`[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3929 Placed on Calendar Senate (PCS)]







                                                       Calendar No. 633
109th CONGRESS
  2d Session
                                S. 3929

 To authorize military commissions to bring terrorists to justice, to 
 strengthen and modernize terrorist surveillance capabilities, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 22, 2006

  Mr. McConnell (for himself and Mr. Frist) introduced the following 
bill; which was read the first time pursuant to the order of September 
              21, 2006, as modified on September 22, 2006

                           September 25, 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

                     TITLE I--MILITARY COMMISSIONS

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Military Commissions Act of 
2006''.

SEC. 102. FINDINGS.

    Congress makes the following findings:
            (1) The Constitution of the United States grants to 
        Congress the power ``To define and punish ... Offenses against 
        the Law of Nations'', as well as the power ``To declare War ... 
        To raise and support Armies ... [and] To provide and maintain a 
        Navy''.
            (2) The military commission is the traditional tribunal for 
        the trial of persons engaged in hostilities for violations of 
        the law of war.
            (3) Congress has, in the past, both authorized the use of 
        military commission by statute and recognized the existence and 
        authority of military commissions.
            (4) Military commissions have been convened both by the 
        President and by military commanders in the field to try 
        offenses against the law of war.
            (5) It is in the national interest for Congress to exercise 
        its authority under the Constitution to enact legislation 
        authorizing and regulating the use of military commissions to 
        try and punish violations of the law of war.

SEC. 103. AUTHORIZATION FOR MILITARY COMMISSIONS.

    (a) In General.--The President is authorized to establish military 
commissions for the trial of alien unlawful enemy combatants engaged in 
hostilities against the United States for violations of the law of war 
and other offenses specifically made triable by military commission as 
provided in chapter 47 of title 10, United States Code, and chapter 47A 
of title 10, United States Code (as enacted by this Act).
    (b) Construction.--The authority in subsection (a) may not be 
construed to alter or limit the authority of the President under the 
Constitution and laws of the United States to establish military 
commissions for areas declared to be under martial law or in occupied 
territories should circumstances so require.
    (c) Scope of Punishment Authority.--A military commission 
established pursuant to subsection (a) shall have authority to impose 
upon any person found guilty under a proceeding under chapter 47A of 
title 10, United States Code (as so enacted), a sentence that is 
appropriate for the offense or offenses for which there is a finding of 
guilt, including a sentence of death if authorized under such chapter, 
imprisonment for life or a term of years, payment of a fine or 
restitution, or such other lawful punishment or condition of punishment 
as the military commission shall direct.
    (d) Execution of Punishment.--The Secretary of Defense is 
authorized to carry out a sentence of punishment imposed by a military 
commission established pursuant to subsection (a) in accordance with 
such procedures as the Secretary may prescribe.
    (e) Annual Report on Trials by Military Commissions.--
            (1) Annual report required.--Not later than December 31 
        each year, the Secretary of Defense shall submit to the 
        Committees on Armed Services of the Senate and the House of 
        Representatives a report on any trials conducted by military 
        commissions established pursuant to subsection (a) during such 
        year.
            (2) Form.--Each report under this subsection shall be 
        submitted in unclassified form, but may include a classified 
        annex.

SEC. 104. MILITARY COMMISSIONS.

    (a) Military Commissions.--
            (1) In general.--Subtitle A of title 10, United States 
        Code, is amended by inserting after chapter 47 the following 
        new chapter:

                  ``CHAPTER 47A--MILITARY COMMISSIONS

``SUBCHAPTER................................................      Sec. 
``I. General Provisions.....................................     948a. 
``II. Composition of Military Commissions...................     948h. 
``III. Pre-Trial Procedure..................................     948q. 
``IV. Trial Procedure.......................................     949a. 
``V. Sentences..............................................     949s. 
``VI. Post-Trial Procedure and Review of Military                950a. 
                            Commissions.
``VII. Punitive Matters.....................................     950aa.

                   ``SUBCHAPTER I--GENERAL PROVISIONS

``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``Sec. 948a. Definitions
    ``In this chapter:
            ``(1) Alien.--The term `alien' means an individual who is 
        not a citizen of the United States.
            ``(2) Classified information.--The term `classified 
        information' means the following:
                    ``(A) Any information or material that has been 
                determined by the United States Government pursuant to 
                statute, Executive order, or regulation to require 
                protection against unauthorized disclosure for reasons 
                of national security.
                    ``(B) Any restricted data, as that term is defined 
                in section 11 y. of the Atomic Energy Act of 1954 (42 
                U.S.C. 2014(y)).
            ``(3) Lawful enemy combatant.--The term `lawful enemy 
        combatant' means an individual who is--
                    ``(A) a member of the regular forces of a State 
                party engaged in hostilities against the United States;
                    ``(B) a member of a militia, volunteer corps, or 
                organized resistance movement belonging to a State 
                party engaged in such hostilities, which are under 
                responsible command, wear a fixed distinctive sign 
                recognizable at a distance, carry their arms openly, 
                and abide by the law of war; or
                    ``(C) a member of a regular armed force who 
                professes allegiance to a government engaged in such 
                hostilities, but not recognized by the United States.
            ``(4) Unlawful enemy combatant.--The term `unlawful enemy 
        combatant' means an individual engaged in hostilities against 
        the United States who is not a lawful enemy combatant.
``Sec. 948b. Military commissions generally
    ``(a) Purpose.--This chapter establishes procedures governing the 
use of military commissions to try alien unlawful enemy combatants 
engaged in hostilities against the United States for violations of the 
law of war and other offenses triable by military commission.
    ``(b) Construction of Provisions.--The procedures for military 
commissions set forth in this chapter are based upon the procedures for 
trial by general courts-martial under chapter 47 of this title (the 
Uniform Code of Military Justice). Chapter 47 of this title does not, 
by its terms, apply to trial by military commission except as 
specifically provided therein or in this chapter, and many of the 
provisions of chapter 47 of this title are by their terms inapplicable 
to military commissions. The judicial construction and application of 
chapter 47 of this title is therefore not binding on military 
commissions established under this chapter.
    ``(c) Inapplicability of Certain Provisions.--(1) The following 
provisions of this title shall not apply to trial by military 
commission under this chapter:
            ``(A) Section 810 (article 10 of the Uniform Code of 
        Military Justice), relating to speedy trial, including any rule 
        of courts-martial relating to speedy trial.
            ``(B) Sections 831(a), (b), and (d) (articles 31(a), (b), 
        and (d) of the Uniform Code of Military Justice), relating to 
        compulsory self-incrimination.
            ``(C) Section 832 (article 32 of the Uniform Code of 
        Military Justice), relating to pretrial investigation.
    ``(2) Other provisions of chapter 47 of this title shall apply to 
trial by military commission under this chapter only to the extent 
provided by the terms of such provisions or by this chapter.
    ``(d) Status of Military Commissions Under Common Article 3.--A 
military commission established under this chapter is a regularly 
constituted court, affording all the necessary `judicial guarantees 
which are recognized as indispensable by civilized peoples' for 
purposes of common Article 3 of the Geneva Conventions.
    ``(e) Treatment of Rulings and Precedents.--The findings, holdings, 
interpretations, and other precedents of military commissions under 
this chapter may not be introduced or considered in any hearing, trial, 
or other proceeding of a court-martial convened under chapter 47 of 
this title. The findings, holdings, interpretations, and other 
precedents of military commissions under this chapter may not form the 
basis of any holding, decision, or other determination of a court-
martial convened under that chapter.
    ``(f) Geneva Conventions Not Establishing Source of Rights.--No 
alien enemy unlawful combatant subject to trial by military commission 
under this chapter may invoke the Geneva Conventions as a source of 
rights at his trial by military commission.
``Sec. 948c. Persons subject to military commissions
    ``Any alien unlawful enemy combatant engaged in hostilities or 
having supported hostilities against the United States is subject to 
trial by military commission as set forth in this chapter.
``Sec. 948d. Jurisdiction of military commissions
    ``(a) Jurisdiction.--A military commission under this chapter shall 
have jurisdiction to try any offense made punishable by this chapter, 
sections 904 and 906 of this title (articles 104 and 106 of the Uniform 
Code of Military Justice), or the law of war when committed by an alien 
unlawful enemy combatant before, on, or after September 11, 2001.
    ``(b) Lawful Enemy Combatants.--Military commissions under this 
chapter shall not have jurisdiction over lawful enemy combatants. 
Lawful enemy combatants who violate the law of war are subject to 
chapter 47 of this title. Courts-martial established under that chapter 
shall have jurisdiction to try a lawful enemy combatant for any offense 
made punishable under this chapter.
    ``(c) Punishments.--A miliary commission under this chapter may, 
under such limitations as the President may prescribe, adjudge any 
punishment not forbidden by this chapter, including the penalty of 
death when authorized under this chapter, chapter 47 of this title, or 
the law of war.

          ``SUBCHAPTER II--COMPOSITION OF MILITARY 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.
``Sec. 948h. Who may convene military commissions
    ``Military commissions under this chapter may be convened by the 
Secretary of Defense or by any officer or official of the United States 
designated by the Secretary for that purpose.
``Sec. 948i. Who may serve on military commissions
    ``(a) In General.--Any commissioned officer of the armed forces on 
active duty is eligible to serve on a military commission under this 
chapter, including commissioned officers of the reserve components of 
the armed forces on active duty, commissioned officers of the National 
Guard on active duty in Federal service, or retired commissioned 
officers recalled to active duty.
    ``(b) Detail of Members.--When convening a military commission 
under this chapter, the convening authority shall detail as members 
thereof such members of the armed forces eligible under subsection (a) 
who, as in the opinion of the convening authority, are best qualified 
for the duty by reason of age, education, training, experience, length 
of service, and judicial temperament. No member of an armed force is 
eligible to serve as a member of a military commission when such member 
is the accuser or a witness for the prosecution or has acted as an 
investigator or counsel in the same case.
    ``(c) Excuse of Members.--Before a military commission under this 
chapter is assembled for the trial of a case, the convening authority 
may excuse a member from participating in the case.
``Sec. 948j. Military judge of a military commission
    ``(a) Detail of Military Judge.--A military judge shall be detailed 
to each military commission under this chapter. The Secretary of 
Defense shall prescribe regulations providing for the manner in which 
military judges are so detailed to military commissions. The military 
judge shall preside over each military commission to which he has been 
detailed.
    ``(b) Eligibility.--A military judge shall be a commissioned 
officer of the armed forces who is a member of the bar of a Federal 
court, or a member of the bar of the highest court of a State, and who 
is certified to be qualified for duty under section 826 of this title 
(article 26 of the Uniform Code of Military Justice) as a military 
judge in general courts-martial by the Judge Advocate General of the 
armed force of which such military judge is a member.
    ``(c) Ineligibility of Certain Individuals.--No person is eligible 
to act as military judge in a case of a military commission under this 
chapter if he is the accuser or a witness or has acted as investigator 
or a counsel in the same case.
    ``(d) Consultation With Members; Ineligibility to Vote.--A military 
judge detailed to a military commission under this chapter may not 
consult with the members except in the presence of the accused (except 
as otherwise provided in section 949d of this title), trial counsel, 
and defense counsel, nor may he vote with the members.
    ``(e) Other Duties.--A commissioned officer who is certified to be 
qualified for duty as a military judge of a military commission under 
this chapter may perform such other duties as are assigned to him by or 
with the approval of the Judge Advocate General of the armed force of 
which such officer is a member or the designee of such Judge Advocate 
General.
    ``(f) Prohibition on Evaluation of Fitness by Convening 
Authority.--The convening authority of a military commission under this 
chapter shall not prepare or review any report concerning the 
effectiveness, fitness, or efficiency of a military judge detailed to 
the military commission which relates to his performance of duty as a 
military judge on the military commission.
``Sec. 948k. Detail of trial counsel and defense counsel
    ``(a) Detail of Counsel Generally.--(1) Trial counsel and military 
defense counsel shall be detailed for each military commission under 
this chapter.
    ``(2) Assistant trial counsel and assistant and associate defense 
counsel may be detailed for a military commission under this chapter.
    ``(3) Military defense counsel for a military commission under this 
chapter shall be detailed as soon as practicable after the swearing of 
charges.
    ``(4) The Secretary of Defense shall prescribe regulations 
providing for the manner in which trial counsel and military defense 
counsel are detailed for military commissions under this chapter and 
for the persons who are authorized to detail such counsel for such 
military commissions.
    ``(b) Trial Counsel.--Subject to subsection (e), trial counsel 
detailed for a military commission under this chapter must be--
            ``(1) a judge advocate (as that term is defined in section 
        801 of this title (article 1 of the Uniform Code of Military 
        Justice)) who is--
                    ``(A) a graduate of an accredited law school or is 
                a member of the bar of a Federal court or of the 
                highest court of a State; and
                    ``(B) certified as competent to perform duties as 
                trial counsel before general courts-martial by the 
                Judge Advocate General of the armed force of which he 
                is a member; or
            ``(2) a civilian who is--
                    ``(A) a member of the bar of a Federal court or of 
                the highest court of a State; and
                    ``(B) otherwise qualified to practice before the 
                military commission pursuant to regulations prescribed 
                by the Secretary of Defense.
    ``(c) Military Defense Counsel.--Subject to subsection (e), 
military defense counsel detailed for a military commission under this 
chapter must be a judge advocate (as so defined) who is--
            ``(1) a graduate of an accredited law school or is a member 
        of the bar of a Federal court or of the highest court of a 
        State; and
            ``(2) certified as competent to perform duties as defense 
        counsel before general courts-martial by the Judge Advocate 
        General of the armed force of which he is a member.
    ``(d) Chief Prosecutor; Chief Defense Counsel.--(1) The Chief 
Prosecutor in a military commission under this chapter shall meet the 
requirements set forth in subsection (b)(1).
    ``(2) The Chief Defense Counsel in a military commission under this 
chapter shall meet the requirements set forth in subsection (c)(1).
    ``(e) Ineligibility of Certain Individuals.--No person who has 
acted as an investigator, military judge, or member of a military 
commission under this chapter in any case may act later as trial 
counsel or military defense counsel in the same case. No person who has 
acted for the prosecution before a military commission under this 
chapter may act later in the same case for the defense, nor may any 
person who has acted for the defense before a military commission under 
this chapter act later in the same case for the prosecution.
``Sec. 948l. Detail or employment of reporters and interpreters
    ``(a) Court Reporters.--Under such regulations as the Secretary of 
Defense may prescribe, the convening authority of a military commission 
under this chapter shall detail to or employ for the military 
commission qualified court reporters, who shall prepare a verbatim 
record of the proceedings of and testimony taken before the military 
commission.
    ``(b) Interpreters.--Under such regulations as the Secretary of 
Defense may prescribe, the convening authority of a military commission 
under this chapter may detail to or employ for the military commission 
interpreters who shall interpret for the military commission, and, as 
necessary, for trial counsel and defense counsel for the military 
commission, and for the accused.
    ``(c) Transcript; Record.--The transcript of a military commission 
under this chapter shall be under the control of the convening 
authority of the military commission, who shall also be responsible for 
preparing the record of the proceedings of the military commission.
``Sec. 948m. Number of members; excuse of members; absent and 
              additional members
    ``(a) Number of Members.--(1) A military commission under this 
chapter shall, except as provided in paragraph (2), have at least five 
members.
    ``(2) In a case in which the accused before a military commission 
under this chapter may be sentenced to a penalty of death, the military 
commission shall have the number of members prescribed by section 
949m(c) of this title.
    ``(b) Excuse of Members.--No member of a military commission under 
this chapter may be absent or excused after the military commission has 
been assembled for the trial of a case unless excused--
            ``(1) as a result of challenge;
            ``(2) by the military judge for physical disability or 
        other good cause; or
            ``(3) by order of the convening authority for good cause.
    ``(c) Absent and Additional Members.--Whenever a military 
commission under this chapter is reduced below the number of members 
required by subsection (a), the trial may not proceed unless the 
convening authority details new members sufficient to provide not less 
than such number. The trial may proceed with the new members present 
after the recorded evidence previously introduced before the members 
has been read to the military commission in the presence of the 
military judge, the accused (except as provided in section 949d of this 
title), and counsel for both sides.

                 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; statements obtained 
                            by torture or other methods of coercion.
``948s. Service of charges.
``Sec. 948q. Charges and specifications
    ``(a) Charges and Specifications.--Charges and specifications 
against an accused in a military commission under this chapter shall be 
signed by a person subject to chapter 47 of this title under oath 
before a commissioned officer of the armed forces authorized to 
administer oaths and shall state--
            ``(1) that the signer has personal knowledge of, or reason 
        to believe, the matters set forth therein; and
            ``(2) that they are true in fact to the best of his 
        knowledge and belief.
    ``(b) Notice to Accused.--Upon the swearing of the charges and 
specifications in accordance with subsection (a), the accused shall be 
informed of the charges and specifications against him as soon as 
practicable.
``Sec. 948r. Compulsory self-incrimination prohibited; statements 
              obtained by torture or other methods of coercion
    ``(a) In General.--No person shall be required to testify against 
himself at a proceeding of a military commission under this chapter.
    ``(b) Statements Obtained by Torture.--A statement obtained by use 
of torture shall not be admissible in a military commission under this 
chapter, except against a person accused of torture as evidence the 
statement was made.
    ``(c) Statements Obtained Before Enactment of Detainee Treatment 
Act of 2005.--A statement obtained before December 30, 2005 (the date 
of the enactment of the Detainee Treatment Act of 2005), in which the 
degree of coercion is disputed may be admitted only if the military 
judge finds that--
            ``(1) the totality of the circumstances renders it reliable 
        and possessing sufficient probative value; and
            ``(2) the interests of justice would best be served by 
        admission of the statement into evidence.
    ``(d) Statements Obtained After Enactment of Detainee Treatment Act 
of 2005.--A statement obtained on or after December 30, 2005 (the date 
of the enactment of the Detainee Treatment Act of 2005), in which the 
degree of coercion is disputed may be admitted only if the military 
judge finds that--
            ``(1) the totality of the circumstances renders it reliable 
        and possessing sufficient probative value;
            ``(2) the interests of justice would best be served by 
        admission of the statement into evidence; and
            ``(3) the interrogation methods used to obtain the 
        statement do not violate the cruel, unusual, or inhumane 
        treatment or punishment prohibited by the Fifth, Eighth, and 
        14th Amendments to the United States Constitution.
``Sec. 948s. Service of charges
    ``The trial counsel assigned to a case before a military commission 
under this chapter shall cause to be served upon the accused and 
military defense counsel a copy of the charges upon which trial is to 
be had in English and, if appropriate, in another language that the 
accused understands, sufficiently in advance of trial to prepare a 
defense.

                    ``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.
``Sec. 949a. Rules
    ``(a) Procedures and Rules of Evidence.--Pretrial, trial, and post-
trial procedures, including elements and modes of proof, for cases 
triable by military commission under this chapter may be prescribed by 
the Secretary of Defense. Such procedures may not be contrary to or 
inconsistent with this chapter. Except as otherwise provided in this 
chapter or chapter 47 of this title, the procedures and rules of 
evidence applicable in trials by general courts-martial of the United 
States shall apply in trials by military commission under this chapter.
    ``(b) Exceptions.--(1) The Secretary of Defense, in consultation 
with the Attorney General, may make such exceptions in the 
applicability in trials by military commission under this chapter from 
the procedures and rules of evidence otherwise applicable in general 
courts-martial as may be required by the unique circumstances of the 
conduct of military and intelligence operations during hostilities or 
by other practical need.
    ``(2) Notwithstanding any exceptions authorized by paragraph (1), 
the procedures and rules of evidence in trials by military commission 
under this chapter shall include, at a minimum, the following rights:
            ``(A) To examine and respond to all evidence considered by 
        the military commission on the issue of guilt or innocence and 
        for sentencing.
            ``(B) To be present at all sessions of the military 
        commission (other than those for deliberations or voting), 
        except when excluded under section 949d of this title.
            ``(C) To the assistance of counsel.
            ``(D) To self-representation, if the accused knowingly and 
        competently waives the assistance of counsel, subject to the 
        provisions of paragraph (4).
            ``(E) To the suppression of evidence that is not reliable 
        or probative.
            ``(F) To the suppression of evidence the probative value of 
        which is substantially outweighed by--
                    ``(i) the danger of unfair prejudice, confusion of 
                the issues, or misleading the members; or
                    ``(ii) considerations of undue delay, waste of 
                time, or needless presentation of cumulative evidence.
    ``(3) In making exceptions in the applicability in trials by 
military commission under this chapter from the procedures and rules 
otherwise applicable in general courts-martial, the Secretary of 
Defense may provide the following:
            ``(A) Evidence seized outside the United States shall not 
        be excluded from trial by military commission on the grounds 
        that the evidence was not seized pursuant to a search warrant 
        or authorization.
            ``(B) A statement of the accused that is otherwise 
        admissible shall not be excluded from trial by military 
        commission on grounds of alleged coercion or compulsory self-
        incrimination so long as the evidence complies with the 
        provisions of section 948r of this title.
            ``(C) Evidence shall be admitted as authentic so long as--
                    ``(i) the military judge of the military commission 
                determines that there is sufficient evidence that the 
                evidence is what it is claimed to be; and
                    ``(ii) the military judge instructs the members 
                that they may consider any issue as to authentication 
                or identification of evidence in determining the 
                weight, if any, to be given to the evidence.
            ``(D)(i) Except as provided in clause (ii), hearsay 
        evidence not otherwise admissible under the rules of evidence 
        applicable in trial by general courts-martial may be admitted 
        in a trial by military commission if the proponent of the 
        evidence makes known to the adverse party, sufficiently in 
        advance to provide the adverse party with a fair opportunity to 
        meet the evidence, the intention of the proponent to offer the 
        evidence, and the particulars of the evidence (including 
        information on the general circumstances under which the 
        evidence was obtained). The disclosure of evidence under this 
        clause is subject to the requirements and limitations 
        applicable to the disclosure of classified information in 
        section 949j(b) of this title.
            ``(ii) Hearsay evidence not otherwise admissible under the 
        rules of evidence applicable in trial by general courts-martial 
        shall not be admitted in a trial by military commission if the 
        party opposing the admission of the evidence demonstrates that 
        the evidence is unreliable or lacking in probative value.
    ``(4)(A) The accused in a military commission under this chapter 
who exercises the right to self-representation under paragraph (2)(D) 
shall conform his deportment and the conduct of the defense to the 
rules of evidence, procedure, and decorum applicable to trials by 
military commission.
    ``(B) Failure of the accused to conform to the rules described in 
subparagraph (A) may result in a partial or total revocation by the 
military judge of the right of self-representation under paragraph 
(2)(D). In such case, the detailed defense counsel of the accused or an 
appropriately authorized civilian counsel shall perform the functions 
necessary for the defense.
    ``(c) Delegation of Authority to Prescribe Regulations.--The 
Secretary of Defense may delegate the authority of the Secretary to 
prescribe regulations under this chapter.
``Sec. 949b. Unlawfully influencing action of military commission
    ``(a) In General.--(1) No authority convening a military commission 
under this chapter may censure, reprimand, or admonish the military 
commission, or any member, military judge, or counsel thereof, with 
respect to the findings or sentence adjudged by the military 
commission, or with respect to any other exercises of its or their 
functions in the conduct of the proceedings.
    ``(2) No person may attempt to coerce or, by any unauthorized 
means, influence--
            ``(A) the action of a military commission under this 
        chapter, or any member thereof, in reaching the findings or 
        sentence in any case;
            ``(B) the action of any convening, approving, or reviewing 
        authority with respect to their judicial acts; or
            ``(C) the exercise of professional judgment by trial 
        counsel or defense counsel.
    ``(3) The provisions of this subsection shall not apply with 
respect to--
            ``(A) general instructional or informational courses in 
        military justice if such courses are designed solely for the 
        purpose of instructing members of a command in the substantive 
        and procedural aspects of military commissions; or
            ``(B) statements and instructions given in open proceedings 
        by a military judge or counsel.
    ``(b) Prohibition on Consideration of Actions on Commission in 
Evaluation of Fitness.--In the preparation of an effectiveness, 
fitness, or efficiency report or any other report or document used in 
whole or in part for the purpose of determining whether a commissioned 
officer of the armed forces is qualified to be advanced in grade, or in 
determining the assignment or transfer of any such officer or whether 
any such officer should be retained on active duty, no person may--
            ``(1) consider or evaluate the performance of duty of any 
        member of a military commission under this chapter; or
            ``(2) give a less favorable rating or evaluation to any 
        commissioned officer because of the zeal with which such 
        officer, in acting as counsel, represented any accused before a 
        military commission under this chapter.
``Sec. 949c. Duties of trial counsel and defense counsel
    ``(a) Trial Counsel.--The trial counsel of a military commission 
under this chapter shall prosecute in the name of the United States.
    ``(b) Defense Counsel.--(1) The accused shall be represented in his 
defense before a military commission under this chapter as provided in 
this subsection.
    ``(2) The accused shall be represented by military counsel detailed 
under section 948k of this title.
    ``(3) The accused may be represented by civilian counsel if 
retained by the accused, provided that such civilian counsel--
            ``(A) is a United States citizen;
            ``(B) is admitted to the practice of law in a State, 
        district, or possession of the United States, or before a 
        Federal court;
            ``(C) has not been the subject of any sanction of 
        disciplinary action by any court, bar, or other competent 
        governmental authority for relevant misconduct;
            ``(D) has been determined to be eligible for access to 
        information classified at the level Secret or higher; and
            ``(E) has signed a written agreement to comply with all 
        applicable regulations or instructions for counsel, including 
        any rules of court for conduct during the proceedings.
    ``(4) If the accused is represented by civilian counsel, military 
counsel detailed shall act as associate counsel.
    ``(5) The accused is not entitled to be represented by more than 
one military counsel. However, the person authorized under regulations 
prescribed under section 948k of this title to detail counsel, in such 
person's sole discretion, may detail additional military counsel to 
represent the accused.
    ``(6) Defense counsel may cross-examine each witness for the 
prosecution who testifies before a military commission under this 
chapter.
``Sec. 949d. Sessions
    ``(a) Sessions Without Presence of Members.--(1) At any time after 
the service of charges which have been referred for trial by military 
commission under this chapter, the military judge may call the military 
commission into session without the presence of the members for the 
purpose of--
            ``(A) hearing and determining motions raising defenses or 
        objections which are capable of determination without trial of 
        the issues raised by a plea of not guilty;
            ``(B) hearing and ruling upon any matter which may be ruled 
        upon by the military judge under this chapter, whether or not 
        the matter is appropriate for later consideration or decision 
        by the members;
            ``(C) if permitted by regulations prescribed by the 
        Secretary of Defense, receiving the pleas of the accused; and
            ``(D) performing any other procedural function which may be 
        performed by the military judge under this chapter or under 
        rules prescribed pursuant to section 949a of this title and 
        which does not require the presence of the members.
    ``(2) Except as provided in subsections (b), (c), and (d), any 
proceedings under paragraph (1) shall be conducted in the presence of 
the accused, defense counsel, and trial counsel, and shall be made part 
of the record.
    ``(b) Deliberation or Vote of Members.--When the members of a 
military commission under this chapter deliberate or vote, only the 
members may be present.
    ``(c) Closure of Proceedings.--(1) The military judge may close to 
the public all or part of the proceedings of a military commission 
under this chapter.
    ``(2) The military judge may close to the public all or a portion 
of the proceedings under paragraph (1) only upon making a specific 
finding that such closure is necessary to--
            ``(A) protect information the disclosure of which could 
        reasonably be expected to cause damage to the national 
        security, including intelligence or law enforcement sources, 
        methods, or activities; or
            ``(B) ensure the physical safety of individuals.
    ``(3) A finding under paragraph (2) may be based upon a 
presentation, including a presentation ex parte or in camera, by either 
trial counsel or defense counsel.
    ``(d) Exclusion of Accused From Certain Proceedings.--The military 
judge may exclude the accused from any portion of a proceeding upon a 
determination that, after being warned by the military judge, the 
accused persists in conduct that justifies exclusion from the 
courtroom--
            ``(1) to ensure the physical safety of individuals; or
            ``(2) to prevent disruption of the proceedings by the 
        accused.
    ``(e) Protection of Classified Information.--
            ``(1) National security privilege.--(A) Classified 
        information shall be protected and is privileged from 
        disclosure if disclosure would be detrimental to the national 
        security. This rule applies to all stages of the proceedings of 
        military commissions under this chapter.
            ``(B) The privilege referred to in subparagraph (A) may be 
        claimed by the head of the executive or military department or 
        government agency concerned based on a finding by the head of 
        that department or agency that--
                    ``(i) the information is properly classified; and
                    ``(ii) disclosure would be detrimental to the 
                national security.
            ``(C) A person who may claim the privilege referred to in 
        subparagraph (A) may authorize a representative, witness, or 
        trial counsel to claim the privilege and make the finding 
        described in subparagraph (B) on behalf of such person. The 
        authority of the representative, witness, or trial counsel to 
        do so is presumed in the absence of evidence to the contrary.
            ``(2) Introduction of classified information.--
                    ``(A) Alternatives to disclosure.--To protect 
                classified information from disclosure, the military 
                judge, upon motion of trial counsel, shall authorize, 
                to the extent practicable--
                            ``(i) the deletion of specified items of 
                        classified information from documents to be 
                        introduced as evidence before the military 
                        commission;
                            ``(ii) the substitution of a portion or 
                        summary of the information for such classified 
                        documents; or
                            ``(iii) the substitution of a statement of 
                        relevant facts that the classified information 
                        would tend to prove.
                    ``(B) Protection of sources, methods, or 
                activities.--The military judge, upon motion of trial 
                counsel, shall permit trial counsel to introduce 
                otherwise admissible evidence before the military 
                commission, while protecting from disclosure the 
                sources, methods, or activities by which the United 
                States acquired the evidence if the military judge 
                finds that (i) the sources, methods, or activities by 
                which the United States acquired the evidence are 
                classified, and (ii) the evidence is reliable. The 
                military judge may require trial counsel to present to 
                the military commission and the defense, to the extent 
                practicable and consistent with national security, an 
                unclassified summary of the sources, methods, or 
                activities by which the United States acquired the 
                evidence.
                    ``(C) Assertion of national security privilege at 
                trial.--During the examination of any witness, trial 
                counsel may object to any question, line of inquiry, or 
                motion to admit evidence that would require the 
                disclosure of classified information. Following such an 
                objection, the military judge shall take suitable 
                action to safeguard such classified information. Such 
                action may include the review of trial counsel's claim 
                of privilege by the military judge in camera and on an 
                ex parte basis, and the delay of proceedings to permit 
                trial counsel to consult with the department or agency 
                concerned as to whether the national security privilege 
                should be asserted.
            ``(3) Consideration of privilege and related materials.--A 
        claim of privilege under this subsection, and any materials 
        submitted in support thereof, shall, upon request of the 
        Government, be considered by the military judge in camera and 
        shall not be disclosed to the accused.
            ``(4) Additional regulations.--The Secretary of Defense may 
        prescribe additional regulations, consistent with this 
        subsection, for the use and protection of classified 
        information during proceedings of military commissions under 
        this chapter. A report on any regulations so prescribed, or 
        modified, shall be submitted to the Committees on Armed 
        Services of the Senate and the House of Representatives not 
        later than 60 days before the date on which such regulations or 
        modifications, as the case may be, go into effect.
``Sec. 949e. Continuances
    ``The military judge in a military commission under this chapter 
may, for reasonable cause, grant a continuance to any party for such 
time, and as often, as may appear to be just.
``Sec. 949f. Challenges
    ``(a) Challenges Authorized.--The military judge and members of a 
military commission under this chapter may be challenged by the accused 
or trial counsel for cause stated to the military commission. The 
military judge shall determine the relevance and validity of challenges 
for cause, and may not receive a challenge to more than one person at a 
time. Challenges by trial counsel shall ordinarily be presented and 
decided before those by the accused are offered.
    ``(b) Peremptory Challenges.--The accused and trial counsel are 
each entitled to one peremptory challenge, but the military judge may 
not be challenged except for cause.
    ``(c) Challenges Against Additional Members.--Whenever additional 
members are detailed to a military commission under this chapter, and 
after any challenges for cause against such additional members are 
presented and decided, the accused and trial counsel are each entitled 
to one peremptory challenge against members not previously subject to 
peremptory challenge.
``Sec. 949g. Oaths
    ``(a) In General.--(1) Before performing their respective duties in 
a military commission under this chapter, military judges, members, 
trial counsel, defense counsel, reporters, and interpreters shall take 
an oath to perform their duties faithfully.
    ``(2) The form of the oath required by paragraph (1), the time and 
place of the taking thereof, the manner of recording thereof, and 
whether the oath shall be taken for all cases in which duties are to be 
performed or for a particular case, shall be as provided in regulations 
prescribed by the Secretary of Defense. The regulations may provide 
that--
            ``(A) an oath to perform faithfully duties as a military 
        judge, trial counsel, or defense counsel may be taken at any 
        time by any judge advocate or other person certified to be 
        qualified or competent for the duty; and
            ``(B) if such an oath is taken, such oath need not again be 
        taken at the time the judge advocate or other person is 
        detailed to that duty.
    ``(b) Witnesses.--Each witness before a military commission under 
this chapter shall be examined on oath.
    ``(c) Oath Defined.--In this section, the term `oath' includes an 
affirmation.
``Sec. 949h. Former jeopardy
    ``(a) In General.--No person may, without his consent, be tried by 
a military commission under this chapter a second time for the same 
offense.
    ``(b) Scope of Trial.--No proceeding in which the accused has been 
found guilty by military commission under this chapter upon any charge 
or specification is a trial in the sense of this section until the 
finding of guilty has become final after review of the case has been 
fully completed.
``Sec. 949i. Pleas of the accused
    ``(a) Plea of Not Guilty.--If an accused in a military commission 
under this chapter after a plea of guilty sets up matter inconsistent 
with the plea, or if it appears that the accused has entered the plea 
of guilty through lack of understanding of its meaning and effect, or 
if the accused fails or refuses to plead, a plea of not guilty shall be 
entered in the record, and the military commission shall proceed as 
though the accused had pleaded not guilty.
    ``(b) Finding of Guilt After Guilty Plea.--With respect to any 
charge or specification to which a plea of guilty has been made by the 
accused in a military commission under this chapter and accepted by the 
military judge, a finding of guilty of the charge or specification may 
be entered immediately without a vote. The finding shall constitute the 
finding of the military commission unless the plea of guilty is 
withdrawn prior to announcement of the sentence, in which event the 
proceedings shall continue as though the accused had pleaded not 
guilty.
``Sec. 949j. Opportunity to obtain witnesses and other evidence
    ``(a) In General.--(1) Defense counsel in a military commission 
under this chapter shall have a reasonable opportunity to obtain 
witnesses and other evidence as provided in regulations prescribed by 
the Secretary of Defense.
    ``(2) Process issued in military commissions under this chapter to 
compel witnesses to appear and testify and to compel the production of 
other evidence--
            ``(A) shall be similar to that which courts of the United 
        States having criminal jurisdiction may lawfully issue; and
            ``(B) shall run to any place where the United States shall 
        have jurisdiction thereof.
    ``(b) Protection of Classified Information.--(1) With respect to 
the discovery obligations of trial counsel under this section, the 
military judge, upon motion of trial counsel, shall authorize, to the 
extent practicable--
            ``(A) the deletion of specified items of classified 
        information from documents to be made available to the accused;
            ``(B) the substitution of a portion or summary of the 
        information for such classified documents; or
            ``(C) the substitution of a statement admitting relevant 
        facts that the classified information would tend prove.
    ``(2) The military judge, upon motion of trial counsel, shall 
authorize trial counsel, in the course of complying with discovery 
obligations under this section, to protect from disclosure the sources, 
methods, or activities by which the United States acquired evidence if 
the military judge finds that the sources, methods, or activities by 
which the United States acquired such evidence are classified. The 
military judge may require trial counsel to provide, to the extent 
practicable, an unclassified summary of the sources, methods, or 
activities by which the United States acquired such evidence.
    ``(c) Exculpatory Evidence.--(1) As soon as practicable, trial 
counsel shall disclose to the defense the existence of any evidence 
known to trial counsel that reasonably tends to exculpate the accused. 
Where exculpatory evidence is classified, the accused shall be provided 
with an adequate substitute in accordance with the procedures under 
subsection (b).
    ``(2) In this subsection, the term `evidence known to trial 
counsel', in the case of exculpatory evidence, means exculpatory 
evidence that the prosecution would be required to disclose in a trial 
by courts-martial under chapter 47 of this title.
``Sec. 949k. Defense of lack of mental responsibility
    ``(a) Affirmative Defense.--It is an affirmative defense in a trial 
by military commission under this chapter that, at the time of the 
commission of the acts constituting the offense, the accused, as a 
result of a severe mental disease or defect, was unable to appreciate 
the nature and quality or the wrongfulness of the acts. Mental disease 
or defect does not otherwise constitute a defense.
    ``(b) Burden of Proof.--The accused in a military commission under 
this chapter has the burden of proving the defense of lack of mental 
responsibility by clear and convincing evidence.
    ``(c) Findings Following Assertion of Defense.--Whenever lack of 
mental responsibility of the accused with respect to an offense is 
properly at issue in a military commission under this chapter, the 
military judge shall instruct the members as to the defense of lack of 
mental responsibility under this section and shall charge the members 
to find the accused--
            ``(1) guilty;
            ``(2) not guilty; or
            ``(3) subject to subsection (d), not guilty by reason of 
        lack of mental responsibility.
    ``(d) Majority Vote Required for Finding.--The accused shall be 
found not guilty by reason of lack of mental responsibility under 
subsection (c)(3) only if a majority of the members present at the time 
the vote is taken determines that the defense of lack of mental 
responsibility has been established.
``Sec. 949l. Voting and rulings
    ``(a) Vote by Secret Written Ballot.--Voting by members of a 
military commission under this chapter on the findings and on the 
sentence shall be by secret written ballot.
    ``(b) Rulings.--(1) The military judge in a military commission 
under this chapter shall rule upon all questions of law, including the 
admissibility of evidence and all interlocutory questions arising 
during the proceedings.
    ``(2) Any ruling made by the military judge upon a question of law 
or an interlocutory question (other than the factual issue of mental 
responsibility of the accused) is conclusive and constitutes the ruling 
of the military commission. However, a military judge may change his 
ruling at any time during the trial.
    ``(c) Instructions Prior to Vote.--Before a vote is taken of the 
findings of a military commission under this chapter, the military 
judge shall, in the presence of the accused and counsel, instruct the 
members as to the elements of the offense and charge the members--
            ``(1) that the accused must be presumed to be innocent 
        until his guilt is established by legal and competent evidence 
        beyond a reasonable doubt;
            ``(2) that in the case being considered, if there is a 
        reasonable doubt as to the guilt of the accused, the doubt must 
        be resolved in favor of the accused and he must be acquitted;
            ``(3) that, if there is reasonable doubt as to the degree 
        of guilt, the finding must be in a lower degree as to which 
        there is no reasonable doubt; and
            ``(4) that the burden of proof to establish the guilt of 
        the accused beyond a reasonable doubt is upon the United 
        States.
``Sec. 949m. Number of votes required
    ``(a) Conviction.--No person may be convicted by a military 
commission under this chapter of any offense, except as provided in 
section 949i(b) of this title or by concurrence of two-thirds of the 
members present at the time the vote is taken.
    ``(b) Sentences.--(1) Except as provided in paragraphs (2) and (3), 
sentences shall be determined by a military commission by the 
concurrence of two-thirds of the members present at the time the vote 
is taken.
    ``(2) No person may be sentenced to death by a military commission, 
except insofar as--
            ``(A) the penalty of death has been expressly authorized 
        under this chapter, chapter 47 of this title, or the law of war 
        for an offense of which the accused has been found guilty;
            ``(B) trial counsel expressly sought the penalty of death 
        by filing an appropriate notice in advance of trial;
            ``(C) the accused was convicted of the offense by the 
        concurrence of all the members present at the time the vote is 
        taken; and
            ``(D) all members present at the time the vote was taken 
        concurred in the sentence of death.
    ``(3) No person may be sentenced to life imprisonment, or to 
confinement for more than 10 years, by a military commission under this 
chapter except by the concurrence of three-fourths of the members 
present at the time the vote is taken.
    ``(c) Number of Members Required for Penalty of Death.--(1) Except 
as provided in paragraph (2), in a case in which the penalty of death 
is sought, the number of members of the military commission under this 
chapter shall be not less than 12 members.
    ``(2) In any case described in paragraph (1) in which 12 members 
are not reasonably available for a military commission because of 
physical conditions or military exigencies, the convening authority 
shall specify a lesser number of members for the military commission 
(but not fewer than 5 members), and the military commission may be 
assembled, and the trial held, with not less than the number of members 
so specified. In any such case, the convening authority shall make a 
detailed written statement, to be appended to the record, stating why a 
greater number of members were not reasonably available.
``Sec. 949n. Military commission to announce action
    ``A military commission under this chapter shall announce its 
findings and sentence to the parties as soon as determined.
``Sec. 949o. Record of trial
    ``(a) Record; Authentication.--Each military commission under this 
chapter shall keep a separate, verbatim, record of the proceedings in 
each case brought before it, and the record shall be authenticated by 
the signature of the military judge. If the record cannot be 
authenticated by the military judge by reason of his death, disability, 
or absence, it shall be authenticated by the signature of the trial 
counsel or by a member if the trial counsel is unable to authenticate 
it by reason of his death, disability, or absence. Where appropriate, 
and as provided in regulations prescribed by the Secretary of Defense, 
the record of a military commission under this chapter may contain a 
classified annex.
    ``(b) Complete Record Required.--A complete record of the 
proceedings and testimony shall be prepared in every military 
commission under this chapter.
    ``(c) Provision of Copy to Accused.--A copy of the record of the 
proceedings of the military commission under this chapter shall be 
given the accused as soon as it is authenticated. If the record 
contains classified information, or a classified annex, the accused 
shall receive a redacted version of the record consistent with the 
requirements of section 949d(e) of this title. Defense counsel shall 
have access to the unredacted record, as provided in regulations 
prescribed by the Secretary of Defense.

                       ``SUBCHAPTER V--SENTENCES

``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.
``Sec. 949s. Cruel or unusual punishments prohibited
    ``Punishment by flogging, or by branding, marking, or tattooing on 
the body, or any other cruel or unusual punishment, may not be adjudged 
by a military commission under this chapter or inflicted under this 
chapter upon any person subject to this chapter. The use of irons, 
single or double, except for the purpose of safe custody, is prohibited 
under this chapter.
``Sec. 949t. Maximum limits
    ``The punishment which a military commission under this chapter may 
direct for an offense may not exceed such limits as the President or 
Secretary of Defense may prescribe for that offense.
``Sec. 949u. Execution of confinement
    ``(a) In General.--Under such regulations as the Secretary of 
Defense may prescribe, a sentence of confinement adjudged by a military 
commission under this chapter may be carried into execution by 
confinement--
            ``(1) in any place of confinement under the control of any 
        of the armed forces; or
            ``(2) in any penal or correctional institution under the 
        control of the United States or its allies, or which the United 
        States may be allowed to use.
    ``(b) Treatment During Confinement by Other Than the Armed 
Forces.--Persons confined under subsection (a)(2) in a penal or 
correctional institution not under the control of an armed force are 
subject to the same discipline and treatment as persons confined or 
committed by the courts of the United States or of the State, District 
of Columbia, or place in which the institution is situated.

     ``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY 
                              COMMISSIONS

``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District 
                            of Columbia Circuit and the Supreme Court.
``950h. Appellate counsel
``950i. Execution of sentence; suspension of sentence.
``950j. Finality of proceedings, findings, and sentences.
``Sec. 950a. Error of law; lesser included offense
    ``(a) Error of Law.--A finding or sentence of a military commission 
under this chapter may not be held incorrect on the ground of an error 
of law unless the error materially prejudices the substantial rights of 
the accused.
    ``(b) Lesser Included Offense.--Any reviewing authority with the 
power to approve or affirm a finding of guilty by a military commission 
under this chapter may approve or affirm, instead, so much of the 
finding as includes a lesser included offense.
``Sec. 950b. Review by the convening authority
    ``(a) Notice to Convening Authority of Findings and Sentence.--The 
findings and sentence of a military commission under this chapter shall 
be reported in writing promptly to the convening authority after the 
announcement of the sentence.
    ``(b) Submittal of Matters by Accused to Convening Authority.--(1) 
The accused may submit to the convening authority matters for 
consideration by the convening authority with respect to the findings 
and the sentence of the military commission under this chapter.
    ``(2)(A) Except as provided in subparagraph (B), a submittal under 
paragraph (1) shall be made in writing within 20 days after accused has 
been give an authenticated record of trial under section 949o(c) of 
this title.
    ``(B) If the accused shows that additional time is required for the 
accused to make a submittal under paragraph (1), the convening 
authority may, for good cause, extend the applicable period under 
subparagraph (A) for not more than an additional 20 days.
    ``(3) The accused may waive his right to make a submittal to the 
convening authority under paragraph (1). Such a waiver shall be made in 
writing, and may not be revoked. For the purposes of subsection (c)(2), 
the time within which the accused may make a submittal under this 
subsection shall be deemed to have expired upon the submittal of a 
waiver under this paragraph to the convening authority.
    ``(c) Action by Convening Authority.--(1) The authority under this 
subsection to modify the findings and sentence of a military commission 
under this chapter is a matter of the sole discretion and prerogative 
of the convening authority.
    ``(2) The convening authority is not required to take action on the 
findings of a military commission under this chapter. If the convening 
authority takes action on the findings, the convening authority may, in 
his sole discretion, only--
            ``(A) dismiss any charge or specification by setting aside 
        a finding of guilty thereto; or
            ``(B) change a finding of guilty to a charge to a finding 
        of guilty to an offense that is a lesser included offense of 
        the offense stated in the charge.
    ``(3)(A) The convening authority shall take action on the sentence 
of a military commission under this chapter.
    ``(B) Subject to regulations prescribed by the Secretary of 
Defense, action under this paragraph may be taken only after 
consideration of any matters submitted by the accused under subsection 
(b) or after the time for submitting such matters expires, whichever is 
earlier.
    ``(C) In taking action under this paragraph, the convening 
authority may, in his sole discretion, approve, disapprove, commute, or 
suspend the sentence in whole or in part. The convening authority may 
not increase a sentence beyond that which is found by the military 
commission.
    ``(4) The convening authority shall serve on the accused or on 
defense counsel notice of any action taken by the convening authority 
under this subsection.
    ``(d) Order of Revision or Rehearing.--(1) Subject to paragraphs 
(2) and (3), the convening authority of a military commission under 
this chapter may, in his sole discretion, order a proceeding in 
revision or a rehearing.
    ``(2)(A) Except as provided in subparagraph (B), a proceeding in 
revision may be ordered by the convening authority if--
            ``(i) there is an apparent error or omission in the record; 
        or
            ``(ii) the record shows improper or inconsistent action by 
        the military commission with respect to the findings or 
        sentence that can be rectified without material prejudice to 
        the substantial rights of the accused.
    ``(B) In no case may a proceeding in revision--
            ``(i) reconsider a finding of not guilty of a specification 
        or a ruling which amounts to a finding of not guilty;
            ``(ii) reconsider a finding of not guilty of any charge, 
        unless there has been a finding of guilty under a specification 
        laid under that charge, which sufficiently alleges a violation; 
        or
            ``(iii) increase the severity of the sentence unless the 
        sentence prescribed for the offense is mandatory.
    ``(3) A rehearing may be ordered by the convening authority if the 
convening authority disapproves the findings and sentence and states 
the reasons for disapproval of the findings. If the convening authority 
disapproves the finding and sentence and does not order a rehearing, 
the convening authority shall dismiss the charges. A rehearing as to 
the findings may not be ordered by the convening authority when there 
is a lack of sufficient evidence in the record to support the findings. 
A rehearing as to the sentence may be ordered by the convening 
authority if the convening authority disapproves the sentence.
``Sec. 950c. Waiver or withdrawal of appeal
    ``(a) Waiver of Right of Review.--(1) An accused may file with the 
convening authority a statement expressly waiving the right of the 
accused to appellate review by the Court of Military Commission Review 
under section 950f of this title of the final decision of the military 
commission under this chapter.
    ``(2) A waiver under paragraph (1) shall be signed by both the 
accused and a defense counsel.
    ``(3) A waiver under paragraph (1) must be filed, if at all, within 
10 days after notice of the action is served on the accused or on 
defense counsel under section 950b(c)(4) of this title. The convening 
authority, for good cause, may extend the period for such filing by not 
more than 30 days.
    ``(b) Withdrawal of Appeal.--Except in a case in which the sentence 
as approved under section 950b of this title extends to death, the 
accused may withdraw an appeal at any time.
    ``(c) Effect of Waiver or Withdrawal.--A waiver of the right to 
appellate review or the withdrawal of an appeal under this section bars 
review under section 950f of this title.
``Sec. 950d. Appeal by the United States
    ``(a) Interlocutory Appeal.--(1) Except as provided in paragraph 
(2), in a trial by military commission under this chapter, the United 
States may take an interlocutory appeal to the Court of Military 
Commission Review under section 950f of this title of any order or 
ruling of the military judge that--
            ``(A) terminates proceedings of the military commission 
        with respect to a charge or specification;
            ``(B) excludes evidence that is substantial proof of a fact 
        material in the proceeding; or
            ``(C) relates to a matter under subsection (c), (d), or (e) 
        of section 949d of this title.
    ``(2) The United States may not appeal under paragraph (1) an order 
or ruling that is, or amounts to, a finding of not guilty by the 
military commission with respect to a charge or specification.
    ``(b) Notice of Appeal.--The United States shall take an appeal of 
an order or ruling under subsection (a) by filing a notice of appeal 
with the military judge within five days after the date of the order or 
ruling.
    ``(c) Appeal.--An appeal under this section shall be forwarded, by 
means specified in regulations prescribed the Secretary of Defense, 
directly to the Court of Military Commission Review. In ruling on an 
appeal under this section, the Court may act only with respect to 
matters of law.
``Sec. 950e. Rehearings
    ``(a) Composition of Military Commission for Rehearing.--Each 
rehearing under this chapter shall take place before a military 
commission under this chapter composed of members who were not members 
of the military commission which first heard the case.
    ``(b) Scope of Rehearing.--(1) Upon a rehearing--
            ``(A) the accused may not be tried for any offense of which 
        he was found not guilty by the first military commission; and
            ``(B) no sentence in excess of or more than the original 
        sentence may be imposed unless--
                    ``(i) the sentence is based upon a finding of 
                guilty of an offense not considered upon the merits in 
                the original proceedings; or
                    ``(ii) the sentence prescribed for the offense is 
                mandatory.
    ``(2) Upon a rehearing, if the sentence approved after the first 
military commission was in accordance with a pretrial agreement and the 
accused at the rehearing changes his plea with respect to the charges 
or specifications upon which the pretrial agreement was based, or 
otherwise does not comply with pretrial agreement, the sentence as to 
those charges or specifications may include any punishment not in 
excess of that lawfully adjudged at the first military commission.
``Sec. 950f. Review by Court of Military Commission Review
    ``(a) Establishment.--The Secretary of Defense shall establish a 
Court of Military Commission Review which shall be composed of one or 
more panels, and each such panel shall be composed of not less than 
three appellate military judges. For the purpose of reviewing military 
commission decisions under this chapter, the Court may sit in panels or 
as a whole in accordance with rules prescribed by the Secretary.
    ``(b) Appellate Military Judges.--The Secretary shall assign 
appellate military judges to a Court of Military Commission Review. 
Each appellate military judge shall meet the qualifications for 
military judges prescribed by section 948j(b) of this title or shall be 
a civilian with comparable qualifications. No person may serve as an 
appellate military judge in any case in which that person acted as a 
military judge, counsel, or reviewing official.
    ``(c) Right of Appeal.--The accused may appeal from a final 
decision of a military commission, and the United States may appeal as 
provided in section 950d of this title, to the Court of Military 
Commission Review in accordance with procedures prescribed under 
regulations of the Secretary.
    ``(d) Scope of Review.--In a case reviewed by the Court of Military 
Commission Review under this section, the Court may act only with 
respect to matters of law.
``Sec. 950g. Review by the United States Court of Appeals for the 
              District of Columbia Circuit and the Supreme Court
    ``(a) Review by United States Court of Appeals for the District of 
Columbia Circuit.--(1) Subject to the provisions of this subsection, 
the United States Court of Appeals for the District of Columbia Circuit 
shall have exclusive jurisdiction to determine the final validity of 
any judgment rendered by a military commission under this chapter.
    ``(2) The United States Court of Appeals for the District of 
Columbia Circuit may not determine the final validity of a judgment of 
a military commission under this subsection until all other appeals 
from the judgment under this chapter have been waived or exhausted.
    ``(3)(A) An accused may seek a determination by the United States 
Court of Appeals for the District of Columbia Circuit of the final 
validity of the judgment of the military commission under this 
subsection only upon petition to the Court for such determination.
    ``(B) A petition on a judgment under subparagraph (A) shall be 
filed by the accused in the Court not later than 20 days after the date 
on which--
            ``(i) written notice of the final decision of the military 
        commission is served on the accused or defense counsel; or
            ``(ii) the accused submits, in the form prescribed by 
        section 950c of this title, a written notice waiving the right 
        of the accused to review by the Court of Military Commission 
        Review under section 950f of this title.
    ``(C) The accused may not file a petition under subparagraph (A) if 
the accused has waived the right to appellate review under section 
950c(a) of this title.
    ``(4) The determination by the United States Court of Appeals for 
the District of Columbia Circuit of the final validity of a judgment of 
a military commission under this subsection shall be governed by the 
provisions of section 1005(e)(3) of the Detainee Treatment Act of 2005 
(42 U.S.C. 801 note).
    ``(b) Review by Supreme Court.--The Supreme Court of the United 
States may review by writ of certiorari pursuant to section 1257 of 
title 28 the final judgment of the United States Court of Appeals for 
the District of Columbia Circuit in a determination under subsection 
(a).
``Sec. 950h. Appellate counsel
    ``(a) Appointment.--The Secretary of Defense shall, by regulation, 
establish procedures for the appointment of appellate counsel for the 
United States and for the accused in military commissions under this 
chapter. Appellate counsel shall meet the qualifications of counsel for 
appearing before military commissions under this chapter.
    ``(b) Representation of United States.--Appellate counsel may 
represent the United States in any appeal or review proceeding under 
this chapter. Appellate Government counsel may represent the United 
States before the United States Court of Appeals for the District of 
Columbia Circuit and the Supreme Court in cases arising under this 
chapter when requested to do so by the Attorney General.
    ``(c) Representation of Accused.--The accused shall be represented 
before the United States Court of Appeals for the District of Columbia 
Circuit or the Supreme Court by military appellate counsel, or by 
civilian counsel if retained by him.
``Sec. 950i. Execution of sentence; suspension of sentence
    ``(a) Execution of Sentence of Death Only Upon Approval by the 
President.--If the sentence of a military commission under this chapter 
extends to death, that part of the sentence providing for death may not 
be executed until approved by the President. In such a case, the 
President may commute, remit, or suspend the sentence, or any part 
thereof, as he sees fit.
    ``(b) Execution of Sentence of Death Only Upon Final Judgment of 
Legality of Proceedings.--(1) If the sentence of a military commission 
under this chapter extends to death, the sentence may not be executed 
until there is a final judgement as to the legality of the proceedings 
(and with respect to death, approval under subsection (a)).
    ``(2) A judgement as to legality of proceedings is final for 
purposes of paragraph (1) when--
            ``(A) the time for the accused to file a petition for 
        review by the United States Court of Appeals for the District 
        of Columbia Circuit has expired and the accused has not filed a 
        timely petition for such review and the case is not otherwise 
        under review by the Court; or
            ``(B) review is completed in accordance with the judgment 
        of the United States Court of Appeals for the District of 
        Columbia Circuit and (A) a petition for a writ of certiorari is 
        not timely filed, (B) such a petition is denied by the Supreme 
        Court, or (C) review is otherwise completed in accordance with 
        the judgment of the Supreme Court.
    ``(c) Suspension of Sentence.--The Secretary of the Defense, or the 
convening authority acting on the case (if other than the Secretary), 
may suspend the execution of any sentence or part thereof in the case, 
except a sentence of death.
``Sec. 950j. Finality of proceedings, findings, and sentences
    ``(a) Finality.--The appellate review of records of trial provided 
by this chapter, and the proceedings, findings, and sentences of 
military commissions as approved, reviewed, or affirmed as required by 
this chapter, are final and conclusive. Orders publishing the 
proceedings of military commissions under this chapter are binding upon 
all departments, courts, agencies, and officers of the United States, 
except as otherwise provided by the President.
    ``(b) Provisions of Chapter Sole Basis for Review of Military 
Commission Procedures and Actions.--Except as otherwise provided in 
this chapter and notwithstanding any other provision of law (including 
section 2241 of title 28 or any other habeas corpus provision), no 
court, justice, or judge shall have jurisdiction to hear or consider 
any claim or cause of action whatsoever, including any action pending 
on or filed after the date of enactment of this chapter, relating to 
the prosecution, trial, or judgment of a military commission under this 
chapter, including challenges to the lawfulness of procedures of 
military commissions under this chapter.

                   ``SUBCHAPTER VII--PUNITIVE MATTERS

``Sec.
``950aa. Definitions; construction of certain offenses; common 
                            circumstances.
``950bb. Statement of substantive offenses.
``950cc. Principals.
``950dd. Accessory after the fact.
``950ee. Conviction of lesser offenses.
``950ff. Attempts.
``950gg. Solicitation.
``950hh. Murder of protected persons.
``950ii. Attacking civilians.
``950jj. Attacking civilian objects.
``950kk. Attacking protected property.
``950ll. Pillaging.
``950mm. Denying quarter.
``950nn. Taking hostages.
``950oo. Employing poison or similar weapons.
``950pp. Using protected persons as a shield.
``950qq. Using protected property as a shield.
``950rr. Torture.
``950ss. Cruel or inhuman treatment.
``950tt. Intentionally causing serious bodily injury.
``950uu. Mutilating or maiming.
``950vv. Murder in violation of the law of war.
``950ww. Destruction of property in violation of the law of war.
``950xx. Using treachery or perfidy.
``950yy. Improperly using a flag of truce.
``950zz. Improperly using a distinctive emblem.
``950aaa. Intentionally mistreating a dead body.
``950bbb. Rape.
``950ccc. Hijacking or hazarding a vessel or aircraft.
``950ddd. Terrorism.
``950eee. Providing material support for terrorism.
``950fff. Wrongfully aiding the enemy.
``950ggg. Spying.
``950hhh. Conspiracy.
``950iii. Contempt.
``950jjj. Perjury and obstruction of justice.
``Sec. 950aa. Definitions; construction of certain offenses; common 
              circumstances
    ``(a) Definitions.--In this subchapter:
            ``(1) The term `military objective' means combatants and 
        those objects during an armed conflict which, by their nature, 
        location, purpose, or use, effectively contribute to the war-
        fighting or war-sustaining capability of an opposing force and 
        whose total or partial destruction, capture, or neutralization 
        would constitute a definite military advantage to the attacker 
        under the circumstances at the time of an attack.
            ``(2) The term `protected person' means any person entitled 
        to protection under one or more of the Geneva Conventions, 
        including civilians not taking an active part in hostilities, 
        military personnel placed out of combat by sickness, wounds, or 
        detention, and military medical or religious personnel.
            ``(3) The term `protected property' means any property 
        specifically protected by the law of war, including buildings 
        dedicated to religion, education, art, science, or charitable 
        purposes, historic monuments, hospitals, and places where the 
        sick and wounded are collected, but only if and to the extent 
        such property is not being used for military purposes or is not 
        otherwise a military objective. The term includes objects 
        properly identified by one of the distinctive emblems of the 
        Geneva Conventions, but does not include civilian property that 
        is a military objective.
    ``(b) Construction of Certain Offenses.--The intent required for 
offenses under sections 950hh, 950ii, 950jj, 950kk, and 950ss of this 
title precludes their applicability with regard to collateral damage or 
to death, damage, or injury incident to a lawful attack.
    ``(c) Common Circumstances.--An offense specified in this 
subchapter is triable by military commission under this chapter only if 
the offense is committed in the context of and associated with armed 
conflict.
``Sec. 950bb. Statement of substantive offenses
    ``(a) Purpose.--The provisions of this subchapter codify offenses 
that have traditionally been triable by military commissions. This 
chapter does not establish new crimes that did not exist before its 
enactment, but rather codifies those crimes for trial by military 
commission.
    ``(b) Effect.--Because the provisions of this subchapter (including 
provisions that incorporate definitions in other provisions of law) are 
declarative of existing law, they do not preclude trial for crimes that 
occurred before the date of the enactment of this chapter.
``Sec. 950cc. Principals
    ``Any person is punishable as a principle under this chapter who--
            ``(1) commits an offense punishable by this chapter, or 
        aids, abets, counsels, commands, or procures its commission;
            ``(2) causes an act to be done which if directly performed 
        by him would be punishable by this chapter; or
            ``(3) is a superior commander who, with regard to acts 
        punishable under this chapter, knew, had reason to know, or 
        should have known, that a subordinate was about to commit such 
        acts or had done so and the superior failed to take the 
        necessary and reasonable measures to prevent such acts or to 
        punish the perpetrators thereof.
``Sec. 950dd. Accessory after the fact
    ``Any person subject to this chapter who, knowing that an offense 
punishable by this chapter has been committed, receives, comforts, or 
assists the offender in order to hinder or prevent his apprehension, 
trial, or punishment shall be punished as a military commission under 
this chapter may direct.
``Sec. 950ee. Conviction of lesser offenses
    ``An accused may be found guilty of an offense necessarily included 
in the offense charged or of an attempt to commit either the offense 
charged or an attempt to commit either the offense charged or an 
offense necessarily included therein.
``Sec. 950ff. Attempts
    ``(a) In General.--Any person subject to this chapter who attempts 
to commit any offense punishable by this chapter shall be punished as a 
military commission under this chapter may direct.
    ``(b) Scope of Offense.--An act, done with specific intent to 
commit an offense under this chapter, amounting to more than mere 
preparation and tending, even though failing, to effect its commission, 
is an attempt to commit that offense.
    ``(c) Effect of Consummation.--Any person subject to this chapter 
may be convicted of an attempt to commit an offense although it appears 
on the trial that the offense was consummated.
``Sec. 950gg. Solicitation
    ``Any person subject to this chapter who solicits or advises 
another or others to commit one or more substantive offenses triable by 
military commission under this chapter shall, if the offense solicited 
or advised is attempted or committed, be punished with the punishment 
provided for the commission of the offense, but, if the offense 
solicited or advised is not committed or attempted, he shall be 
punished as a military commission under this chapter may direct.
``Sec. 950hh. Murder of protected persons
    ``Any person subject to this chapter who intentionally kills one or 
more protected persons shall be punished by death or such other 
punishment as a military commission under this chapter may direct.
``Sec. 950ii. Attacking civilians
    ``Any person subject to this chapter who intentionally engages in 
an attack upon a civilian population as such, or individual civilians 
not taking active part in hostilities, shall be punished, if death 
results to one or more of the victims, by death or such other 
punishment as a military commission under this chapter may direct, and, 
if death does not result to any of the victims, by such punishment, 
other than death, as a military commission under this chapter may 
direct.
``Sec. 950jj. Attacking civilian objects
    ``Any person subject to this chapter who intentionally engages in 
an attack upon a civilian object that is not a military objective shall 
be punished as a military commission under this chapter may direct.
``Sec. 950kk. Attacking protected property
    ``Any person subject to this chapter who intentionally engages in 
an attack upon protected property shall be punished as a military 
commission under this chapter may direct.
``Sec. 950ll. Pillaging
    ``Any person subject to this chapter who intentionally and in the 
absence of military necessity appropriates or seizes property for 
private or personal use, without the consent of a person with authority 
to permit such appropriation or seizure, shall be punished as a 
military commission under this chapter may direct.
``Sec. 950mm. Denying quarter
    ``Any person subject to this chapter who, with effective command or 
control over subordinate groups, declares, orders, or otherwise 
indicates to those groups that there shall be no survivors or surrender 
accepted, with the intent to threaten an adversary or to conduct 
hostilities such that there would be no survivors or surrender 
accepted, shall be punished as a military commission under this chapter 
may direct.
``Sec. 950nn. Taking hostages
    ``Any person subject to this chapter who, having knowingly seized 
or detained one or more persons, threatens to kill, injure, or continue 
to detain such person or persons with the intent of compelling any 
nation, person other than the hostage, or group of persons to act or 
refrain from acting as an explicit or implicit condition for the safety 
or release of such person or persons, shall be punished, if death 
results to one or more of the victims, by death or such other 
punishment as a military commission under this chapter may direct, and, 
if death does not result to any of the victims, by such punishment, 
other than death, as a military commission under this chapter may 
direct.
``Sec. 950oo. Employing poison or similar weapons
    ``Any person subject to this chapter who intentionally, as a method 
of warfare, employs a substance or weapon that releases a substance 
that causes death or serious and lasting damage to health in the 
ordinary course of events, through its asphyxiating, bacteriological, 
or toxic properties, shall be punished, if death results to one or more 
of the victims, by death or such other punishment as a military 
commission under this chapter may direct, and, if death does not result 
to any of the victims, by such punishment, other than death, as a 
military commission under this chapter may direct.
``Sec. 950pp. Using protected persons as a shield
    ``Any person subject to this chapter who positions, or otherwise 
takes advantage of, a protected person with the intent to shield a 
military objective from attack. or to shield, favor, or impede military 
operations, shall be punished, if death results to one or more of the 
victims, by death or such other punishment as a military commission 
under this chapter may direct, and, if death does not result to any of 
the victims, by such punishment, other than death, as a military 
commission under this chapter may direct.
``Sec. 950qq. Using protected property as a shield
    ``Any person subject to this chapter who positions, or otherwise 
takes advantage of the location of, protected property with the intent 
to shield a military objective from attack, or to shield, favor, or 
impede military operations, shall be punished as a military commission 
under this chapter may direct.
``Sec. 950rr. Torture
    ``(a) Offense.--Any person subject to this chapter who commits an 
act specifically intended to inflict severe physical or mental pain or 
suffering (other than pain or suffering incidental to lawful sanctions) 
upon another person within his custody or physical control for the 
purpose of obtaining information or a confession, punishment, 
intimidation, coercion, or any reason based on discrimination of any 
kind, shall be punished, if death results to one or more of the 
victims, by death or such other punishment as a military commission 
under this chapter may direct, and, if death does not result to any of 
the victims, by such punishment, other than death, as a military 
commission under this chapter may direct.
    ``(b) Severe Mental Pain or Suffering Defined.--In this section, 
the term `severe mental pain or suffering' has the meaning given that 
term in section 2340(2) of title 18.
``Sec. 950ss. Cruel or inhuman treatment
    ``(a) Offense.--Any person subject to this chapter who commits, or 
conspires or attempts to commit, an act intended to inflict severe or 
serious physical or mental pain or suffering (other than pain or 
suffering incidental to lawful sanctions), including serious physical 
abuse, upon another within his custody or control shall be punished, if 
death results to the victim, by death or such other punishment as a 
military commission under this chapter may direct, and, if death does 
not result to the victim, by such punishment, other than death, as a 
military commission under this chapter may direct.
    ``(b) Definitions.--In this section:
            ``(1) The term `severe mental pain or suffering' has the 
        meaning given that term in section 2340(2) of title 18.
            ``(2) The term `serious physical pain or suffering' means 
        bodily injury that involves--
                    ``(A) a substantial risk of death;
                    ``(B) extreme physical pain;
                    ``(C) a burn or physical disfigurement of a serious 
                nature (other than cuts, abrasions, or bruises); or
                    ``(D) significant loss or impairment of the 
                function of a bodily member, organ, or mental faculty.
            ``(3) The term `serious mental pain or suffering' has the 
        meaning given the term `severe mental pain or suffering' in 
        section 2340(2) of title 18, except that--
                    ``(A) the term `serious' shall replace the term 
                `severe' where it appears; and
                    ``(B) as to conduct occurring after the date of the 
                enactment of the Military Commission Act of 2006, the 
                term `serious and non-transitory mental harm (which 
                need not be prolonged)' shall replace the term 
                `prolonged mental harm' where it appears.
``Sec. 950tt. Intentionally causing serious bodily injury
    ``(a) Offense.--Any person subject to this chapter who 
intentionally causes serious bodily injury to one or more persons, 
including lawful combatants, in violation of the law of war shall be 
punished, if death results to one or more of the victims, by death or 
such other punishment as a military commission under this chapter may 
direct, and, if death does not result to any of the victims, by such 
punishment, other than death, as a military commission under this 
chapter may direct.
    ``(b) Serious Bodily Injury Defined.--In this section, the term 
`serious bodily injury' means bodily injury which involves--
            ``(1) a substantial risk of death;
            ``(2) extreme physical pain;
            ``(3) protracted and obvious disfigurement; or
            ``(4) protracted loss or impairment of the function of a 
        bodily member, organ, or mental faculty.
``Sec. 950uu. Mutilating or maiming
    ``Any person subject to this chapter who intentionally injures one 
or more protected persons by disfiguring the person or persons by any 
mutilation of the person or persons, or by permanently disabling any 
member, limb, or organ of the body of the person or persons, without 
any legitimate medical or dental purpose, shall be punished, if death 
results to one or more of the victims, by death or such other 
punishment as a military commission under this chapter may direct, and, 
if death does not result to any of the victims, by such punishment, 
other than death, as a military commission under this chapter may 
direct.
``Sec. 950vv. Murder in violation of the law of war
    ``Any person subject to this chapter who intentionally kills one or 
more persons, including lawful combatants, in violation of the law of 
war shall be punished by death or such other punishment as a military 
commission under this chapter may direct.
``Sec. 950ww. Destruction of property in violation of the law of war
    ``Any person subject to this chapter who intentionally destroys 
property belonging to another person in violation of the law of war 
shall punished as a military commission under this chapter may direct.
``Sec. 950xx. Using treachery or perfidy
    ``Any person subject to this chapter who, after inviting the 
confidence or belief of one or more persons that they were entitled to, 
or obliged to accord, protection under the law of war, intentionally 
makes use of that confidence or belief in killing, injuring, or 
capturing such person or persons shall be punished, if death results to 
one or more of the victims, by death or such other punishment as a 
military commission under this chapter may direct, and, if death does 
not result to any of the victims, by such punishment, other than death, 
as a military commission under this chapter may direct.
``Sec. 950yy. Improperly using a flag of truce
    ``Any person subject to this chapter who uses a flag of truce to 
feign an intention to negotiate, surrender, or otherwise suspend 
hostilities when there is no such intention shall be punished as a 
military commission under this chapter may direct.
``Sec. 950zz. Improperly using a distinctive emblem
    ``Any person subject to this chapter who intentionally uses a 
distinctive emblem recognized by the law of war for combatant purposes 
in a manner prohibited by the law of war shall be punished as a 
military commission under this chapter may direct.
``Sec. 950aaa. Intentionally mistreating a dead body
    ``Any person subject to this chapter who intentionally mistreats 
the body of a dead person, without justification by legitimate military 
necessary, shall be punished as a military commission under this 
chapter may direct.
``Sec. 950bbb. Rape
    ``Any person subject to this chapter who forcibly or with coercion 
or threat of force wrongfully invades the body of a person by 
penetrating, however slightly, the anal or genital opening of the 
victim with any part of the body of the accused, or with any foreign 
object, shall be punished as a military commission under this chapter 
may direct.
``Sec. 950ccc. Hijacking or hazarding a vessel or aircraft
    ``Any person subject to this chapter who intentionally seizes, 
exercises unauthorized control over, or endangers the safe navigation 
of a vessel or aircraft that is not a legitimate military objective 
shall be punished, if death results to one or more of the victims, by 
death or such other punishment as a military commission under this 
chapter may direct, and, if death does not result to any of the 
victims, by such punishment, other than death, as a military commission 
under this chapter may direct.
``Sec. 950ddd. Terrorism
    ``Any person subject to this chapter who intentionally kills or 
inflicts great bodily harm on one or more protected persons, or 
intentionally engages in an act that evinces a wanton disregard for 
human life, in a manner calculated to influence or affect the conduct 
of government or civilian population by intimidation or coercion, or to 
retaliate against government conduct, shall be punished, if death 
results to one or more of the victims, by death or such other 
punishment as a military commission under this chapter may direct, and, 
if death does not result to any of the victims, by such punishment, 
other than death, as a military commission under this chapter may 
direct.
``Sec. 950eee. Providing material support for terrorism
    ``(a) Offense.--Any person subject to this chapter who provides 
material support or resources, knowing or intending that they are to be 
used in preparation for, or in carrying out, an act of terrorism (as 
set forth in section 950ddd of this title), or who intentionally 
provides material support or resources to an international terrorist 
organization engaged in hostilities against the United States, knowing 
that such organization has engaged or engages in terrorism (as so set 
forth), shall be punished as a military commission under this chapter 
may direct.
    ``(b) Material Support or Resources Defined.--In this section, the 
term `material support or resources' has the meaning given that term in 
section 2339A(b) of title 18.
``Sec. 950fff. Wrongfully aiding the enemy
    ``Any person subject to this chapter who, in breach of an 
allegiance or duty to the United States, knowingly and intentionally 
aids an enemy of the United States, or one of the co-belligerents of 
the enemy, shall be punished as a military commission under this 
chapter may direct.
``Sec. 950ggg. Spying
    ``Any person subject to this chapter who, in violation of the law 
of war and with intent or reason to believe that it is to be used to 
the injury of the United States or to the advantage of a foreign power, 
collects or attempts to collect information by clandestine means or 
while acting under false pretenses, for the purpose of conveying such 
information to an enemy of the United States, or one of the co-
belligerents of the enemy, shall be punished by death or such other 
punishment as a military commission under this chapter may direct.
``Sec. 950hhh. Conspiracy
    ``Any person subject to this chapter who conspires to commit one or 
more substantive offenses triable by military commission under this 
subchapter, and who knowingly does any overt act to effect the object 
of the conspiracy, shall be punished, if death results to one or more 
of the victims, by death or such other punishment as a military 
commission under this chapter may direct, and, if death does not result 
to any of the victims, by such punishment, other than death, as a 
military commission under this chapter may direct.
``Sec. 950iii. Contempt
    ``A military commission under this chapter may punish for contempt 
any person who uses any menacing word, sign, or gesture in its 
presence, or who disturbs its proceedings by any riot or disorder.
``Sec. 950jjj. Perjury and obstruction of justice
    ``A military commission under this chapter may try offenses and 
impose such punishment as the military commission may direct for 
perjury, false testimony, or obstruction of justice related to the 
military commission.''.
            (2) Tables of chapters amendments.--The tables of chapters 
        at the beginning of subtitle A and part II of subtitle A of 
        title 10, United States Code, are each amended by inserting 
        after the item relating to chapter 47 the following new item:

``Chapter 47A. Military Commissions.........................   948a.''.
    (b) Submittal of Procedures to Congress.--
            (1) Submittal of procedures.--Not later than 90 days after 
        the date of the enactment of this Act, the Secretary of Defense 
        shall submit to the Committees on Armed Services of the Senate 
        and the House of Representatives a report setting forth the 
        procedures for military commissions prescribed under chapter 
        47A of title 10, United States Code (as added by subsection 
        (a)).
            (2) Submittal of modifications.--Not later than 60 days 
        before the date on which any proposed modification of the 
        procedures described in paragraph (1) shall go into effect, the 
        Secretary shall submit to the committees of Congress referred 
        to in that paragraph a report describing such modification.

SEC. 105. AMENDMENTS TO OTHER LAWS.

    (a) Detainee Treatment Act of 2005.--Section 1004(b) of the 
Detainee Treatment Act of 2005 (title X of Public Law 109-148; 119 
Stat. 2740; 42 U.S.C. 200dd-1(b)) is amended--
            (1) by striking ``may provide'' and inserting ``shall 
        provide'';
            (2) by inserting ``or investigation'' after ``criminal 
        prosecution''; and
            (3) by inserting ``whether before United States courts or 
        agencies, foreign courts or agencies, or international courts 
        or agencies,'' after ``described in that subsection,''.
    (b) Uniform Code of Military Justice.--Chapter 47 of title, 10, 
United States Code (the Uniform Code of Military Justice), is amended 
as follows:
            (1) Section 802 (article 2 of the Uniform Code of Military 
        Justice) is amended by adding at the end the following new 
        paragraph:
            ``(13) Lawful enemy combatants (as that term is defined in 
        section 948a(3) of this title) who violate the law of war.''.
            (2) Section 821 (article 21 of the Uniform Code of Military 
        Justice) is amended by striking ``by statute or law of war''.
            (3) Section 836(a) (article 36(a) of the Uniform Code of 
        Military Justice) is amended by inserting ``(other than 
        military commissions under chapter 47A of this title)'' after 
        ``other military tribunals''.
    (c) Punitive Article of Conspiracy.--Section 881 of title 10, 
United States Code (article 81 of the Uniform Code of Military 
Justice)), is amended--
            (1) by inserting ``(a)'' before ``Any person''; and
            (2) by adding at the end the following new subsection:
    ``(b) Any person subject to this chapter or chapter 47A of this 
title who conspires with any other person to commit an offense under 
the law of war, and who knowingly does an overt act to effect the 
object of the conspiracy, shall be punished, if death results to one or 
more of the victims, by death or such other punishment as a court-
martial or military commission may direct, and, if death does not 
result to any of the victims, by such punishment, other than death, as 
a court-martial or military commission may direct.''.
    (d) Review of Judgments of Military Commissions.--
            (1) Review by supreme court.--Section 1259 of title 28, 
        United States Code, is amended by adding at the end the 
        following new paragraph:
            ``(5) Cases tried by military commission and reviewed by 
        the United States Court of Appeals for the District of Columbia 
        Circuit under section 950g of title 10.''.
            (2) Detainee treatment act of 2005.--Section 1005(e)(3) of 
        the Detainee Treatment Act of 2005 (title X of Public Law 109-
        148; 119 Stat. 2740; 10 U.S.C. 801 note) is amended--
                            (A) in subparagraph (A), by striking 
                        ``pursuant to Military Commission Order No. 1. 
                        dated August 31, 2005 (or any successor 
                        military order)'' and inserting ``by a military 
                        commission under chapter 47A of title 10, 
                        United States Code'';
                            (B) by striking subparagraph (B) and 
                        inserting the following new subparagraph (B):
                    ``(B) Grant of review.--Review under this paragraph 
                shall be as of right.'';
                            (C) in subparagraph (C)--
                                    (i) in clause (i)--
                                            (I) by striking ``pursuant 
                                        to the military order'' and 
                                        inserting ``by a military 
                                        commission''; and
                                            (II) by striking ``at 
                                        Guantanamo Bay, Cuba''; and
                                    (ii) in clause (ii), by striking 
                                ``pursuant to such military order'' and 
                                inserting ``by the military 
                                commission''; and
                            (D) in subparagraph (D)(i), by striking 
                        ``specified in the military order'' and 
                        inserting ``specified for a military 
                        commission''.

SEC. 106. HABEAS CORPUS MATTERS.

    (a) In General.--Section 2241 of title 28, United States Code, is 
amended--
            (1) by striking subsection (e) (as added by section 
        1005(e)(1) of Public Law 109-148 (119 Stat. 2742)) and by 
        striking subsection (e) (as added by added by section 
        1405(e)(1) of Public Law 109-163 (119 Stat. 3477)); and
            (2) by adding at the end the following new subsection:
    ``(e)(1) No court, justice, or judge shall have jurisdiction to 
hear or consider an application for a writ of habeas corpus filed by or 
on behalf of an alien detained by the United States who--
            ``(A) is currently in United States custody; and
            ``(B) has been determined by the United States to have been 
        properly detained as an enemy combatant or is awaiting such 
        determination.
    ``(2) Except as provided in paragraphs (2) and (3) of section 
1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no 
court, justice, or judge shall have jurisdiction to hear or consider 
any other action against the United States or its agents relating to 
any aspect of the detention, transfer, treatment, trial, or conditions 
of confinement of an alien detained by the United States who--
            ``(A) is currently in United States custody; and
            ``(B) has been determined by the United States to have been 
        properly detained as an enemy combatant or is awaiting such 
        determination.''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
take effect on the date of the enactment of this Act, and shall apply 
to all cases, without exception, pending on or after the date of the 
enactment of this Act which relate to any aspect of the detention, 
transfer, treatment, trial, or conditions of detention of an alien 
detained by the United States since September 11, 2001.

SEC. 107. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CERTAIN 
              CLAIMS.

    (a) In General.--No person may invoke the Geneva Conventions, or 
any protocols thereto, in any habeas or civil action or proceeding to 
which the United States, or a current or former officer, employee, 
member of the Armed Forces, or other agent of the United States, is a 
party, as a source of rights in any court of the United States or its 
States or territories.
    (b) Geneva Conventions Defined.--In this section, the term ``Geneva 
Conventions'' means--
            (1) the Convention for the Amelioration of the Condition of 
        the Wounded and Sick in Armed Forces in the Field, done at 
        Geneva August 12, 1949 (6 UST 3217);
            (2) the Convention for the Amelioration of the Condition of 
        the Wounded, Sick, and Shipwrecked Members of the Armed Forces 
        at Sea, done at Geneva August 12, 1949 (6 UST 3217);
            (3) the Convention Relative to the Treatment of Prisoners 
        of War, done at Geneva August 12, 1949 (6 UST 3316); and
            (4) the Convention Relative to the Protection of Civilian 
        Persons in Time of War, done at Geneva August 12, 1949 (6 UST 
        3516).

SEC. 108. IMPLEMENTATION OF TREATY OBLIGATIONS.

    (a) Implementation of Treaty Obligations.--
            (1) In general.--The acts enumerated in subsection (d) of 
        section 2441 of title 18, United States Code, as added by 
        subsection (b) of this section, and in subsection (c) of this 
        section, constitute violations of common Article 3 of the 
        Geneva Conventions prohibited by United States law.
            (2) Prohibition on grave breaches.--The provisions of 
        section 2441 of title 18, United States Code, as amended by 
        this section, fully satisfy the obligation under Article 129 of 
        the Third Geneva Convention for the United States to provide 
        effective penal sanctions for grave breaches which are 
        encompassed in common Article 3 in the context of an armed 
        conflict not of an international character. No foreign or 
        international source of law shall supply a basis for a rule of 
        decision in the courts of the United States in interpreting the 
        prohibitions enumerated in subsection (d) of such section 2441.
            (3) Interpretation by the president.--(A) As provided by 
        the Constitution and by this section, the President has the 
        authority for the United States to interpret the meaning and 
        application of the Geneva Conventions and to promulgate higher 
        standards and administrative regulations for violations of 
        treaty obligations which are not grave breaches of the Geneva 
        Conventions.
            (B) The President shall issue interpretations described by 
        subparagraph (A) by Executive Order published in the Federal 
        Register.
            (C) Any Executive Order published under this paragraph 
        shall be authoritative (as to non-grave breach provisions of 
        common Article 3) as a matter of United States law, in the same 
        manner as other administrative regulations.
            (D) Nothing in this section shall be construed to affect 
        the constitutional functions and responsibilities of Congress 
        and the judicial branch of the United States.
            (4) Definitions.--In this subsection:
                    (A) The term ``Geneva Conventions'' means--
                            (i) the Convention for the Amelioration of 
                        the Condition of the Wounded and Sick in Armed 
                        Forces in the Field, done at Geneva August 12, 
                        1949 (6 UST 3217);
                            (ii) the Convention for the Amelioration of 
                        the Condition of the Wounded, Sick, and 
                        Shipwrecked Members of the Armed Forces at Sea, 
                        done at Geneva August 12, 1949 (6 UST 3217);
                            (iii) the Convention Relative to the 
                        Treatment of Prisoners of War, done at Geneva 
                        August 12, 1949 (6 UST 3316); and
                            (iv) the Convention Relative to the 
                        Protection of Civilian Persons in Time of War, 
                        done at Geneva August 12, 1949 (6 UST 3516).
                    (B) The term ``Third Geneva Convention'' means the 
                international convention referred to in subparagraph 
                (A)(iii).
    (b) Revision to War Crimes Offense Under Federal Criminal Code.--
            (1) In general.--Section 2441 of title 18, United States 
        Code, is amended--
                    (A) in subsection (c), by striking paragraph (3) 
                and inserting the following new paragraph (3):
            ``(3) which constitutes a grave breach of common Article 3 
        as defined in subsection (d) when committed in the context of 
        and in association with an armed conflict not of an 
        international character; or''; and
                    (B) by adding at the end the following new 
                subsection:
    ``(d) Common Article 3 Violations.--
            ``(1) Prohibited conduct.--In subsection (c)(3), the term 
        `grave breach of common Article 3' means any conduct (such 
        conduct constituting a grave breach of common Article 3 of the 
        international conventions done at Geneva August 12, 1949), as 
        follows:
                    ``(A) Torture.--The act of a person who commits, or 
                conspires or attempts to commit, an act specifically 
                intended to inflict severe physical or mental pain or 
                suffering (other than pain or suffering incidental to 
                lawful sanctions) upon another person within his 
                custody or physical control for the purpose of 
                obtaining information or a confession, punishment, 
                intimidation, coercion, or any reason based on 
                discrimination of any kind.
                    ``(B) Cruel or inhuman treatment.--The act of a 
                person who commits, or conspires or attempts to commit, 
                an act intended to inflict severe or serious physical 
                or mental pain or suffering (other than pain or 
                suffering incidental to lawful sanctions), including 
                serious physical abuse, upon another within his custody 
                or control.
                    ``(C) Performing biological experiments.--The act 
                of a person who subjects, or conspires or attempts to 
                subject, one or more persons within his custody or 
                physical control to biological experiments without a 
                legitimate medical or dental purpose and in so doing 
                endangers the body or health of such person or persons.
                    ``(D) Murder.--The act of a person who 
                intentionally kills, or conspires or attempts to kill, 
                or kills whether intentionally or unintentionally in 
                the course of committing any other offense under this 
                subsection, one or more persons taking no active part 
                in the hostilities, including those placed out of 
                combat by sickness, wounds, detention, or any other 
                cause.
                    ``(E) Mutilation or maiming.--The act of a person 
                who intentionally injures, or conspires or attempts to 
                injure, or injures whether intentionally or 
                unintentionally in the course of committing any other 
                offense under this subsection, one or more persons 
                taking no active part in the hostilities, including 
                those placed out of combat by sickness, wounds, 
                detention, or any other cause, by disfiguring the 
                person or persons by any mutilation thereof or by 
                permanently disabling any member, limb, or organ of his 
                body, without any legitimate medical or dental purpose.
                    ``(F) Intentionally causing serious bodily 
                injury.--The act of a person who intentionally causes, 
                or conspires or attempts to cause, serious bodily 
                injury to one or more persons, including lawful 
                combatants, in violation of the law of war.
                    ``(G) Rape.--The act of a person who forcibly or 
                with coercion or threat of force wrongfully invades, or 
                conspires or attempts to invade, the body of a person 
                by penetrating, however slightly, the anal or genital 
                opening of the victim with any part of the body of the 
                accused, or with any foreign object.
                    ``(H) Sexual assault or abuse.--The act of a person 
                who forcibly or with coercion or threat of force 
                engages, or conspires or attempts to engage, in sexual 
                contact with one or more persons, or causes, or 
                conspires or attempts to cause, one or more persons to 
                engage in sexual contact.
                    ``(I) Taking hostages.--The act of a person who, 
                having knowingly seized or detained one or more 
                persons, threatens to kill, injure, or continue to 
                detain such person or persons with the intent of 
                compelling any nation, person other than the hostage, 
                or group of persons to act or refrain from acting as an 
                explicit or implicit condition for the safety or 
                release of such person or persons.
            ``(2) Definitions.--In the case of an offense under 
        subsection (a) by reason of subsection (c)(3)--
                    ``(A) the term `severe mental pain or suffering' 
                shall be applied for purposes of paragraphs (1)(A) and 
                (1)(B) in accordance with the meaning given that term 
                in section 2340(2) of this title;
                    ``(B) the term `serious bodily injury' shall be 
                applied for purposes of paragraph (1)(F) in accordance 
                with the meaning given that term in section 113(b)(2) 
                of this title;
                    ``(C) the term `sexual contact' shall be applied 
                for purposes of paragraph (1)(G) in accordance with the 
                meaning given that term in section 2246(3) of this 
                title;
                    ``(D) the term `serious physical pain or suffering' 
                shall be applied for purposes of paragraph (1)(B) as 
                meaning bodily injury that involves--
                            ``(i) a substantial risk of death;
                            ``(ii) extreme physical pain;
                            ``(iii) a burn or physical disfigurement of 
                        a serious nature (other than cuts, abrasions, 
                        or bruises); or
                            ``(iv) significant loss or impairment of 
                        the function of a bodily member, organ, or 
                        mental faculty; and
                    ``(E) the term `serious mental pain or suffering' 
                shall be applied for purposes of paragraph (1)(B) in 
                accordance with the meaning given the term `severe 
                mental pain or suffering' (as defined in section 
                2340(2) of this title), except that--
                            ``(i) the term `serious' shall replace the 
                        term `severe' where it appears; and
                            ``(ii) as to conduct occurring after the 
                        date of the enactment of the Military 
                        Commission Act of 2006, the term `serious and 
                        non-transitory mental harm (which need not be 
                        prolonged)' shall replace the term `prolonged 
                        mental harm' where it appears.
            ``(3) Inapplicability of certain provisions with respect to 
        collateral damage or incident of lawful attack.--The intent 
        specified for the conduct stated in subparagraphs (D), (E), and 
        (F) or paragraph (1) precludes the applicability of those 
        subparagraphs to an offense under subsection (a) by reasons of 
        subsection (c)(3) with respect to--
                    ``(A) collateral damage; or
                    ``(B) death, damage, or injury incident to a lawful 
                attack.
            ``(4) Inapplicability of taking hostages to prisoner 
        exchange.--Paragraph (1)(I) does not apply to an offense under 
        subsection (a) by reason of subsection (c)(3) in the case of a 
        prisoner exchange during wartime.''.
            (2) Retroactive applicability.--The amendments made by this 
        subsection, except as specified in subsection (d)(2)(E) of 
        section 2441 of title 18, United States Code, shall take effect 
        as of November 26, 1997, as if enacted immediately after the 
        amendments made by section 583 of Public Law 105-118 (as 
        amended by section 4002(e)(7) of Public Law 107-273).
    (c) Additional Prohibition on Cruel, Inhuman, or Degrading 
Treatment or Punishment.--
            (1) In general.--No individual in the custody or under the 
        physical control of the United States Government, regardless of 
        nationality or physical location, shall be subject to cruel, 
        inhuman, or degrading treatment or punishment.
            (2) Cruel, inhuman, or degrading treatment or punishment 
        defined.--In this subsection, the term ``cruel, inhuman, or 
        degrading treatment or punishment'' means cruel, unusual, and 
        inhumane treatment or punishment prohibited by the Fifth, 
        Eighth, and Fourteenth Amendments to the Constitution of the 
        United States, as defined in the United States Reservations, 
        Declarations and Understandings to the United Nations 
        Convention Against Torture and Other Forms of Cruel, Inhuman or 
        Degrading Treatment or Punishment done at New York, December 
        10, 1984.
            (3) Compliance.--The President shall take appropriate 
        action to ensure compliance with this subsection, including 
        through the establishment of administrative rules and 
        procedures.

SEC. 109. DETENTION COVERED BY REVIEW OF DECISIONS OF COMBATANT STATUS 
              REVIEW TRIBUNALS OF PROPRIETY OF DETENTION.

    Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 2005 
(title X of Public Law 109-148; 119 Stat. 2742; 10 U.S.C. 801 note) is 
amended by striking ``the Department of Defense at Guantanamo Bay, 
Cuba'' and inserting ``the United States''.

SEC. 110. SEVERABILITY.

    If any provision of this Act or amendment made by a provision of 
this Act, or the application of such provision or amendment to any 
person or circumstance, is held to be unconstitutional, the remainder 
of this Act and the amendments made by this Act, and the application of 
such provisions and amendments to any other person or circumstance, 
shall not be affected thereby.

                  TITLE II--TERRORIST SURVEILLANCE ACT

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Terrorist Surveillance Act of 
2006''.

SEC. 202. FINDINGS.

    Congress finds the following:
            (1) After the terrorist attacks of September 11, 2001, 
        President Bush authorized the National Security Agency to 
        intercept communications between people inside the United 
        States, including American citizens, and terrorism suspects 
        overseas.
            (2) One of the lessons learned from September 11, 2001, is 
        that the enemies who seek to greatly harm and terrorize our 
        Nation utilize technologies and techniques that defy 
        conventional law enforcement practices.
            (3) The President, as the constitutional officer most 
        directly responsible for protecting the United States from 
        attack, requires the ability and means to detect and track an 
        enemy that can master and exploit modern technology.
            (4) It is equally essential, however, that in protecting 
        the United States against our enemies, the President does not 
        compromise the very civil liberties that he seeks to safeguard. 
        As Justice Hugo Black observed, ``The President's power, if 
        any, to issue [an] order must stem either from an Act of 
        Congress or from the Constitution itself.'' Youngstown Sheet & 
        Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion by Black, 
        J.). Similarly, in 2004, Justice Sandra Day O'Connor explained 
        in her plurality opinion for the Supreme Court in Hamdi v. 
        Rumsfeld: ``We have long since made clear that a state of war 
        is not a blank check for the President when it comes to the 
        rights of the Nation's citizens.'' Hamdi v. Rumsfeld, 542 U.S. 
        507, 536 (2004) (citations omitted).
            (5) When deciding issues of national security, it is in our 
        Nation's best interest that, to the extent feasible, all 3 
        branches of the Federal Government should be involved. This 
        helps guarantee that electronic surveillance programs do not 
        infringe on the constitutional rights of Americans, while at 
        the same time ensuring that the President has all the powers 
        and means necessary to detect and track our enemies and protect 
        our Nation from attack.
            (6) As Justice Sandra Day O'Connor explained in her 
        plurality opinion for the Supreme Court in Hamdi v. Rumsfeld, 
        ``Whatever power the United States Constitution envisions for 
        the Executive in its exchanges with other nations or with enemy 
        organizations in times of conflict, it most assuredly envisions 
        a role for all 3 branches when individual liberties are at 
        stake.'' Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations 
        omitted).
            (7) Similarly, Justice Jackson famously explained in his 
        Youngstown concurrence: ``When the President acts pursuant to 
        an express or implied authorization of Congress, his authority 
        is at its maximum, for it includes all that he possesses in his 
        own right plus all that Congress can delegate ... When the 
        President acts in absence of either a congressional grant or 
        denial of authority, he can only rely upon his own independent 
        powers, but there is a zone of twilight in which he and 
        Congress may have concurrent authority, or in which its 
        distribution is uncertain. Therefore, congressional inertia, 
        indifference or quiescence may sometimes, at least as a 
        practical matter, enable, if not invite, measures on 
        independent presidential responsibility ... When the President 
        takes measures incompatible with the expressed or implied will 
        of Congress, his power is at its lowest ebb, for then he can 
        rely only upon his own constitutional powers minus any 
        constitutional powers of Congress over the matter. Courts can 
        sustain exclusive Presidential control in such a case only by 
        disabling the Congress from acting upon the subject.'' 
        Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 
        (1952) (Jackson, J., concurring).
            (8) Congress clearly has the authority to enact legislation 
        with respect to electronic surveillance programs. The 
        Constitution provides Congress with broad powers of oversight 
        over national security and foreign policy, under article I, 
        section 8 of the Constitution of the United States, which 
        confers on Congress numerous powers, including the powers--
                    (A) ``To declare War, grant Letters of Marque and 
                Reprisal, and make Rules concerning Captures on Land 
                and Water'';
                    (B) ``To raise and support Armies'';
                    (C) ``To provide and maintain a Navy'';
                    (D) ``To make Rules for the Government and 
                Regulation of the land and naval Forces'';
                    (E) ``To provide for calling forth the Militia to 
                execute the Laws of the Union, suppress Insurrections 
                and repel Invasions''; and
                    (F) ``To provide for organizing, arming, and 
                disciplining the Militia, and for governing such Part 
                of them as may be employed in the Service of the United 
                States''.
            (9) While Attorney General Alberto Gonzales explained that 
        the executive branch reviews the electronic surveillance 
        program of the National Security Agency every 45 days to ensure 
        that the program is not overly broad, it is the belief of 
        Congress that approval and supervision of electronic 
        surveillance programs should be conducted outside of the 
        executive branch, by the article III court established under 
        section 103 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1803) and the congressional intelligence 
        committees. It is also the belief of Congress that it is 
        appropriate for an article III court to pass upon the 
        constitutionality of electronic surveillance programs that may 
        be directed at Americans.
            (10) The Foreign Intelligence Surveillance Court is the 
        proper court to approve and supervise classified electronic 
        surveillance programs because it is adept at maintaining the 
        secrecy with which it was charged and it possesses the 
        requisite expertise and discretion for adjudicating sensitive 
        issues of national security.
            (11) In 1975, [then] Attorney General Edward Levi, a strong 
        defender of executive authority, testified that in times of 
        conflict, the President needs the power to conduct long-range 
        electronic surveillance and that a foreign intelligence 
        surveillance court should be empowered to issue special 
        approval orders in these circumstances.
            (12) Granting the Foreign Intelligence Surveillance Court 
        the authority to review electronic surveillance programs and 
        pass upon their constitutionality is consistent with well-
        established, longstanding practices.
            (13) The Foreign Intelligence Surveillance Court already 
        has broad authority to approve surveillance of members of 
        international conspiracies, in addition to granting warrants 
        for surveillance of a particular individual under sections 104, 
        105, and 402 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1804, 1805, and 1842).
            (14) Prosecutors have significant flexibility in 
        investigating domestic conspiracy cases. Courts have held that 
        flexible warrants comply with the 4th amendment to the 
        Constitution of the United States when they relate to complex, 
        far-reaching, and multifaceted criminal enterprises like drug 
        conspiracies and money laundering rings. The courts recognize 
        that applications for search warrants must be judged in a 
        common sense and realistic fashion, and the courts permit broad 
        warrant language where, due to the nature and circumstances of 
        the investigation and the criminal organization, more precise 
        descriptions are not feasible.
            (15) The Supreme Court, in the ``Keith Case'', United 
        States v. United States District Court for the Eastern District 
        of Michigan, 407 U.S. 297 (1972), recognized that the standards 
        and procedures used to fight ordinary crime may not be 
        applicable to cases involving national security. The Court 
        recognized that national ``security surveillance may involve 
        different policy and practical considerations from the 
        surveillance of ordinary crime'' and that courts should be more 
        flexible in issuing warrants in national security cases. United 
        States v. United States District Court for the Eastern District 
        of Michigan, 407 U.S. 297, 322 (1972).
            (16) By authorizing the Foreign Intelligence Surveillance 
        Court to review electronic surveillance programs, Congress 
        enables the President to use the necessary means to guard our 
        national security, while also protecting the civil liberties 
        and constitutional rights that we cherish.

SEC. 203. DEFINITIONS.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is amended--
            (1) by redesignating title VII as title VIII;
            (2) by redesignating section 701 as section 801; and
            (3) by inserting after title VI the following:

             ``TITLE VII--ELECTRONIC SURVEILLANCE PROGRAMS

``SEC. 701. DEFINITIONS.

    ``As used in this title--
            ``(1) the terms `agent of a foreign power', `Attorney 
        General', `contents', `electronic surveillance', `foreign 
        power', `international terrorism', `minimization procedures', 
        `person', `United States', and `United States person' have the 
        same meaning as in section 101;
            ``(2) the term `congressional intelligence committees' 
        means the Select Committee on Intelligence of the Senate and 
        the Permanent Select Committee on Intelligence of the House of 
        Representatives;
            ``(3) the term `electronic surveillance program' means a 
        program to engage in electronic surveillance--
                    ``(A) that has as a significant purpose the 
                gathering of foreign intelligence information or 
                protecting against international terrorism;
                    ``(B) where it is not feasible to name every 
                person, address, or location to be subjected to 
                electronic surveillance;
                    ``(C) where effective gathering of foreign 
                intelligence information requires the flexibility to 
                begin electronic surveillance immediately after 
                learning of suspect activity; and
                    ``(D) where effective gathering of foreign 
                intelligence information requires an extended period of 
                electronic surveillance;
            ``(4) the term `foreign intelligence information' has the 
        same meaning as in section 101(e) and includes information 
        necessary to protect against international terrorism;
            ``(5) the term `Foreign Intelligence Surveillance Court' 
        means the court established under section 103(a); and
            ``(6) the term `Foreign Intelligence Surveillance Court of 
        Review' means the court established under section 103(b).''.

SEC. 204. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO 
              REVIEW ELECTRONIC SURVEILLANCE PROGRAMS.

    (a) In General.--Title VII of the Foreign Intelligence Surveillance 
Act of 1978, as amended by section 3, is amended by adding at the end 
the following:

``SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO 
              REVIEW ELECTRONIC SURVEILLANCE PROGRAMS.

    ``(a) Authorization of Review.--
            ``(1) Initial authorization.--The Foreign Intelligence 
        Surveillance Court shall have jurisdiction to issue an order 
        under this title, lasting not longer than 90 days, that 
        authorizes an electronic surveillance program to obtain foreign 
        intelligence information or to protect against international 
        terrorism.
            ``(2) Reauthorization.--The Foreign Intelligence 
        Surveillance Court shall have jurisdiction to reauthorize an 
        electronic surveillance program for a period of time not longer 
        than such court determines to be reasonable. There shall be no 
        limit on the number of times the Attorney General may seek 
        reauthorization of an electronic surveillance program.
            ``(3) Resubmission or appeal.--In the event that the 
        Foreign Intelligence Surveillance Court refuses to approve an 
        application under this subsection, the court shall state its 
        reasons in a written opinion, which it shall submit to the 
        Attorney General. The Attorney General or his designee may 
        submit a new application under section 703 for the electronic 
        surveillance program, with no limit on the number of 
        resubmissions that may be made. Alternatively, the Attorney 
        General may appeal the decision of the Foreign Intelligence 
        Surveillance Court to the Foreign Intelligence Surveillance 
        Court of Review.
            ``(4) Continued surveillance under title i.--
                    ``(A) In general.--If, at any time, the Attorney 
                General determines that the known facts and 
                circumstances relating to any target within the United 
                States under this title satisfy the criteria for an 
                application under section 104 for an order for 
                electronic surveillance of the target under section 
                105, the Attorney General shall--
                            ``(i) discontinue the surveillance of the 
                        target under this title; or
                            ``(ii) continue the surveillance of the 
                        target under this title, subject to the 
                        requirements of subparagraph (B).
                    ``(B) Continuation of surveillance.--
                            ``(i) In general.--The Attorney General may 
                        continue surveillance of a target under this 
                        title as specified in subparagraph (A)(ii) only 
                        if the Attorney General makes an application 
                        under section 104 for an order for electronic 
                        surveillance of the target under section 105 as 
                        soon as the Attorney General determines 
                        practicable after the date on which the 
                        Attorney General makes the determination to 
                        continue surveillance of the target under 
                        subparagraph (A)(ii).
                            ``(ii) Period.--The period during which the 
                        Attorney General may continue surveillance of a 
                        target under this title after the Attorney 
                        General has determined that making an 
                        application is practicable shall be limited to 
                        a reasonable period, as determined by the 
                        Attorney General, during which the application 
                        is prepared and the period during which the 
                        application of the Attorney General under 
                        section 104 for an order for electronic 
                        surveillance of the target under section 105 is 
                        pending under title I, including during any 
                        period in which appeal from the denial of the 
                        application is pending with the Foreign 
                        Intelligence Surveillance Court of Review or 
                        the Supreme Court under section 103(b).
    ``(b) Mandatory Transfer for Review.--
            ``(1) In general.--In any case before any court challenging 
        the legality of classified communications intelligence activity 
        relating to a foreign threat, including an electronic 
        surveillance program, or in which the legality of any such 
        activity or program is in issue, if the Attorney General files 
        an affidavit under oath that the case should be transferred to 
        the Foreign Intelligence Surveillance Court of Review because 
        further proceedings in the originating court would harm the 
        national security of the United States, the originating court 
        shall transfer the case of the Foreign Intelligence 
        Surveillance for further proceedings under this subsection.
            ``(2) Procedures for review.--The Foreign Intelligence 
        Surveillance Court shall have jurisdiction as appropriate to 
        determine standing and the legality of the program to the 
        extent necessary for resolution of the underlying case. All 
        proceedings under this paragraph shall be conducted in 
        accordance with the procedures set forth in section 106(f). In 
        the event the Foreign Intelligence Surveillance Court 
        determines that, in the context of a criminal proceeding, the 
        Constitution of the United States would require the disclosure 
        of national security information, any such constitutionally 
        required disclosure shall be governed by the Classified 
        Information Procedures Act, (18 U.S.C. App.), or if applicable, 
        section 2339B(f) of title 18, United States Code.
            ``(3) Appeal, certiorari, and effects of decisions.--The 
        decision of the Foreign Intelligence Surveillance Court made 
        under paragraphs (1) and (2), including a decision that the 
        disclosure of national security information is constitutionally 
        required, shall be subject to review by the Foreign 
        Intelligence Surveillance Court of Review under section 103(b). 
        The Supreme Court of the United States shall have jurisdiction 
        to review decisions of the Foreign Intelligence Surveillance 
        Court of Review by writ of certiorari granted upon the petition 
        of the United States. The decision by the Foreign Intelligence 
        Surveillance Court shall otherwise be binding in all other 
        courts.
            ``(4) Dismissal.--The Foreign Intelligence Surveillance 
        Court or a court that is an originating court under paragraph 
        (1) may dismiss a challenge to the legality of an electronic 
        surveillance program for any reason provided for under law.
            ``(5) Preservation of litigation privileges.--Nothing in 
        this Act shall be construed to abrogate, limit, or affect any 
        litigation privileges in any court.''.

SEC. 205. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE 
              PROGRAMS.

    Title VII of the Foreign Intelligence Surveillance Act of 1978, as 
amended by section 4, is amended by adding at the end the following:

``SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE 
              PROGRAMS.

    ``(a) In General.--Each application for approval of an electronic 
surveillance program under this title (including resubmission or 
application for reauthorization) shall--
            ``(1) be made by the Attorney General or his designee;
            ``(2) include a statement of the authority conferred on the 
        Attorney General by the President of the United States;
            ``(3) include a statement setting forth the legal basis for 
        the conclusion by the Attorney General that the electronic 
        surveillance program is consistent with the Constitution of the 
        United States;
            ``(4) certify that a significant purpose of the electronic 
        surveillance program is to obtain foreign intelligence 
        information or to protect against international terrorism;
            ``(5) certify that the information sought cannot reasonably 
        be obtained by normal investigative techniques
            ``(6) certify that the information sought cannot reasonably 
        be obtained through an application under section 104;
            ``(7) include a statement of the means and operational 
        procedures by which the electronic surveillance will be 
        executed and effected;
            ``(8) include an explanation of how the electronic 
        surveillance program is reasonably designed to ensure that the 
        communications that are acquired are communications of or 
        with--
                    ``(A) a foreign power that engages in international 
                terrorism or activities in preparation therefor;
                    ``(B) an agent of a foreign power that engages in 
                international terrorism or activities in preparation 
                therefor;
                    ``(C) a person reasonably believed to have 
                communication with or be associated with a foreign 
                power that engages in international terrorism or 
                activities in preparation therefor or an agent of a 
                foreign power that engages in international terrorism 
                or activities in preparation therefor; or
                    ``(D) a foreign power that poses an imminent threat 
                of attack likely to cause death, serious injury, or 
                substantial economic damage to the United States, or an 
                agent of a foreign power thereof;
            ``(9) include a statement of the proposed minimization 
        procedures;
            ``(9) include a statement of the proposed minimization 
        procedures;
            ``(10) if the electronic surveillance program that is the 
        subject of the application was initiated prior to the date the 
        application was submitted, specify the date that the program 
        was initiated;
            ``(11) include a description of all previous applications 
        that have been made under this title involving the electronic 
        surveillance program in the application (including the 
        minimization procedures and the means and operational 
        procedures proposed) and the decision on each previous 
        application; and
            ``(12) include a statement of facts concerning the 
        implementation of the electronic surveillance program described 
        in the application, including, for any period of operation of 
        the program authorized not less than 90 days prior to the date 
        of submission of the application--
                    ``(A) the minimization procedures implemented; and
                    ``(B) the means and operational procedures by which 
                the electronic surveillance was executed and effected.
    ``(b) Additional Information.--The Foreign Intelligence 
Surveillance Court may require the Attorney General to furnish such 
other information as may be necessary to make a determination under 
section 704.''.

SEC. 206. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

    Title VII of the Foreign Intelligence Surveillance Act 18 of 1978, 
as amended by section 5, is amended by adding at the end the following:

``SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

    ``(a) Necessary Findings.--Upon receipt of an application under 
section 703, the Foreign Intelligence Surveillance Court shall enter an 
ex parte order as requested, or as modified, approving the electronic 
surveillance program if it finds that--
            ``(1) the President has authorized the Attorney General to 
        make the application for electronic surveillance for foreign 
        intelligence information or to protect against international 
        terrorism;
            ``(2) approval of the electronic surveillance program in 
        the application is consistent with the Constitution of the 
        United States;
            ``(3) the electronic surveillance program is reasonably 
        designed to ensure that the communications that are acquired 
        are communications of or with--
                    ``(A) a foreign power that engages in international 
                terrorism or activities in preparation therefor;
                    ``(B) an agent of a foreign power that is engaged 
                in international terrorism or activities in preparation 
                therefor;
                    ``(C) a person reasonably believed to have 
                communication with or be associated with a foreign 
                power that is engaged in international terrorism or 
                activities in preparation therefor or an agent of a 
                foreign power that is engaged in international 
                terrorism or activities in preparation therefor; or
                    ``(D) a foreign power that poses an imminent threat 
                of attack likely to cause death, serious injury, or 
                substantial economic damage to the United States, or an 
                agent of a foreign power thereof;
            ``(4) the proposed minimization procedures meet the 
        definition of minimization procedures under section 101(h); and
            ``(5) the application contains all statements and 
        certifications required by section 703.
    ``(b) Considerations.--In considering the constitutionality of the 
electronic surveillance program under subsection (a), the Foreign 
Intelligence Surveillance Court may consider--
            ``(1) whether the electronic surveillance program has been 
        implemented in accordance with the proposal by the Attorney 
        General, by comparing--
                    ``(A) the minimization procedures proposed with the 
                minimization procedures actually implemented;
                    ``(B) the nature of the information sought with the 
                nature of the information actually obtained; and
                    ``(C) the means and operational procedures proposed 
                with the means and operational procedures actually 
                implemented; and
            ``(2) whether foreign intelligence information has been 
        obtained through the electronic surveillance program.
    ``(c) Contents of Order.--An order approving an electronic 
surveillance program under this section shall direct--
            ``(1) that the minimization procedures be followed;
            ``(2) that, upon the request of the applicant, specified 
        communication or other common carriers, landlords, custodians, 
        or other specified persons, furnish the applicant forthwith 
        with all information, facilities, or technical assistance 
        necessary to undertake the electronic surveillance program in 
        such a manner as will protect its secrecy and produce a minimum 
        of interference with the services that such carriers, 
        landlords, custodians, or other persons are providing potential 
        targets of the electronic surveillance program;
            ``(3) that any records concerning the electronic 
        surveillance program or the aid furnished or retained by such 
        carriers, landlords, custodians, or other persons are 
        maintained under security procedures approved by the Attorney 
        General and the Director of National Intelligence; and
            ``(4) that the applicant compensate, at the prevailing 
        rate, such carriers, landlords, custodians, or other persons 
        for furnishing such aid.''.

SEC. 207. CONGRESSIONAL OVERSIGHT.

    Title VII of the Foreign Intelligence Surveillance Act of 1978, as 
amended by section 6, is amended by adding at the end the following:

``SEC. 705. CONGRESSIONAL OVERSIGHT.

    ``(a) In General.--Not less often than every 180 days, the Attorney 
General shall submit to the congressional intelligence committees a 
report in classified form on the activities during the previous 180-day 
period under any electronic surveillance program authorized under this 
title.
    ``(b) Contents.--Each report submitted under subsection (a) shall 
provide, with respect to the previous 180-day period, a description 
of--
            ``(1) the minimization procedures implemented;
            ``(2) the means and operational procedures by which the 
        electronic surveillance program was executed and effected;
            ``(3) significant decisions of the Foreign Intelligence 
        Surveillance Court on applications made under section 703;
            ``(4) the total number of applications made for orders 
        approving electronic surveillance programs pursuant to this 
        title; and
            ``(5) the total number of orders applied for that have been 
        granted, modified, or denied.
    ``(c) Rule of Construction.--Nothing in this title shall be 
construed to limit the authority or responsibility of any committee of 
either House of Congress to obtain such information as such committee 
may need to carry out its respective functions and duties.''.

SEC. 208. CLARIFICATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 
              1978.

    (a) Repeal.--Sections 111, 309, and 404 of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1811, 1829, and 1844) are repealed.
    (b) Clarifying Amendments.--
            (1) Title 18.--Section 2511(2) of title 18, United States 
        Code, is amended--
                    (A) in paragraph (e), by striking ``, as defined in 
                section 101'' and all that follows through the end of 
                the paragraph and inserting the following: ``under the 
                Constitution or the Foreign Intelligence Surveillance 
                Act of 1978.''; and
                    (B) in paragraph (f), by striking ``from 
                international or foreign communications,'' and all that 
                follows through the end of the paragraph and inserting 
                ``that is authorized under a Federal statute or the 
                Constitution of the United States.''.
            (2) FISA.--Section 109 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
                    (A) in subsection (a)--
                            (i) in paragraph (1)--
                                    (I) by striking ``authorized by 
                                statute'' and inserting ``authorized by 
                                law''; and
                                    (II) by striking ``or'' at the end;
                            (ii) in paragraph (2)--
                                    (I) by striking ``authorized by 
                                statute'' and inserting ``authorized by 
                                law''; and
                                    (II) by striking the period and 
                                inserting ``; or''; and
                            (iii) by adding at the end the following:
            ``(3) and knowingly discloses or uses information obtained 
        under color of law by electronic surveillance in a manner or 
        for a purpose not authorized by law.''; and
                    (B) in subsection (c)--
                            (i) by striking ``$10,000'' and inserting 
                        ``$100,000''; and
                            (ii) by striking ``five years'' and 
                        inserting ``15 years''.

SEC. 209. MODERNIZING AMENDMENTS TO FISA.

    (a) Reference.--In this section, a reference to ``FISA'' shall mean 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.).
    (b) Definitions.--Section 101 of FISA (50 U.S.C. 1801) is amended--
            (1) in subsection (b)(1)--
                    (A) in subparagraph (C), by striking ``or'' after 
                the semicolon; and
                    (B) by adding at the end the following:
                    ``(D) otherwise is reasonably expected to possess, 
                control, transmit, or receive foreign intelligence 
                information while that person is in the United States, 
                provided that the official making the certification 
                required by section 104(a)(6) deems such foreign 
                intelligence information to be significant; or'';
            (2) by striking subsection (f) and inserting the following:
    ``(f) `Electronic surveillance' means--
            ``(1) the installation or use of an electronic, mechanical, 
        or other surveillance device for acquiring information by 
        intentionally directing the surveillance at a particular known 
        person who is reasonably believed to be in the United States 
        under circumstances in which that person has a reasonable 
        expectation of privacy and a warrant would be required for law 
        enforcement purposes; or
            ``(2) the intentional acquisition of the contents of any 
        communication under circumstances in which a person has a 
        reasonable expectation of privacy and a warrant would be 
        required for law enforcement purposes, and if both the sender 
        and all intended recipients are reasonably believed to be 
        located within the United States.'';
            (3) in subsection (h), by striking paragraph (4) and 
        inserting the following:
            ``(4) notwithstanding paragraphs (1), (2), and (3), with 
        respect to any electronic surveillance approved pursuant to 
        section 102 or 704, procedures that require that no contents of 
        any communication originated or sent by a United States person 
        shall be disclosed, disseminated, used or retained for longer 
        than 7 days unless a court order under section 105 is obtained 
        or unless the Attorney General determines that the information 
        indicates a threat of death or serious bodily harm to any 
        person.''.
            (4) by striking subsection (l); and
            (5) by striking subsection (n) and inserting the following:
    ``(n) `contents', when used with respect to a communication, 
includes any information concerning the substance, symbols, sounds, 
words, purport, or meaning of a communication, and does not include 
dialing, routing, addressing, or signaling information.''.
    (c) Electronic Surveillance Authorization.--Section 102 of FISA (50 
U.S.C. 1802) is amended to read as follows:

     ``electronic surveillance authorization without court order; 
certification by attorney general; reports to congressional committees; 
transmittal under seal; duties and compensation of communication common 
              carrier; applications; jurisdiction of court

    ``Sec. 102.  (a)(1) Notwithstanding any other law, the President 
through the Attorney General, may authorize electronic surveillance 
without a court order under this title to acquire foreign intelligence 
information for periods of up to 1 year if the Attorney General 
certifies in writing under oath that the electronic surveillance is 
directed at--
            ``(A)(i) the acquisition of the contents of communications 
        of foreign powers, as defined in paragraph (1), (2), or (3) of 
        section 101(a), or a person other than a United States person 
        acting as an agent of a foreign power, as defined in section 
        101(b)(1)(A) or (B); or
            ``(ii) the acquisition of technical intelligence, other 
        than the spoken communications of individuals, from property or 
        premises under the open and exclusive control of a foreign 
        power, as defined in paragraph (1), (2), or (3) of section 
        101(a); and
            ``(B) the proposed minimization procedures with respect to 
        such surveillance meet the definition of minimization 
        procedures under section 101(h);
if the Attorney General reports such minimization procedures and any 
changes thereto to the Select Committee on Intelligence of the Senate 
and the Permanent Select Committee on Intelligence of the House of 
Representatives at least 30 days prior to their effective date, unless 
the Attorney General determines immediate action is required and 
notifies the committees immediately of such minimization procedures and 
the reason for their becoming effective immediately.
    ``(2) An electronic surveillance authorized by this subsection may 
be conducted only in accordance with the Attorney General's 
certification and the minimization procedures. The Attorney General 
shall assess compliance with such procedures and shall report such 
assessments to the Select Committee on Intelligence of the Senate and 
the Permanent Select Committee on Intelligence of the House of 
Representatives under section 108(a). If an electronic surveillance 
authorized by this subsection is directed at an agent of a foreign 
power, the Attorney General's report assessing compliance with the 
minimization procedures shall also include a statement of the facts and 
circumstances relied upon to justify the belief that the target of the 
electronic surveillance is an agent of a foreign power.
    ``(3) The Attorney General shall immediately transmit under seal to 
the court established under section 103(a) a copy of any certification 
under this subsection. Such certification shall be maintained under 
security measures established by the Chief Justice with the concurrence 
of the Attorney General, in consultation with the Director of National 
Intelligence, and shall remain sealed unless--
            ``(A) an application for a court order with respect to the 
        surveillance is made under section 104; or
            ``(B) the certification is necessary to determine the 
        legality of the surveillance under section 106(f).
    ``(b)(1) Notwithstanding any other provision of law, the President, 
through the Attorney General, may authorize the acquisition of foreign 
intelligence information for periods of up to 1 year concerning a 
person reasonably believed to be outside the United States if the 
Attorney General certifies in writing under oath that he has determined 
that--
            ``(A) the acquisition does not constitute electronic 
        surveillance as defined in section 101(f);
            ``(B) the acquisition involves obtaining the foreign 
        intelligence information from or with the assistance of a wire 
        or electronic communications service provider, custodian, or 
        other person (including any officer, employee, agent, or other 
        specified person thereof) who has access to wire or electronic 
        communications, either as they are transmitted or while they 
        are stored, or equipment that is being or may be used to 
        transmit or store such communications;
            ``(C) a significant purpose of the acquisition is to obtain 
        foreign intelligence information; and
            ``(D) the minimization procedures to be employed with 
        respect to such acquisition activity meet the definition of 
        minimization procedures under section 101(h).
    ``(2) Such certification need not identify the specific facilities, 
places, premises, or property at which the acquisition will be 
directed.
    ``(3) An acquisition undertaken pursuant to this subsection may be 
conducted only in accordance with the Attorney General's certification 
and the minimization procedures adopted by the Attorney General. The 
Attorney General shall assess compliance with such procedures and shall 
report such assessments to the Select Committee on Intelligence of the 
Senate and the Permanent Select Committee on Intelligence of the House 
of Representatives under section 108(a).
    ``(4) The Attorney General shall immediately transmit under seal to 
the court established under section 103(a) a copy of any certification 
of the Attorney General under this subsection. Such certification shall 
be maintained under security measures established by the Chief Justice 
with the concurrence of the Attorney General, in consultation with the 
Director of National Intelligence, and shall remain sealed unless the 
certification is necessary to determine the legality of the acquisition 
under subsection (o).
    ``(c) With respect to the acquisition authorized under this 
section, the Attorney General may direct a specified person to--
            ``(1) furnish the government forthwith all information, 
        facilities, and assistance necessary to accomplish the 
        acquisition in such a manner as will protect its secrecy and 
        produce a minimum of interference with the services that such 
        person is providing to the target; and
            ``(2) maintain under security procedures approved by the 
        Attorney General and the Director of National Intelligence any 
        records concerning the acquisition or the aid furnished that 
        such person wishes to maintain.
    ``(d) The government shall compensate, at the prevailing rate, such 
specified person for furnishing the aid set forth in subsection (c).
    ``(e) In the case of a failure to comply with a directive issued 
pursuant to this section, the Attorney General may invoke the aid of 
the court established under section 103(a) to compel compliance with 
the directive. The court shall issue an order requiring the person or 
entity to comply with the directive forthwith if it finds that the 
directive was issued in accordance with subsection (a) or (b) and is 
otherwise lawful. Any failure to obey the order of the court may be 
punished by the court as contempt thereof. Any process under this 
section may be served in any judicial district in which the person or 
entity may be found.
    ``(f)(1)(A) A person receiving an Attorney General directive issued 
pursuant to this section may challenge the legality of that directive 
by filing a petition with the pool established by section 103(e)(1).
    ``(B) The presiding judge shall immediately assign a petition to 
one of the judges serving in the pool established by section 103(e)(1). 
Not later than 24 hours after the assignment of such petition, the 
assigned judge shall conduct an initial review of the directive. If the 
assigned judge determines that the petition is frivolous, the assigned 
judge shall immediately deny the petition and affirm the directive or 
any part thereof that is the subject of the petition. If the assigned 
judge determines the petition is not frivolous, the assigned judge 
shall within 72 hours consider the petition in accordance with the 
procedures established under section 103(e)(2) and provide a written 
statement for the record of the reasons for any determination under 
this subsection.
    ``(2) A judge considering a petition to modify or set aside a 
directive may grant such petition only if the judge finds that such 
directive does not meet the requirements of this section or is 
otherwise unlawful. If the judge does not modify or set aside the 
directive, the judge shall immediately affirm such directive, and order 
the recipient to comply therewith.
    ``(3) Any directive not explicitly modified or set aside consistent 
with this subsection shall remain in full effect.
    ``(g) A petition for review of a decision under subsection (f) to 
affirm, modify, or set aside a directive by the Government or any 
person receiving such directive shall be made within 7 days of issuance 
of the decision required by subsection (f) to the court of review 
established under section 103(b), which shall have jurisdiction to 
consider such petitions. The court of review shall provide for the 
record a written statement of the reasons for its decision and, on 
petition by the Government or any person receiving such directive for a 
writ of certiorari, the record shall be transmitted under seal to the 
Supreme Court of the United States, which shall have jurisdiction to 
review such decision.
    ``(h) Judicial proceedings under this section shall be concluded as 
expeditiously as possible. The record of proceedings, including 
petitions filed, orders granted, and statements of reasons for 
decision, shall be maintained under security measures established by 
the Chief Justice of the United States, in consultation with the 
Attorney General and the Director of National Intelligence.
    ``(i) All petitions under this section shall be filed under seal. 
In any proceedings under this section, the court shall, upon request of 
the Government, review ex parte and in camera any Government 
submission, or portions thereof, which may include classified 
information.
    ``(j) No cause of action shall lie in any court against any 
provider of a communication service or other person (including any 
officer, employee, agent, or other specified person thereof) for 
furnishing any information, facilities, or assistance in accordance 
with a directive under subsection (a) or (b).
    ``(k) Information acquired pursuant to an Attorney General 
authorization under this section concerning any United States person 
may be used and disclosed by Federal officers and employees without the 
consent of the United States person only in accordance with the 
minimization procedures required by subsection (a) or (b), as 
applicable. No otherwise privileged communication obtained in 
accordance with, or in violation of, the provisions of this section 
shall lose its privileged character. No information from an acquisition 
under this section may be used or disclosed by Federal officers or 
employees except for lawful purposes.
    ``(l) No information acquired pursuant to this section shall be 
disclosed for law enforcement purposes unless such disclosure is 
accompanied by a statement that such information, or any information 
derived therefrom, may only be used in a criminal proceeding with the 
advance authorization of the Attorney General.
    ``(m) Whenever the Government intends to enter into evidence or 
otherwise use or disclose in any trial, hearing, or other proceeding in 
or before any court, department, officer, agency, regulatory body, or 
other authority of the United States, against an aggrieved person, any 
information obtained or derived from an acquisition under this section, 
the Government shall, prior to the trial, hearing, or other proceeding 
or at a reasonable time prior to an effort to so disclose or so use 
that information or submit it in evidence, notify the aggrieved person 
and the court or other authority in which the information is to be 
disclosed or used that the Government intends to so disclose or so use 
such information.
    ``(n) Whenever any State or political subdivision thereof intends 
to enter into evidence or otherwise use or disclose in any trial, 
hearing, or other proceeding in or before any court, department, 
officer, agency, regulatory body, or other authority of a State or a 
political subdivision thereof, against an aggrieved person any 
information obtained or derived from an acquisition under this section, 
the State or political subdivision thereof shall notify the aggrieved 
person, the court or other authority in which the information is to be 
disclosed or used, and the Attorney General that the State or political 
subdivision thereof intends to so disclose or so use such information.
    ``(o) Any person against whom evidence obtained or derived from an 
acquisition authorized pursuant to this section to which he is an 
aggrieved person is to be, or has been, introduced or otherwise used or 
disclosed in any trial, hearing, or other proceeding in or before any 
court, department, officer, agency, regulatory body, or other authority 
of the United States, a State, or a political subdivision thereof, may 
move to suppress the evidence obtained or derived from such acquisition 
on the grounds that--
            ``(1) the information was unlawfully acquired; or
            ``(2) the acquisition was not made in conformity with an 
        order of authorization or approval.
Such a motion shall be made before the trial, hearing, or other 
proceeding unless there was no opportunity to make such a motion or the 
person was not aware of the grounds of the motion.
    ``(p) Whenever a court or other authority is notified pursuant to 
subsection (m) or (n), whenever a motion is made pursuant to subsection 
(o), or whenever any motion or request is made by an aggrieved person 
pursuant to any other statute or rule of the United States or any State 
before any court or other authority of the United States or any State 
to discover or obtain an Attorney General directive or other materials 
relating to the acquisition authorized under this section or to 
discover, obtain, or suppress evidence or information obtained or 
derived from the acquisition authorized under this section, the United 
States district court or, where the motion is made before another 
authority, the United States district court in the same district as the 
authority, shall, notwithstanding any other law, if the Attorney 
General files an affidavit under oath that disclosure or an adversary 
hearing would harm the national security of the United States, review 
in camera and ex parte the directive, and such other materials relating 
to the acquisition as may be necessary to determine whether the 
acquisition authorized under this section was lawfully authorized and 
conducted. In making this determination, the court may disclose to the 
aggrieved person, under appropriate security procedures and protective 
orders, portions of the directive or other materials relating to the 
acquisition only where such disclosure is necessary to make an accurate 
determination of the legality of the acquisition.
    ``(q) If the United States district court pursuant to subsection 
(o) determines that the acquisition authorized under this section was 
not lawfully authorized or conducted, it shall, in accordance with the 
requirements of law, suppress the evidence which was unlawfully 
obtained or derived or otherwise grant the motion of the aggrieved 
person. If the court determines that such acquisition was lawfully 
authorized and conducted, it shall deny the motion of the aggrieved 
person except to the extent that due process requires discovery or 
disclosure.
    ``(r) Orders granting motions or requests under subsection (o), 
decisions under this section that an acquisition was not lawfully 
authorized or conducted, and orders of the United States district court 
requiring review or granting disclosure of directives or other 
materials relating to such acquisition shall be final orders and 
binding upon all courts of the United States and the several States 
except a United States court of appeals and the Supreme Court.
    ``(s) Federal officers who acquire foreign intelligence information 
under this section may consult with Federal law enforcement officers or 
law enforcement personnel of a State or political subdivision of a 
State (including the chief executive officer of that State or political 
subdivision who has the authority to appoint or direct the chief law 
enforcement officer of that State or political subdivision) to 
coordinate efforts to investigate or protect against--
            ``(1) actual or potential attack or other grave hostile 
        acts of a foreign power or an agent of a foreign power;
            ``(2) sabotage, international terrorism, or the development 
        or proliferation of weapons of mass destruction by a foreign 
        power or an agent of a foreign power; or
            ``(3) clandestine intelligence activities by an 
        intelligence service or network of a foreign power or by an 
        agent of a foreign power.
    ``(t) Coordination authorized by subsection (s) shall not preclude 
the certification required by subsection (a) or (b), as applicable.
    ``(u) Retention of Directives and Orders.--Directives made and 
orders granted under this section shall be retained for a period of at 
least 10 years from the date when they were made.''.
    (d) Designation of Judges.--Section 103 of FISA (50 U.S.C. 1803) is 
amended--
            (1) in subsection (a), by inserting, ``at least'' before 
        ``seven of the United States judicial circuits''; and
            (2) at the end by adding the following new subsection:
    ``(g) Applications for a court order under this title are 
authorized if the President has, by written authorization, empowered 
the Attorney General to approve applications to the court having 
jurisdiction under this section, and a judge to whom an application is 
made may, notwithstanding any other law, grant an order, in conformity 
with section 105, approving electronic surveillance of a foreign power 
or an agent of a foreign power for the purpose of obtaining foreign 
intelligence information.''.
    (e) Applications for Court Orders.--Section 104 of FISA (50 U.S.C. 
1804) is amended--
            (1) in subsection (a), by striking paragraphs (6) through 
        (11) and inserting the following:
            ``(6) a certification or certifications by the Assistant to 
        the President for National Security Affairs or an executive 
        branch official authorized by the President to conduct 
        electronic surveillance for foreign intelligence purposes--
                    ``(A) that the certifying official deems the 
                information sought to be foreign intelligence 
                information;
                    ``(B) that a significant purpose of the 
                surveillance is to obtain foreign intelligence 
                information;
                    ``(C) that such information cannot reasonably be 
                obtained by normal investigative techniques; and
                    ``(D) including a statement of the basis for the 
                certification that--
                            ``(i) the information sought is the type of 
                        foreign intelligence information designated; 
                        and
                            ``(ii) such information cannot reasonably 
                        be obtained by normal investigative techniques;
            ``(7) a statement of the period of time for which the 
        electronic surveillance is required to be maintained, and if 
        the nature of the intelligence gathering is such that the 
        approval of the use of electronic surveillance under this title 
        should not automatically terminate when the described type of 
        information has first been obtained, a description of facts 
        supporting the belief that additional information of the same 
        type will be obtained thereafter;
            ``(8) a summary description of the nature of the 
        information sought and the type of communications or activities 
        to be subject to the surveillance;
            ``(9) a summary statement of the facts concerning all 
        previous applications that have been made to any judge under 
        this title involving any of the persons, facilities, or places 
        specified in the application, and the action taken on each 
        previous application; and
            ``(10) a summary statement of the means by which the 
        surveillance will be effected and a statement whether physical 
        entry is required to effect the surveillance.'';
            (2) by striking subsection (b);
            (3) by redesignating subsections (c) through (e) as 
        subsections (b) through (d), respectively; and
            (4) in subsection (d)(1)(A), as redesignated by paragraph 
        (3), by inserting after ``Secretary of State'' inserting 
        ``Director of the Central Intelligence Agency''.
    (f) Issuance of Order.--Section 105 of FISA (50 U.S.C. 1805) is 
amended--
            (1) in subsection (a), by--
                    (A) striking paragraph (1); and
                    (B) redesignating paragraphs (2) through (5) as 
                paragraphs (1) through (4), respectively;
            (2) by striking paragraph (1) of subsection (c) and 
        inserting the following:
            ``(1) An order approving an electronic surveillance under 
        this section shall specify--
                    ``(A) the identity, if known, or a description of 
                the target of the electronic surveillance identified or 
                described in the application pursuant to section 
                104(a)(3);
                    ``(B) the nature and location of each of the 
                facilities or places at which the electronic 
                surveillance will be directed, if known;
                    ``(C) the period of time during which the 
                electronic surveillance is approved;
                    ``(D) the type of information sought to be acquired 
                and the type of communications or activities to be 
                subjected to the surveillance; and
                    ``(E) the means by which the electronic 
                surveillance will be effected and whether physical 
                entry will be used to effect the surveillance.'';
            (3) by striking subsection (d) and inserting the following:
    ``(d) Each order under this section shall specify the type of 
electronic surveillance involved, including whether physical entry is 
required.'';
            (4) by striking paragraph (2) of subsection (e) and 
        inserting the following:
    ``(2) Extensions of an order issued under this title may be granted 
on the same basis as an original order upon an application for an 
extension and new findings made in the same manner as required for an 
original order and may be for a period not longer than the court 
determines to be reasonable or 1 year, whichever is less.'';
            (5) by striking subsection (f) and inserting the following:
    ``(f)(1) Notwithstanding any other provision of this title, when an 
executive branch officer appointed by the President with the advice and 
consent of the Senate who is authorized by the President to conduct 
electronic surveillance reasonably determines that--
            ``(A) an emergency situation exists with respect to the 
        employment of electronic surveillance to obtain foreign 
        intelligence information before an order authorizing such 
        surveillance can with due diligence be obtained; and
            ``(B) the factual basis for issuance of an order under this 
        title to approve such surveillance exists;
that official may authorize the emergency employment of electronic 
surveillance in accordance with paragraph (2).
    ``(2) Under paragraph (1), the following requirements shall be 
satisfied:
            ``(A) The Attorney General shall be informed of the 
        emergency electronic surveillance.
            ``(B) A judge having jurisdiction under section 103 shall 
        be informed by the Attorney General or his designee as soon as 
        practicable following such authorization that the decision has 
        been made to employ emergency electronic surveillance.
            ``(C) An application in accordance with this title shall be 
        made to that judge or another judge having jurisdiction under 
        section 103 as soon as practicable, but not more than 7 days 
        after such surveillance is authorized. In the absence of a 
        judicial order approving such electronic surveillance, the 
        surveillance shall terminate when the information sought is 
        obtained, when the application for the order is denied, or 
        after the expiration of 7 days from the time of emergency 
        authorization, whichever is earliest. In the event that such 
        application for approval is denied, or in any other case where 
        the electronic surveillance is terminated and no order is 
        issued approving the surveillance, no information obtained or 
        evidence derived from such surveillance shall be received in 
        evidence or otherwise disclosed in any trial, hearing, or other 
        proceeding in or before any court, grand jury, department, 
        office, agency, regulatory body, legislative committee, or 
        other authority of the United States, a State, or political 
        subdivision thereof, and no information concerning any United 
        States person acquired from such surveillance shall 
        subsequently be used or disclosed in any other manner by 
        Federal officers or employees without the consent of such 
        person, except with the approval of the Attorney General if the 
        information indicates a threat of death or serious bodily harm 
        to any person. A denial of the application made under this 
        subsection may be reviewed as provided in section 103.
            ``(D) The official authorizing the emergency employment of 
        electronic surveillance shall require that the minimization 
        procedures required by this title for the issuance of a 
        judicial order be followed.''; and
            (6) in subsection (i)--
                    (A) by striking ``a wire or'' and inserting 
                ``any'';
                    (B) by striking ``chapter'' and inserting 
                ``title''; and
                    (C) by adding at the end ``, or in response to 
                certification by the Attorney General or his designee 
                seeking information, facilities, or technical 
                assistance from such person under section 102 of this 
                title''.
    (g) Use of Information.--Section 106 of FISA (50 U.S.C. 1806) is 
amended--
            (1) in subsection (i)--
                    (A) by striking ``radio''; and
                    (B) by inserting ``contain foreign intelligence 
                information or'' after ``the Attorney General 
                determines that the contents'' inserting ``contain 
                foreign intelligence information or''; and
            (2) in subsection (k), by striking ``1804(a)(7)'' and 
        inserting ``104(a)(6)''.
    (h) Congressional Oversight.--Section 108 of FISA (50 U.S.C. 1808) 
is amended by adding at the end the following:
    ``(c) Document Management System for Applications for Orders 
Approving Electronic Surveillance.--
            ``(1) System proposed.--The Attorney General and Director 
        of National Intelligence shall, in consultation with the 
        Director of the Federal Bureau of Investigation, the Director 
        of the National Security Agency, the Director of the Central 
        Intelligence Agency, and the court established under section 
        103(b), conduct a feasibility study to develop and implement a 
        secure, classified document management system that permits the 
        prompt preparation, modification, and review by appropriate 
        personnel of the Department of Justice, the Federal Bureau of 
        Investigation, the National Security Agency, and other 
        applicable elements of the United States Government of 
        applications under section 104 before their submittal to that 
        court.
            ``(2) Scope of system.--The document management system 
        proposed in paragraph (1) shall--
                    ``(A) permit and facilitate the prompt submittal of 
                applications and all other matters, including 
                electronic filings, to the court established under 
                section 103(b) under section 104 or 105(g)(5); and
                    ``(B) permit and facilitate the prompt transmittal 
                of rulings of that court to personnel submitting 
                applications described in paragraph (1).''.
    (i) Amendments to Fisa Title I Relating to Weapons of Mass 
Destruction.--
            (1) Section 101 of FISA, as amended by subsection (b) of 
        this section, is further amended--
                    (A) in subsection (b)(1)--
                            (i) by striking ``or'' at the end of 
                        subparagraph (D);
                            (ii) by redesignating subparagraph (E) as 
                        subparagraph (F); and
                            (iii) by inserting after subparagraph (D) 
                        the following new subparagraph (E):
                    ``(E) engages in the development or proliferation 
                of weapons of mass destruction, or activities in 
                preparation therefor; or;'';
                    (B) in subsection (b)(2)(C), by striking ``sabotage 
                or international terrorism'' and inserting ``sabotage, 
                international terrorism, or the development or 
                proliferation of weapons of mass destruction''; and
                    (C) by inserting after subsection (k) the following 
                new subsection (l):
    ``(l) `Weapon of mass destruction' means--
            ``(1) any destructive device (as that term is defined in 
        section 921 of title 18, United States Code) that is intended 
        or has the capability, to cause death or serious bodily injury 
        to a significant number of people;
            ``(2) any weapon that is designed or intended to cause 
        death or serious bodily injury through the release, 
        dissemination, or impact of toxic or poisonous chemicals, or 
        their precursors;
            ``(3) any weapon involving a biological agent, toxin, or 
        vector (as those terms are defined in section 178 of title 18, 
        United States Code); or
            ``(4) any weapon that is designed to release radiation or 
        radioactivity at a level dangerous to human life.''.
            (2) Sections 101(e)(1)(B), 106(k)(1)(B), and 305(k)(1)(B) 
        of FISA are each amended by striking ``sabotage or 
        international terrorism'' and inserting ``sabotage, 
        international terrorism, or the development or proliferation of 
        weapons of mass destruction''.
    (j) Conforming Amendments to Titles I and III of Fisa to 
Accommodate International Movements of Targets.--
            (1) Section 105(e) of FISA is amended by adding at the end 
        the following new paragraph:
    ``(4) An order issued under this section shall remain in force 
during the authorized period of surveillance notwithstanding the 
absence of the target from the United States, unless the Government 
files a motion to extinguish the order and the court grants the 
motion.''.
            (2) Section 304(d) of FISA is amended by adding at the end 
        the following new paragraph:
    ``(4) An order issued under this section shall remain in force 
during the authorized period of physical search notwithstanding the 
absence of the target from the United States, unless the Government 
files a motion to extinguish the order and the court grants the 
motion.''.

SEC. 210. CONFORMING AMENDMENT TO TABLE OF CONTENTS.

    The table of contents for the Foreign Intelligence Surveillance Act 
of 1978 is amended--
            (1) by striking the item relating to section 102 and 
        inserting the following new item:

``Sec. 102. Electronic surveillance authorization without court order; 
                            certification by attorney general; reports 
                            to congressional committees; transmittal 
                            under seal; duties and compensation of 
                            communication common carrier; applications; 
                            jurisdiction of court.'';
            (2) by striking the items relating to sections 111, 309, 
        and 404; and
            (3) by striking the items related to title VII and section 
        701 and inserting the following:

             ``TITLE VII--ELECTRONIC SURVEILLANCE PROGRAMS

``Sec. 701. Definitions.
``Sec. 702. Foreign intelligence surveillance court jurisdiction to 
                            review electronic surveillance programs.
``Sec. 703. Applications for approval of electronic surveillance 
                            programs.
``Sec. 704. Approval of electronic surveillance programs.
``Sec. 705. Congressional oversight.
                      ``TITLE VIII--EFFECTIVE DATE

``Sec. 801. Effective date.''.
                                                       Calendar No. 633

109th CONGRESS

  2d Session

                                S. 3929

_______________________________________________________________________

                                 A BILL

 To authorize military commissions to bring terrorists to justice, to 
 strengthen and modernize terrorist surveillance capabilities, and for 
                            other purposes.

_______________________________________________________________________

                           September 25, 2006

            Read the second time and placed on the calendar`