following: 

21 (1) After the terrorist attacks of September 11, 

22 2001, President Bush authorized the National Secu23 rity Agency to intercept communications between 

24 people inside the United States, including American 

25 citizens, and terrorism suspects overseas. 


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1 (2) One of the lessons learned from September 

2 11, 2001, is that the enemies who seek to greatly 

3 harm and terrorize our Nation utilize technologies 

4 and techniques that defy conventional law enforce5 ment practices. 

6 (3) For days before September 11, 2001, the 

7 Federal Bureau of Investigation suspected that con8 fessed terrorist Zacarias Moussaoui was planning to 

9 hijack a commercial plane. The Federal Bureau of 

10 Investigation, however, could not meet the require11 ments to obtain a traditional criminal warrant or an 

12 order under the Foreign Intelligence Surveillance 

13 Act of 1978 to search his laptop computer (Report 

14 of the 9/11 Commission 273–76). 

15 (4) The President, as the constitutional officer 

16 most directly responsible for protecting the United 

17 States from attack, requires the ability and means 

18 to detect and track an enemy that can master and 

19 exploit modern technology. 

20 (5) It is equally essential, however, that in pro21 tecting the United Sates against our enemies, the 

22 President does not compromise the very civil lib23 erties that he seeks to safeguard. As Justice Hugo 

24 Black observed, ‘‘The President’s power, if any, to 

25 issue [an] order must stem either from an Act of 


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1 Congress or from the Constitution itself.’’ Youngs2 town Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 

3 585 (1952) (opinion by Black, J.). Similarly, in 

4 2004, Justice Sandra Day O’Connor explained in 

5 her plurality opinion for the Supreme Court in 

6 Hamdi v. Rumsfeld: ‘‘We have long since made clear 

7 that a state of war is not a blank check for the 

8 President when it comes to the rights of the Na9 tion’s citizens.’’ Hamdi v. Rumsfeld, 542 U.S. 507, 

10 536 (2004) (citations omitted). 

11 (6) When deciding issues of national security, it 

12 is in our Nation’s best interest that, to the extent 

13 feasible, all 3 branches of the Federal Government 

14 should be involved. This helps guarantee that elec15 tronic surveillance programs do not infringe on the 

16 constitutional rights of Americans, while at the same 

17 time ensuring that the President has all the powers 

18 and means necessary to detect and track our en19 emies and protect our Nation from attack. 

20 (7) As Justice Sandra Day O’Connor explained 

21 in her plurality opinion for the Supreme Court in 

22 Hamdi v. Rumsfeld, ‘‘Whatever power the United 

23 States Constitution envisions for the Executive in its 

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1 sions a role for all 3 branches when individual lib2 erties are at stake.’’ Hamdi v. Rumsfeld, 542 U.S. 

3 507, 536 (2004) (citations omitted). 

4 (8) Similarly, Justice Jackson famously ex5 plained in his Youngstown concurrence: ‘‘When the 

6 President acts pursuant to an express or implied au7 thorization of Congress, his authority is at its max8 imum, for it includes all that he possesses in his own 

9 right plus all that Congress can delegate... When the 

10 President acts in absence of either a congressional 

11 grant or denial of authority, he can only rely upon 

12 his own independent powers, but there is a zone of 

13 twilight in which he and Congress may have concur14 rent authority, or in which its distribution is uncer15 tain. Therefore, congressional inertia, indifference or 

16 quiescence may sometimes, at least as a practical 

17 matter, enable, if not invite, measures on inde18 pendent presidential responsibility... When the Presi19 dent takes measures incompatible with the expressed 

20 or implied will of Congress, his power is at its lowest 

21 ebb, for then he can rely only upon his own constitu22 tional powers minus any constitutional powers of 

23 Congress over the matter. Courts can sustain exclu24 sive Presidential control in such a case only by dis25 abling the Congress from acting upon the subject.’’ 


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1 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 

2 579, 635–38 (1952) (Jackson, J., concurring). 

3 (9) Congress clearly has the authority to enact 

4 legislation with respect to electronic surveillance pro5 grams. The Constitution provides Congress with 

6 broad powers of oversight over national security and 

7 foreign policy, under article I, section 8 of the Con8 stitution of the United States, which confers on Con9 gress numerous powers, including the powers— 

10 (A) ‘‘To declare War, grant Letters of 

11 Marque and Reprisal, and make Rules con12 cerning Captures on Land and Water’’; 

13 (B) ‘‘To raise and support Armies’’; 

14 (C) ‘‘To provide and maintain a Navy’’; 

15 (D) ‘‘To make Rules for the Government 

16 and Regulation of the land and naval Forces’’; 

17 (E) ‘‘To provide for calling forth the Mili18 tia to execute the Laws of the Union, suppress 

19 Insurrections and repel Invasions’’; and 

20 (F) ‘‘To provide for organizing, arming, 

21 and disciplining the Militia, and for governing 

22 such Part of them as may be employed in the 

23 Service of the United States’’. 

24 (10) While Attorney General Alberto Gonzales 

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1 tronic surveillance program of the National Security 

2 Agency every 45 days to ensure that the program is 

3 not overly broad, it is the belief of Congress that ap4 proval and supervision of electronic surveillance pro5 grams should be conducted outside of the executive 

6 branch, by the article III court established under 

7 section 103 of the Foreign Intelligence Surveillance 

8 Act of 1978 (50 U.S.C. 1803). It is also the belief 

9 of Congress that it is appropriate for an article III 

10 court to pass upon the constitutionality of electronic 

11 surveillance programs that may implicate the rights 

12 of Americans. 

13 (11) The Foreign Intelligence Surveillance 

14 Court is the proper court to approve and supervise 

15 classified electronic surveillance programs because it 

16 is adept at maintaining the secrecy with which it 

17 was charged and it possesses the requisite expertise 

18 and discretion for adjudicating sensitive issues of 

19 national security. 

20 (12) In 1975, [then] Attorney General Edward 

21 Levi, a strong defender of executive authority, testi22 fied that in times of conflict, the President needs the 

23 power to conduct long-range electronic surveillance 

24 and that a foreign intelligence surveillance court 


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1 should be empowered to issue special approval orders 

2 in these circumstances. 

3 (13) The Foreign Intelligence Surveillance Act 

4 of 1978 clarifies and definitively establishes that the 

5 Foreign Intelligence Surveillance Court has the au6 thority to review electronic surveillance programs 

7 and pass upon their constitutionality. Such authority 

8 is consistent with well-established, longstanding 

9 practices. 

10 (14) The Foreign Intelligence Surveillance 

11 Court already has broad authority to approve sur12 veillance of members of international conspiracies, in 

13 addition to granting warrants for surveillance of a 

14 particular individual under sections 104, 105, and 

15 402 of the Foreign Intelligence Surveillance Act of 

16 1978 (50 U.S.C. 1804, 1805, and 1842). 

17 (15) Prosecutors have significant flexibility in 

18 investigating domestic conspiracy cases. Courts have 

19 held that flexible warrants comply with the 4th 

20 amendment to the Constitution of the United States 

21 when they relate to complex, far-reaching, and 

22 multifaceted criminal enterprises like drug conspir23 acies and money laundering rings. The courts recog24 nize that applications for search warrants must be 

25 judged in a common sense and realistic fashion, and 


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1 the courts permit broad warrant language where, 

2 due to the nature and circumstances of the inves3 tigation and the criminal organization, more precise 

4 descriptions are not feasible. 

5 (16) Federal agents investigating international 

6 terrorism by foreign enemies are entitled to tools at 

7 least as broad as those used by law enforcement offi8 cers investigating domestic crimes by United States 

9 citizens. The Supreme Court, in the ‘‘Keith Case’’, 

10 United States v. United States District Court for 

11 the Eastern District of Michigan, 407 U.S. 297 

12 (1972), recognized that the standards and proce13 dures used to fight ordinary crime may not be appli14 cable to cases involving national security. The Court 

15 recognized that national ‘‘security surveillance may 

16 involve different policy and practical considerations 

17 from the surveillance of ordinary crime’’ and that 

18 courts should be more flexible in issuing warrants in 

19 national security cases. United States v. United 

20 States District Court for the Eastern District of 

21 Michigan, 407 U.S. 297, 322 (1972). 

22 (17) By authorizing the Foreign Intelligence 

23 Surveillance Court to review electronic surveillance 

24 programs, Congress preserves the ability of the 

25 President to use the necessary means to guard our 


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1 national security, while also protecting the civil lib2 erties and constitutional 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 IX; 

7 (2) by redesignating section 701 as section 901; 

8 and 

9 (3) by inserting after title VI the following: 

10 ‘‘TITLE VII—ELECTRONIC 

11 SURVEILLANCE 

12 ‘‘SEC. 701. DEFINITION. 

13 ‘‘As used in this title— 

14 ‘‘(1) the terms ‘agent of a foreign power’, ‘At15 torney General’, ‘foreign power’, ‘international ter16 rorism’, ‘minimization procedures’, ‘person’, ‘United 

17 States’, and ‘United States person’ have the same 

18 meaning as in section 101; 

19 ‘‘(2) the term ‘congressional intelligence com20 mittees’ means the Select Committee on Intelligence 

21 of the Senate and the Permanent Select Committee 

22 on Intelligence of the House of Representatives; 

23 ‘‘(3) the term ‘electronic communication’ means 

24 any transfer of signs, signals, writing, images, 

25 sounds, data, or intelligence of any nature transVerDate Aug 31 2005 01:42 Sep 14, 2006 Jkt 049200 PO 00000 Frm 00093 Fmt 6652 Sfmt 6201 E:\BILLS\S3886.PCS S3886

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1 mitted, in whole or in part, by a wire, radio, electro 

2 magnetic, photo electronic or photo optical system, 

3 cable, or other like connection furnished or operated 

4 by any person engaged as a common carrier in pro5 viding or operating such facilities for the trans6 mission of communications; 

7 ‘‘(4) the term ‘electronic tracking’ means the 

8 acquisition by an electronic, mechanical, or other 

9 surveillance device of the substance of any electronic 

10 communication sent by, received by, or intended to 

11 be received by a person who is reasonably believed 

12 to be in the United States, through the intentional 

13 targeting of that person’s communications, where a 

14 person in the United States participating in the 

15 communication has a reasonable expectation of pri16 vacy; 

17 ‘‘(5) the term ‘electronic surveillance program’ 

18 means a program to engage in electronic tracking— 

19 ‘‘(A) that has as a significant purpose the 

20 gathering of foreign intelligence information or 

21 protecting against international terrorism; 

22 ‘‘(B) where it is not technically feasible to 

23 name every person or address every location to 

24 be subjected to electronic tracking; 


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1 ‘‘(C) where effective gathering of foreign 

2 intelligence information requires the flexibility 

3 to begin electronic surveillance immediately 

4 after learning of suspect activity; and 

5 ‘‘(D) where effective gathering of foreign 

6 intelligence information requires an extended 

7 period of electronic surveillance; 

8 ‘‘(6) the term ‘foreign intelligence information’ 

9 has the same meaning as in section 101 and in10 cludes information necessary to protect against 

11 international terrorism; 

12 ‘‘(7) the term ‘Foreign Intelligence Surveillance 

13 Court’ means the court established under section 

14 103(a); 

15 ‘‘(8) the term ‘Foreign Intelligence Surveillance 

16 Court of Review’ means the court established under 

17 section 103(b); 

18 ‘‘(9) the term ‘intercept’ means the acquisition 

19 of the substance of any electronic communication by 

20 a person through the use of any electronic, mechan21 ical, or other device; and 

22 ‘‘(10) the term ‘substance’ means any informa23 tion concerning the symbols, sounds, words, purport, 

24 or meaning of a communication, and does not in25 clude dialing, routing, addressing, or signaling.’’. 


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1 SEC. 204. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

2 JURISDICTION TO REVIEW ELECTRONIC SUR3 VEILLANCE PROGRAMS. 

4 (a) IN GENERAL.—Title VII of the Foreign Intel5 ligence Surveillance Act of 1978, as amended by section 

6 203, is amended by adding at the end the following: 

7 ‘‘SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

8 JURISDICTION TO REVIEW ELECTRONIC SUR9 VEILLANCE PROGRAMS. 

10 ‘‘(a) AUTHORIZATION OF REVIEW.— 

11 ‘‘(1) INITIAL AUTHORIZATION.—The Foreign 

12 Intelligence Surveillance Court shall have jurisdic13 tion to issue an order under this title, lasting not 

14 longer than 90 days, that authorizes an electronic 

15 surveillance program to obtain foreign intelligence 

16 information or to protect against international ter17 rorism. 

18 ‘‘(2) REAUTHORIZATION.—The Foreign Intel19 ligence Surveillance Court shall have jurisdiction to 

20 reauthorize an electronic surveillance program for a 

21 period of time not longer than such court determines 

22 to be reasonable. 

23 ‘‘(3) RESUBMISSION OR APPEAL.—In the event 

24 that the Foreign Intelligence Surveillance Court re25 fuses to approve an application under this sub26 section, the Attorney General may submit a new apVerDate Aug 31 2005 01:42 Sep 14, 2006 Jkt 049200 PO 00000 Frm 00096 Fmt 6652 Sfmt 6201 E:\BILLS\S3886.PCS S3886

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1 plication. There shall be no limit on the number of 

2 times the Attorney General may seek approval of an 

3 electronic surveillance program. Alternatively, the 

4 Attorney General may appeal the decision of the 

5 Foreign Intelligence Surveillance Court to the For6 eign Intelligence Surveillance Court of Review. 

7 ‘‘(b) MANDATORY TRANSFER FOR REVIEW.— 

8 ‘‘(1) IN GENERAL.—In any case before any 

9 court challenging the legality of classified commu10 nications intelligence activity relating to a foreign 

11 threat, including an electronic surveillance program, 

12 or in which the legality of any such activity or pro13 gram is in issue, if the Attorney General files an af14 fidavit under oath that the case should be trans15 ferred to the Foreign Intelligence Court of Review 

16 because further proceedings in the originating court 

17 would harm the national security of the United 

18 States, the originating court shall transfer the case 

19 to the Foreign Intelligence Surveillance Court of Re20 view for further proceedings under this subsection. 

21 ‘‘(2) RETRANSFER TO ORIGINATING COURT.— 

22 Upon completion of review pursuant to this sub23 section, the Foreign Intelligence Surveillance Court 

24 of Review shall remand the case to the originating 


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1 court for further proceedings consistent with its 

2 opinion. 

3 ‘‘(3) PRESERVATION OF LITIGATION.—In any 

4 case that is transferred and received under this sub5 section, all litigation privileges shall be preserved. 

6 ‘‘(4) CERTIORARI AND EFFECTS OF DECI7 SIONS.—The decision the Foreign Intelligence Sur8 veillance Court of Review made under paragraph 

9 (1), including a decision that the disclosure of na10 tional security information is constitutionally re11 quired, shall be subject to certiorari review in the 

12 United States Supreme Court, and shall otherwise 

13 be binding in all other courts. 

14 ‘‘(5) DISMISSAL.—The Foreign Intelligence 

15 Surveillance Court of Review or a court that is an 

16 originating court under paragraph (1) may dismiss 

17 a challenge to the legality of an electronic surveil18 lance program for any reason provided for under 

19 law. 

20 ‘‘(c) MODIFICATIONS AND APPEAL IN EVENT APPLI21 CATION IS DENIED.—In the event that the Foreign Intel22 ligence Surveillance Court declines to approve an applica23 tion under subsection (a)— 


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1 ‘‘(1) the court shall state its reasons in a writ2 ten opinion, which it shall submit to the Attorney 

3 General; and 

4 ‘‘(2) the Attorney General may submit a new 

5 application under section 703 for the electronic sur6 veillance program.’’. 

7 SEC. 205. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

8 SURVEILLANCE PROGRAMS. 

9 Title VII of the Foreign Intelligence Surveillance Act 

10 of 1978, as amended by section 204, is amended by adding 

11 at the end the following: 

12 ‘‘SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

13 SURVEILLANCE PROGRAMS. 

14 ‘‘(a) IN GENERAL.—Each application for approval of 

15 an electronic surveillance program under this title (includ16 ing for reauthorization) shall— 

17 ‘‘(1) be made by the Attorney General or his 

18 designee; 

19 ‘‘(2) include a statement of the authority con20 ferred on the Attorney General by the President of 

21 the United States; 

22 ‘‘(3) include a statement setting forth the legal 

23 basis for the conclusion by the Attorney General 

24 that the electronic surveillance program is consistent 

25 with the Constitution of the United States; 


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1 ‘‘(4) certify that a significant purpose of the 

2 electronic surveillance program is to gather foreign 

3 intelligence information or to protect against inter4 national terrorism; 

5 ‘‘(5) certify that the information sought cannot 

6 reasonably be obtained by normal investigative tech7 niques or through an application under section 104; 

8 ‘‘(6) include a statement of the means and 

9 operational procedures by which the electronic track10 ing will be executed and effected; 

11 ‘‘(7) include an explanation of how the elec12 tronic surveillance program is reasonably designed to 

13 ensure that the communications that are intercepted 

14 are communications of or with— 

15 ‘‘(A) a foreign power that is engaged in 

16 international terrorism activities or in prepara17 tion therefor; 

18 ‘‘(B) an agent of a foreign power that is 

19 engaged in international terrorism activities or 

20 in preparation therefor; or 

21 ‘‘(C) a person reasonably believed to have 

22 communication with or be associated with a for23 eign power that is engaged in international ter24 rorism activities or in preparation therefor or 

25 an agent of a foreign power that is engaged in 


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1 international terrorism activities or in prepara2 tion therefor; 

3 ‘‘(8) include a statement of the proposed mini4 mization procedures; 

5 ‘‘(9) if the electronic surveillance program that 

6 is the subject of the application was initiated prior 

7 to the date the application was submitted, specify 

8 the date that the program was initiated; 

9 ‘‘(10) include a description of all previous appli10 cations that have been made under this title involv11 ing the electronic surveillance program in the appli12 cation (including the minimization procedures and 

13 the means and operational procedures proposed) and 

14 the decision on each previous application; and 

15 ‘‘(11) include a statement of facts concerning 

16 the implementation of the electronic surveillance pro17 gram described in the application, including, for any 

18 period of operation of the program authorized not 

19 less than 90 days prior to the date of submission of 

20 the application— 

21 ‘‘(A) the minimization procedures imple22 mented; and 

23 ‘‘(B) the means and operational procedures 

24 by which the electronic tracking was executed 

25 and effected. 


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1 ‘‘(b) ADDITIONAL INFORMATION.—The Foreign In2 telligence Surveillance Court may require the Attorney 

3 General to furnish such other information as may be nec4 essary to make a determination under section 704.’’. 

5 SEC. 206. APPROVAL OF ELECTRONIC SURVEILLANCE PRO6 GRAMS. 

7 Title VII of the Foreign Intelligence Surveillance Act 

8 of 1978, as amended by section 205, is amended by adding 

9 at the end the following: 

10 ‘‘SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE 

11 PROGRAMS. 

12 ‘‘(a) NECESSARY FINDINGS.—Upon receipt of an ap13 plication under section 703, the Foreign Intelligence Sur14 veillance Court shall enter an ex parte order as requested, 

15 or as modified, approving the electronic surveillance pro16 gram if it finds that— 

17 ‘‘(1) the President has authorized the Attorney 

18 General to make the application for electronic sur19 veillance for foreign intelligence information or to 

20 protect against international terrorism; 

21 ‘‘(2) approval of the electronic surveillance pro22 gram in the application is consistent with the Con23 stitution of the United States; 

24 ‘‘(3) the electronic surveillance program is rea25 sonably designed to ensure that the communications 


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1 that are intercepted are communications of or 

2 with— 

3 ‘‘(A) a foreign power that is engaged in 

4 international terrorism activities or in prepara5 tion therefor; 

6 ‘‘(B) an agent of a foreign power that is 

7 engaged in international terrorism activities or 

8 in preparation therefor; or 

9 ‘‘(C) a person reasonably believed to have 

10 communication with or be associated with a for11 eign power that is engaged in international ter12 rorism activities or in preparation therefor or 

13 an agent of a foreign power that is engaged in 

14 international terrorism activities or in prepara15 tion therefor; 

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 person, fur24 nish the applicant forthwith with all information, fa25 cilities, or technical assistance necessary to underVerDate Aug 31 2005 01:42 Sep 14, 2006 Jkt 049200 PO 00000 Frm 00104 Fmt 6652 Sfmt 6201 E:\BILLS\S3886.PCS S3886

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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 record 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 206, 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 surveillance was executed and effected; 

9 ‘‘(3) significant decisions of the Foreign Intel10 ligence Surveillance Court on applications made 

11 under section 703; 

12 ‘‘(4) the total number of applications made for 

13 orders approving electronic surveillance pursuant to 

14 this title; and 

15 ‘‘(5) the total number of orders applied for that 

16 are granted, modified, or denied. 

17 ‘‘(c) RULE OF CONSTRUCTION.—Nothing in this title 

18 shall be construed to limit the authority or responsibility 

19 of any committee of either House of Congress to obtain 

20 such information as such committee may need to carry 

21 out its respective functions and duties.’’. 

22 SEC. 208. CLARIFICATION OF THE FOREIGN INTELLIGENCE 

23 SURVEILLANCE ACT OF 1978. 

24 (a) IN GENERAL.—The Foreign Intelligence Surveil25 lance Act of 1978 (50 U.S.C. 1801 et seq.) is amended 


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1 by inserting after title VII, as amended by this title, the 

2 following: 

3 ‘‘TITLE VIII—EXECUTIVE 

4 AUTHORITY 

5 ‘‘SEC. 801. EXECUTIVE AUTHORITY. 

6 ‘‘Nothing in this Act shall be construed to limit the 

7 constitutional authority of the President to collect intel8 ligence with respect to foreign powers and agents of for9 eign powers.’’. 

10 (b) REPEAL.—Sections 111, 309, and 404 of the 

11 Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 

12 1811, 1829, and 1844) are repealed. 

13 (c) CONFORMING AMENDMENTS.— 

14 (1) TITLE 18.—Section 2511(2) of title 18, 

15 United States Code, is amended— 

16 (A) in paragraph (e), by striking ‘‘, as de17 fined in section 101’’ and all that follows 

18 through the end of the paragraph and inserting 

19 the following: ‘‘under the Constitution or the 

20 Foreign Intelligence Surveillance Act of 1978.’’; 

21 and 

22 (B) in paragraph (f), by striking ‘‘from 

23 international or foreign communications,’’ and 

24 all that follows through the end of the para25 graph and inserting ‘‘that is authorized under 


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1 a Federal statute or the Constitution of the 

2 United States.’’ 

3 (2) FISA.—Section 109 of the Foreign Intel4 ligence Surveillance Act of 1978 (50 U.S.C. 1809) 

5 is amended— 

6 (A) in subsection (a)— 

7 (i) in paragraph (1)— 

8 (I) by inserting ‘‘or under the 

9 Constitution’’ after ‘‘authorized by 

10 statute’’; and 

11 (II) by striking ‘‘or’’ at the end; 

12 (ii) in paragraph (2)— 

13 (I) by inserting ‘‘or under the 

14 Constitution’’ after ‘‘authorized by 

15 statute’’; and 

16 (II) by striking the period and 

17 inserting ‘‘; or’’; and 

18 (iii) by adding at the end the fol19 lowing: 

20 ‘‘(3) knowingly discloses or uses information ob21 tained under color of law by electronic surveillance 

22 in a manner or for a purpose not authorized by 

23 law.’’; and 

24 (B) in subsection (c)— 


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1 (i) by striking ‘‘$10,000’’ and insert2 ing ‘‘$100,000’’; and 

3 (ii) by striking ‘‘five years’’ and in4 serting ‘‘15 years’’. 

5 SEC. 209. OTHER CONFORMING AMENDMENTS TO FISA. 

6 (a) REFERENCE.—In this section, a reference to 

7 ‘‘FISA’’ shall mean the Foreign Intelligence Surveillance 

8 Act of 1978 (50 U.S.C. 1801 et seq.) 

9 (b) DEFINITIONS.—Section 101 of FISA (50 U.S.C. 

10 1801) is amended— 

11 (1) in subsection (b)(1)— 

12 (A) in subparagraph (B), by striking ‘‘or’’ 

13 after the semicolon; and 

14 (B) by adding at the end the following: 

15 ‘‘(D) otherwise possesses or is expected to 

16 transmit or receive foreign intelligence informa17 tion within the United States; or’’; 

18 (2) by striking subsection (f) and inserting the 

19 following: 

20 ‘‘(f) ‘Electronic surveillance’ means— 

21 ‘‘(1) the installation or use of an electronic, me22 chanical, or other surveillance device for the inten23 tional collection of information concerning a par24 ticular known person who is reasonably believed to 

25 be in the United States by intentionally targeting 


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1 that person under circumstances in which that per2 son has a reasonable expectation of privacy and a 

3 warrant would be required for law enforcement pur4 poses; or 

5 ‘‘(2) the intentional acquisition of the contents 

6 of any communication under circumstances in which 

7 a person has a reasonable expectation of privacy and 

8 a warrant would be required for law enforcement 

9 purposes, and if both the sender and all intended re10 cipients are located within the United States.’’; 

11 (3) in subsection (g), by inserting before the pe12 riod the following: ‘‘or a person or persons des13 ignated by the Attorney General or Acting Attorney 

14 General’’; 

15 (4) in subsection (h)— 

16 (A) in paragraph (2), by inserting ‘‘and’’ 

17 after the semicolon; 

18 (B) in paragraph (3), by striking ‘‘; and’’ 

19 and inserting a period; and 

20 (C) by striking paragraph (4); and 

21 (5) by striking subsection (n) and inserting the 

22 following: 

23 ‘‘(n) ‘contents’ has the meaning set forth in section 

24 2510(8) of title 18, United States Code.’’. 


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1 (c) ELECTRONIC SURVEILLANCE AUTHORIZATION.— 

2 Section 102 of FISA (50 U.S.C. 1802) is amended to read 

3 as follows: 

4 ‘‘ELECTRONIC SURVEILLANCE AUTHORIZATION WITHOUT

5 COURT ORDER; CERTIFICATION BY ATTORNEY GEN6 ERAL; REPORTS TO CONGRESSIONAL COMMITTEES; 

7 TRANSMITTAL UNDER SEAL; DUTIES AND COM8 PENSATION OF COMMUNICATION COMMON CARRIER; 

9 APPLICATIONS; JURISDICTION OF COURT

10 ‘‘SEC. 102. (a)(1) Notwithstanding any other law, the 

11 President through the Attorney General, may authorize 

12 electronic surveillance without a court order under this 

13 title to acquire foreign intelligence information for periods 

14 of up to 1 year if the Attorney General certifies in writing 

15 under oath that— 

16 ‘‘(A)(i) the acquisition of the contents of com17 munications of foreign powers, as defined in section 

18 101(a), an agent of a foreign power as defined in 

19 section 101(b)(1); or 

20 ‘‘(ii) the acquisition of technical intelligence, 

21 other than the spoken communications of individ22 uals, from property or premises under the open and 

23 exclusive control of a foreign power, as defined in 

24 paragraph (1), (2), or (3) of section 101(a); and 


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1 ‘‘(B) the proposed minimization procedures 

2 with respect to such surveillance meet the definition 

3 of minimization procedures under section 101(h); 

4 if the Attorney General reports such minimization proce5 dures and any changes thereto to the Senate Select Com6 mittee on Intelligence and the House Permanent Select 

7 Committee on Intelligence at least 30 days prior to their 

8 effective date, unless the Attorney General determines im9 mediate action is required and notifies the committees im10 mediately of such minimization procedures and the reason 

11 for their becoming effective immediately. 

12 ‘‘(2) An electronic surveillance authorized by this 

13 subsection may be conducted only in accordance with the 

14 Attorney General’s certification and the minimization pro15 cedures. The Attorney General shall assess compliance 

16 with such procedures and shall report such assessments 

17 to the Senate Select Committee on Intelligence and the 

18 House Permanent Select Committee on Intelligence under 

19 the provisions of section 108(a). 

20 ‘‘(3) The Attorney General shall immediately trans21 mit under seal to the court established under section 

22 103(a) a copy of his certification. Such certification shall 

23 be maintained under security measures established by the 

24 Chief Justice with the concurrence of the Attorney GenVerDate Aug 31 2005 01:42 Sep 14, 2006 Jkt 049200 PO 00000 Frm 00112 Fmt 6652 Sfmt 6201 E:\BILLS\S3886.PCS S3886

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1 eral, in consultation with the Director of National Intel2 ligence, and shall remain sealed unless— 

3 ‘‘(A) an application for a court order with re4 spect to the surveillance is made under section 104; 

5 or 

6 ‘‘(B) the certification is necessary to determine 

7 the legality of the surveillance under section 106(f). 

8 ‘‘(b) The Attorney General is also authorized to de9 liver to a provider of any electronic communication service, 

10 landlord, custodian, or other person (including any officer, 

11 employee, agent, or other specified person thereof) who 

12 has access to electronic communications, either as they are 

13 transmitted or while they are stored, or equipment that 

14 is being or may be used to transmit or store such commu15 nications, a certificate requiring that such person or per16 sons furnish any information, facilities, or technical assist17 ance to an official authorized by the President to engage 

18 in electronic surveillance for foreign intelligence purposes, 

19 for periods of up to 1 year if the Attorney General certifies 

20 in writing to the carrier under oath that such provision 

21 of information, facilities, or technical assistance does not 

22 constitute electronic surveillance as defined in section 

23 101(f). 

24 ‘‘(c) With respect to electronic surveillance or the fur25 nishing of any information, facilities, or technical assistVerDate Aug 31 2005 01:42 Sep 14, 2006 Jkt 049200 PO 00000 Frm 00113 Fmt 6652 Sfmt 6201 E:\BILLS\S3886.PCS S3886

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1 ance authorized by this section, the Attorney General may 

2 direct a provider of any electronic communication service, 

3 landlord, custodian or other person (including any officer, 

4 employee, agent, or other specified person thereof) who 

5 has access to electronic communications, either as they are 

6 transmitted or while they are stored or equipment that 

7 is being or may be used to transmit or store such commu8 nications to— 

9 ‘‘(1) furnish all information, facilities, or tech10 nical assistance necessary to accomplish the elec11 tronic surveillance in such a manner as will protect 

12 its secrecy and produce a minimum of interference 

13 with the services that such provider of any electronic 

14 communication service, landlord, custodian, or other 

15 person is providing its customers; and 

16 ‘‘(2) maintain under security procedures ap17 proved by the Attorney General and the Director of 

18 National Intelligence any records concerning the sur19 veillance or the aid furnished which such provider of 

20 any electronic communication service, landlord, cus21 todian, or other person wishes to retain. 

22 The Government shall compensate, at the prevailing rate, 

23 such provider of any electronic communication service, 

24 landlord, custodian, or other person for furnishing such 

25 aid. 


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1 ‘‘(d) Electronic surveillance directed solely at the col2 lection of international radio communications of diplomati3 cally immune persons in the United States may be author4 ized by an official authorized by the President to engage 

5 in electronic surveillance for foreign intelligence purposes 

6 in accordance with procedures approved by the Attorney 

7 General.’’. 

8 (d) DESIGNATION OF JUDGES.—Section 103 of FISA 

9 (50 U.S.C. 1803) is amended in subsection (a), by insert10 ing, ‘‘at least’’ before ‘‘seven of the United States Judici11 ary’’. 

12 (e) APPLICATIONS FOR COURT ORDERS.—Section 

13 104 of FISA (50 U.S.C. 1804) is amended: 

14 (1) in subsection (a), by striking paragraphs 

15 (6) through (11) and inserting the following: 

16 ‘‘(6) a certification or certifications by the As17 sistant to the President for National Security Af18 fairs or an executive branch official authorized by 

19 the President to conduct electronic surveillance for 

20 foreign intelligence purposes— 

21 ‘‘(A) that the certifying official deems the 

22 information sought to be foreign intelligence in23 formation; 


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1 ‘‘(B) that a significant purpose of the sur2 veillance is to obtain foreign intelligence infor3 mation; 

4 ‘‘(C) that such information cannot reason5 ably be obtained by normal investigative tech6 niques; and 

7 ‘‘(D) including a statement of the basis for 

8 the certification that— 

9 ‘‘(i) the information sought is the type 

10 of foreign intelligence information des11 ignated; and 

12 ‘‘(ii) such information cannot reason13 ably be obtained by normal investigative 

14 techniques; and 

15 ‘‘(7) a statement of the period of time for which 

16 the electronic surveillance is required to be main17 tained, and if the nature of the intelligence gath18 ering is such that the approval of the use of elec19 tronic surveillance under this title should not auto20 matically terminate when the described type of infor21 mation has first been obtained, a description of facts 

22 supporting the belief that additional information of 

23 the same type will be obtained thereafter.’’; 

24 (2) by striking subsection (b); and 


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1 (3) by redesignating subsections (c) through (e) 

2 as subsections (b) through (d), respectively. 

3 (f) ISSUANCE OF ORDER.—Section 105 of FISA (50 

4 U.S.C. 1805) is amended— 

5 (1) in subsection (a), by— 

6 (A) striking paragraph (1); and 

7 (B) redesignating paragraphs (2) through 

8 (5) as paragraphs (1) through (4), respectively; 

9 (2) by striking paragraph (1) of subsection (c) 

10 and inserting the following: 

11 ‘‘(1) An order approving an electronic surveillance 

12 under this section shall specify— 

13 ‘‘(A) the identity, if known, or a description of 

14 the specific target of the electronic surveillance iden15 tified or described in the application pursuant to sec16 tion 104(a)(3); 

17 ‘‘(B) the nature and location of each of the fa18 cilities or places at which the electronic surveillance 

19 will be directed, if known; and 

20 ‘‘(C) the period of time during which the elec21 tronic surveillance is approved.’’; 

22 (3) by striking subsection (d) and inserting the 

23 following: 


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1 ‘‘(d) Each order under this section shall specify the 

2 type of electronic surveillance involved, including whether 

3 physical entry is required.’’; 

4 (4) by striking paragraphs (1) and (2) of sub5 section (e) and inserting the following: 

6 ‘‘(1) An order issued under this section may approve 

7 an electronic surveillance may be for a period not to exceed 

8 1 year. If such emergency employment of electronic sur9 veillance is authorized, the official authorizing the emer10 gency employment of electronic surveillance shall require 

11 that the minimization procedures required by this title for 

12 the issuance of a judicial order be followed. 

13 ‘‘(2) Extensions of an order issued under this title 

14 may be granted on the same basis as an original order 

15 upon an application for an extension and new findings 

16 made in the same manner as required for an original order 

17 and may be for a period not to exceed 1 year.’’; 

18 (5) by striking subsection (f) and inserting the 

19 following: 

20 ‘‘(f)(1) Notwithstanding any other provision of this 

21 title, when an official authorized by the President to con22 duct electronic surveillance reasonably determines that— 

23 ‘‘(A) an emergency situation exists with respect 

24 to the employment of electronic surveillance to ob25 tain foreign intelligence information before an order 


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1 authorizing such surveillance can with due diligence 

2 be obtained; and 

3 ‘‘(B) the factual basis for issuance of an order 

4 under this title to approve such surveillance exists; 

5 that official may authorize the emergency employment of 

6 electronic surveillance in accordance with paragraph (2). 

7 ‘‘(2) Under paragraph (1), the following require8 ments shall be satisfied: 

9 ‘‘(A) The Attorney General shall be informed of 

10 the emergency electronic surveillance. 

11 ‘‘(B) A judge having jurisdiction under section 

12 103 shall be informed by the Attorney General or 

13 his designee as soon as practicable following such 

14 authorization that the decision has been made to 

15 employ emergency electronic surveillance. 

16 ‘‘(C) An application in accordance with this 

17 title shall be made to that judge or another judge 

18 having jurisdiction under section 103 as soon as 

19 practicable, but not more than 7 days after such 

20 surveillance is authorized. In the absence of a judi21 cial order approving such electronic surveillance, the 

22 surveillance shall terminate when the information 

23 sought is obtained, when the application for the 

24 order is denied, or after the expiration of 7 days 

25 from the time of emergency authorization, whichever 


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1 is earliest. In the event that such application for ap2 proval is denied, or in any other case where the elec3 tronic surveillance is terminated and no order is 

4 issued approving the surveillance, no information ob5 tained or evidence derived from such surveillance 

6 shall be received in evidence or otherwise disclosed 

7 in any trial, hearing, or other proceeding in or be8 fore any court, grand jury, department, office, agen9 cy, regulatory body, legislative committee, or other 

10 authority of the United States, a State, or political 

11 subdivision thereof, and no information concerning 

12 any United States person acquired from such sur13 veillance shall subsequently be used or disclosed in 

14 any other manner by Federal officers or employees 

15 without the consent of such person, except with the 

16 approval of the Attorney General if the information 

17 indicates a threat of death or serious bodily harm to 

18 any person. A denial of the application made under 

19 this subsection may be reviewed as provided in sec20 tion 103.’’; and 

21 (6) in subsection (i) by— 

22 (A) striking ‘‘a wire or’’ and inserting 

23 ‘‘any’’; 

24 (B) striking ‘‘chapter’’ and inserting 

25 ‘‘title’’; and 


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1 (C) by adding at the end ‘‘, or in response 

2 to certification by the Attorney General or his 

3 designee seeking information, facilities, or tech4 nical assistance from such person that does not 

5 constitute electronic surveillance as defined in 

6 section 101(f )’’. 

7 (g) USE OF INFORMATION.—Section 106 of FISA 

8 (50U.S.C. 1806) is amended— 

9 (1) in subsection (i), by— 

10 (A) deleting ‘‘radio’’; and 

11 (B) inserting ‘‘Attorney General deter12 mines that the content’’ after ‘‘contain signifi13 cant foreign intelligence or’’; and 

14 (2) in subsection (k), by deleting ‘‘104(a)(7)’’ 

15 and inserting ‘‘104(a)(6)’’. 

16 (h) CONGRESSIONAL OVERSIGHT.—Section 108 of 

17 FISA (50 U.S.C. 1808) is amended by adding at the end 

18 the following: 

19 ‘‘(c) DOCUMENT MANAGEMENT SYSTEM FOR APPLI20 CATIONS FOR ORDERS APPROVING ELECTRONIC SURVEIL21 LANCE.— 

22 ‘‘(1) SYSTEM PROPOSED.—The Attorney Gen23 eral and Director of National Intelligence shall, in 

24 consultation with the Director of the Federal Bu25 reau of Investigation, the Director of the National 


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1 Security Agency, the Director of the Central Intel2 ligence Agency, and the Foreign Intelligence Surveil3 lance Court, conduct a feasibility study to develop 

4 and implement a secure, classified document man5 agement system that permits the prompt prepara6 tion, modification, and review by appropriate per7 sonnel of the Department of Justice, the Federal 

8 Bureau of Investigation, the National Security 

9 Agency, and other applicable elements of the United 

10 States Government of applications under section 104 

11 before their submittal to the Foreign Intelligence 

12 Surveillance Court. 

13 ‘‘(2) SCOPE OF SYSTEM.—The document man14 agement system proposed in paragraph (1) shall— 

15 ‘‘(A) permit and facilitate the prompt sub16 mittal of applications and all other matters, in17 cluding electronic filings, to the Foreign Intel18 ligence Surveillance Court under section 104 or 

19 105(g)(5); and 

20 ‘‘(B) permit and facilitate the prompt 

21 transmittal of rulings of the Foreign Intel22 ligence Surveillance Court to personnel submit23 ting applications described in paragraph (1).’’. 


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1 (i) CRIMINAL SANCTIONS.—Section 109 of FISA (50 

2 U.S.C. 1809) is amended by striking subsection (a) and 

3 inserting the following: 

4 ‘‘(a) PROHIBITED ACTIVITIES.—A person is guilty of 

5 an offense if he intentionally— 

6 ‘‘(1) engages in electronic surveillance, as de7 fined in section 101(f), under color of law except as 

8 authorized by law; or 

9 ‘‘(2) discloses or uses information obtained 

10 under color of law by electronic surveillance, know11 ing or having reason to know that the information 

12 was obtained through electronic surveillance not au13 thorized by law.’’. 

14 (j) AUTHORIZATION DURING TIME OF WAR.—Title 

15 I of FISA is amended by striking section 111. 

16 (k) PHYSICAL SEARCHES.—Title III of Foreign Intel17 ligence Surveillance Act of 1978 (50 U.S.C. 1821 et seq.) 

18 is amended— 

19 (1) in section 301 (50 U.S.C. 1821), by striking 

20 paragraph (5) and inserting the following: 

21 ‘‘(5) ‘Physical search’ means any physical intru22 sion within the United States into premises or prop23 erty (including examination of the interior of prop24 erty by technical means) that is intended to result 

25 in a seizure, reproduction, inspection, or alteration 


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1 of information, material, or property, under cir2 cumstances in which a person has a reasonable ex3 pectation of privacy and a warrant would be re4 quired for law enforcement purposes, but does not 

5 include activities conducted in accordance with sec6 tions 102 or 105.’’; 

7 (2) in section 307, by striking subsection (a) 

8 and inserting the following: 

9 ‘‘(a) A person is guilty of an offense if he inten10 tionally— 

11 ‘‘(1) under color of law for the purpose of ob12 taining foreign intelligence information, executes a 

13 physical search within the United States except as 

14 authorized by statute or under the Constitution; or 

15 ‘‘(2) discloses or uses information obtained 

16 under color of law by physical search within the 

17 United States, knowing or having reason to know 

18 that the information was obtained through physical 

19 search not authorized by statute or the Constitu20 tion.’’; and 

21 (3) by striking section 309. 

22 SEC. 210. CONFORMING AMENDMENT TO TABLE OF CON23 TENTS. 

24 The table of contents for the Foreign Intelligence 

25 Surveillance Act of 1978 is amended by striking the items 


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1 related to title VII and section 701 and inserting the fol2 lowing: 

‘‘TITLE VII—ELECTRONIC SURVEILLANCE 

‘‘Sec. 701. Definition. 

‘‘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—EXECUTIVE AUTHORITY 

‘‘Sec. 801. Executive authority.’’. 


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Calendar No. 605 

109TH CONGRESS 

2D SESSION S. 3886 

A BILL 

To authorize military commissions to bring terrorposes. rorist surveillance capabilities, and for other pur- ists to justice, to strengthen and modernize terSEPTEMBER 12, 2006 

Read the second time and placed on the calendar 


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