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[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3930 Enrolled Bill (ENR)]

        S.3930

                       One Hundred Ninth Congress

                                 of the

                        United States of America

                          AT THE SECOND SESSION

          Begun and held at the City of Washington on Tuesday,
             the third day of January, two thousand and six

                                 An Act

 
 To authorize trial by military commission for violations of the law of 
                      war, and for other purposes.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Military 
Commissions Act of 2006''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Construction of Presidential authority to establish military 
          commissions.
Sec. 3. Military commissions.
Sec. 4. Amendments to Uniform Code of Military Justice.
Sec. 5. Treaty obligations not establishing grounds for certain claims.
Sec. 6. Implementation of treaty obligations.
Sec. 7. Habeas corpus matters.
Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to 
          protection of certain United States Government personnel.
Sec. 9. Review of judgments of military commissions.
Sec. 10. Detention covered by review of decisions of Combatant Status 
          Review Tribunals of propriety of detention.

SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH MILITARY 
              COMMISSIONS.

    The authority to establish military commissions under chapter 47A 
of title 10, United States Code, as added by section 3(a), may not be 
construed to alter or limit the authority of the President under the 
Constitution of the United States 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.

SEC. 3. 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
``I. General Provisions...........................................  948a
``II. Composition of Military Commissions.........................  948h
``III. Pre-Trial Procedure........................................  948q
``IV. Trial Procedure.............................................  949a
``V. Sentences....................................................  949s
``VI. Post-Trial Procedure and Review of Military Commissions.....  950a
``VII. Punitive Matters...........................................  950p

                   ``SUBCHAPTER I--GENERAL PROVISIONS

``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``948e. Annual report to congressional committees.

``Sec. 948a. Definitions

    ``In this chapter:
        ``(1) Unlawful enemy combatant.--(A) The term `unlawful enemy 
    combatant' means--
            ``(i) a person who has engaged in hostilities or who has 
        purposefully and materially supported hostilities against the 
        United States or its co-belligerents who is not a lawful enemy 
        combatant (including a person who is part of the Taliban, al 
        Qaeda, or associated forces); or
            ``(ii) a person who, before, on, or after the date of the 
        enactment of the Military Commissions Act of 2006, has been 
        determined to be an unlawful enemy combatant by a Combatant 
        Status Review Tribunal or another competent tribunal 
        established under the authority of the President or the 
        Secretary of Defense.
        ``(B) Co-belligerent.--In this paragraph, the term `co-
    belligerent', with respect to the United States, means any State or 
    armed force joining and directly engaged with the United States in 
    hostilities or directly supporting hostilities against a common 
    enemy.
        ``(2) Lawful enemy combatant.--The term `lawful enemy 
    combatant' means a person 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.
        ``(3) Alien.--The term `alien' means a person who is not a 
    citizen of the United States.
        ``(4) 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)).
        ``(5) Geneva conventions.--The term `Geneva Conventions' means 
    the international conventions signed at Geneva on August 12, 1949.

``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) Authority for Military Commissions Under This Chapter.--The 
President is authorized to establish military commissions under this 
chapter for offenses triable by military commission as provided in this 
chapter.
    ``(c) 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 in this chapter. The judicial construction and 
application of that chapter are not binding on military commissions 
established under this chapter.
    ``(d) 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 this chapter.
    ``(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) Status of 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.
    ``(g) Geneva Conventions Not Establishing Source of Rights.--No 
alien unlawful enemy combatant subject to trial by military commission 
under this chapter may invoke the Geneva Conventions as a source of 
rights.

``Sec. 948c. Persons subject to military commissions

    ``Any alien unlawful enemy combatant is subject to trial by 
military commission under 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 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) Determination of Unlawful Enemy Combatant Status 
Dispositive.--A finding, whether before, on, or after the date of the 
enactment of the Military Commissions Act of 2006, by a Combatant 
Status Review Tribunal or another competent tribunal established under 
the authority of the President or the Secretary of Defense that a 
person is an unlawful enemy combatant is dispositive for purposes of 
jurisdiction for trial by military commission under this chapter.
    ``(d) Punishments.--A military commission under this chapter may, 
under such limitations as the Secretary of Defense may prescribe, 
adjudge any punishment not forbidden by this chapter, including the 
penalty of death when authorized under this chapter or the law of war.

``Sec. 948e. Annual report to congressional committees

    ``(a) 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 under this chapter during such 
year.
    ``(b) Form.--Each report under this section shall be submitted in 
unclassified form, but may include a classified annex.

          ``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.
    ``(b) Detail of Members.--When convening a military commission 
under this chapter, the convening authority shall detail as members of 
the commission such members of the armed forces eligible under 
subsection (a), 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) Qualifications.--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 of the commission 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 of the commission.
    ``(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 against the accused.
    ``(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 
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--
            ``(A) is 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) is 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--
            ``(A) is a member of the bar of a Federal court or of the 
        highest court of a State; and
            ``(B) is 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 commission 
qualified court reporters, who shall make a verbatim recording of the 
proceedings of and testimony taken before the 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 commission and, as necessary, 
for trial counsel and defense counsel 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 commission, who shall also be responsible for 
preparing the record of the proceedings.

``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; treatment of 
          statements obtained by torture and other statements.
``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 the signer's 
    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 against him as soon as practicable.

``Sec. 948r. Compulsory self-incrimination prohibited; treatment of 
            statements obtained by torture and other statements

    ``(a) In General.--No person shall be required to testify against 
himself at a proceeding of a military commission under this chapter.
    ``(b) Exclusion of 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 that 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 Defense 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 the statement 
    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 Defense 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 the statement 
    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 amount to cruel, inhuman, or degrading treatment prohibited by 
    section 1003 of the Detainee Treatment Act of 2005.

``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. Such charges shall be served in English and, if appropriate, in 
another language that the accused understands. Such service shall be 
made 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, in consultation with the Attorney General. 
Such procedures shall, so far as the Secretary considers practicable or 
consistent with military or intelligence activities, apply the 
principles of law and the rules of evidence in trial by general courts-
martial. Such procedures and rules of evidence may not be contrary to 
or inconsistent with this chapter.
    ``(b) Rules for Military Commission.--(1) Notwithstanding any 
departures from the law and the rules of evidence in trial by general 
courts-martial authorized by subsection (a), the procedures and rules 
of evidence in trials by military commission under this chapter shall 
include the following:
        ``(A) The accused shall be permitted to present evidence in his 
    defense, to cross-examine the witnesses who testify against him, 
    and to examine and respond to evidence admitted against him on the 
    issue of guilt or innocence and for sentencing, as provided for by 
    this chapter.
        ``(B) The accused shall 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) The accused shall receive the assistance of counsel as 
    provided for by section 948k.
        ``(D) The accused shall be permitted to represent himself, as 
    provided for by paragraph (3).
    ``(2) In establishing procedures and rules of evidence for military 
commission proceedings, the Secretary of Defense may prescribe the 
following provisions:
        ``(A) Evidence shall be admissible if the military judge 
    determines that the evidence would have probative value to a 
    reasonable person.
        ``(B) Evidence shall not be excluded from trial by military 
    commission on the grounds that the evidence was not seized pursuant 
    to a search warrant or other authorization.
        ``(C) 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.
        ``(D) Evidence shall be admitted as authentic so long as--
            ``(i) the military judge of the military commission 
        determines that there is sufficient basis to find 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.
        ``(E)(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 
    the preceding sentence is subject to the requirements and 
    limitations applicable to the disclosure of classified information 
    in section 949j(c) 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.
        ``(F) The military judge shall exclude any evidence the 
    probative value of which is substantially outweighed--
            ``(i) by the danger of unfair prejudice, confusion of the 
        issues, or misleading the commission; or
            ``(ii) by considerations of undue delay, waste of time, or 
        needless presentation of cumulative evidence.
    ``(3)(A) The accused in a military commission under this chapter 
who exercises the right to self-representation under paragraph (1)(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 
(1)(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.
    ``(d) Notification to Congressional Committees of Changes to 
Procedures.--Not later than 60 days before the date on which any 
proposed modification of the procedures in effect for military 
commissions under this chapter goes into effect, the Secretary of 
Defense shall submit to the Committee on Armed Services of the Senate 
and the Committee on Armed Services of the House of Representatives a 
report describing the modification.

``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 his 
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 his judicial acts; or
        ``(C) the exercise of professional judgment by trial counsel or 
    defense counsel.
    ``(3) Paragraphs (1) and (2) do 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, but only if 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 
    classified information that is 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) Civilian defense counsel shall protect any classified 
information received during the course of representation of the accused 
in accordance with all applicable law governing the protection of 
classified information and may not divulge such information to any 
person not authorized to receive it.
    ``(5) If the accused is represented by civilian counsel, detailed 
military counsel shall act as associate counsel.
    ``(6) 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 that 
person's sole discretion, may detail additional military counsel to 
represent the accused.
    ``(7) 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 (c) and (e), any 
proceedings under paragraph (1) shall--
        ``(A) be conducted in the presence of the accused, defense 
    counsel, and trial counsel; and
        ``(B) be made part of the record.
    ``(b) Proceedings in Presence of Accused.--Except as provided in 
subsections (c) and (e), all proceedings of a military commission under 
this chapter, including any consultation of the members with the 
military judge or counsel, shall--
        ``(1) be in the presence of the accused, defense counsel, and 
    trial counsel; and
        ``(2) be made a part of the record.
    ``(c) Deliberation or Vote of Members.--When the members of a 
military commission under this chapter deliberate or vote, only the 
members may be present.
    ``(d) 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, but only in accordance with this subsection.
    ``(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.
    ``(e) 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.
    ``(f) 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. The rule in the 
    preceding sentence 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 of the information 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 commission. The military judge 
shall determine the relevance and validity of challenges for cause. The 
military judge 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.--Each accused and the trial counsel 
are entitled to one peremptory challenge. 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, each accused and the trial counsel are 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 the same, 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 prescribed in 
regulations of the Secretary of Defense. Those 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.

``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) Entry of 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 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) Right of Defense Counsel.--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.
    ``(b) Process for Compulsion.--Process issued in a military 
commission under this chapter to compel witnesses to appear and testify 
and to compel the production of other evidence--
        ``(1) shall be similar to that which courts of the United 
    States having criminal jurisdiction may lawfully issue; and
        ``(2) shall run to any place where the United States shall have 
    jurisdiction thereof.
    ``(c) 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 to 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.
    ``(d) 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 (c).
    ``(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 general court-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 of the commission as to the 
defense of lack of mental responsibility under this section and shall 
charge them 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) No person may be sentenced by a military 
commission to suffer death, except insofar as--
        ``(A) the penalty of death is expressly authorized under this 
    chapter 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 is convicted of the offense by the 
    concurrence of all the members present at the time the vote is 
    taken; and
        ``(D) all the members present at the time the vote is taken 
    concur in the sentence of death.
    ``(2) 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.
    ``(3) All other 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.
    ``(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.
    ``(2) In any case described in paragraph (1) in which 12 members 
are not reasonably available 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 9 members), and 
the military commission may be assembled, and the trial held, with not 
fewer than the number of members so specified. In such a 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 of the commission 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 be given a redacted version of the record consistent with the 
requirements of section 949d 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. Appellate referral; 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; procedures for execution of sentence of 
          death.
``950j. Finality or 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 the accused 
has been given 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)(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 on the sentence 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.
    ``(3) 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, may--
        ``(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.
    ``(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. Appellate referral; waiver or withdrawal of appeal

    ``(a) Automatic Referral for Appellate Review.--Except as provided 
under subsection (b), in each case in which the final decision of a 
military commission (as approved by the convening authority) includes a 
finding of guilty, the convening authority shall refer the case to the 
Court of Military Commission Review. Any such referral shall be made in 
accordance with procedures prescribed under regulations of the 
Secretary.
    ``(b) Waiver of Right of Review.--(1) In each case subject to 
appellate review under section 950f of this title, except a case in 
which the sentence as approved under section 950b of this title extends 
to death, the accused may file with the convening authority a statement 
expressly waiving the right of the accused to such review.
    ``(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 on 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.
    ``(c) 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.
    ``(d) 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 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 (d), (e), or (f) of 
    section 949d of this title or section 949j(c) 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 such 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.
    ``(d) Appeal From Adverse Ruling.--The United States may appeal an 
adverse ruling on an appeal under subsection (c) to the United States 
Court of Appeals for the District of Columbia Circuit by filing a 
petition for review in the Court of Appeals within 10 days after the 
date of such ruling. Review under this subsection shall be at the 
discretion of the Court of Appeals.

``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 be serve as an 
appellate military judge in any case in which that person acted as a 
military judge, counsel, or reviewing official.
    ``(c) Cases To Be Reviewed.--The Court of Military Commission 
Review, in accordance with procedures prescribed under regulations of 
the Secretary, shall review the record in each case that is referred to 
the Court by the convening authority under section 950c of this title 
with respect to any matter of law raised by the accused.
    ``(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) Exclusive Appellate Jurisdiction.--(1)(A) Except as provided 
in subparagraph (B), the United States Court of Appeals for the 
District of Columbia Circuit shall have exclusive jurisdiction to 
determine the validity of a final judgment rendered by a military 
commission (as approved by the convening authority) under this chapter.
    ``(B) The Court of Appeals may not review the final judgment until 
all other appeals under this chapter have been waived or exhausted.
    ``(2) A petition for review must be filed by the accused in the 
Court of Appeals not later than 20 days after the date on which--
        ``(A) written notice of the final decision of the Court of 
    Military Commission Review is served on the accused or on defense 
    counsel; or
        ``(B) 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.
    ``(b) Standard for Review.--In a case reviewed by it under this 
section, the Court of Appeals may act only with respect to matters of 
law.
    ``(c) Scope of Review.--The jurisdiction of the Court of Appeals on 
an appeal under subsection (a) shall be limited to the consideration 
of--
        ``(1) whether the final decision was consistent with the 
    standards and procedures specified in this chapter; and
        ``(2) to the extent applicable, the Constitution and the laws 
    of the United States.
    ``(d) Supreme Court.--The Supreme Court may review by writ of 
certiorari the final judgment of the Court of Appeals pursuant to 
section 1257 of title 28.

``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 for counsel 
appearing before military commissions under this chapter.
    ``(b) Representation of United States.--Appellate counsel appointed 
under subsection (a)--
        ``(1) shall represent the United States in any appeal or review 
    proceeding under this chapter before the Court of Military 
    Commission Review; and
        ``(2) may, when requested to do so by the Attorney General in a 
    case arising under this chapter, represent the United States before 
    the United States Court of Appeals for the District of Columbia 
    Circuit or the Supreme Court.
    ``(c) Representation of Accused.--The accused shall be represented 
by appellate counsel appointed under subsection (a) before the Court of 
Military Commission Review, the United States Court of Appeals for the 
District of Columbia Circuit, and the Supreme Court, and by civilian 
counsel if retained by the accused. Any such civilian counsel shall 
meet the qualifications under paragraph (3) of section 949c(b) of this 
title for civilian counsel appearing before military commissions under 
this chapter and shall be subject to the requirements of paragraph (4) 
of that section.

``Sec. 950i. Execution of sentence; procedures for execution of 
            sentence of death

    ``(a) In General.--The Secretary of Defense is authorized to carry 
out a sentence imposed by a military commission under this chapter in 
accordance with such procedures as the Secretary may prescribe.
    ``(b) 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.
    ``(c) 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 judgment as to the legality of the proceedings 
(and with respect to death, approval under subsection (b)).
    ``(2) A judgment 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 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 that 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--
            ``(i) a petition for a writ of certiorari is not timely 
        filed;
            ``(ii) such a petition is denied by the Supreme Court; or
            ``(iii) review is otherwise completed in accordance with 
        the judgment of the Supreme Court.
    ``(d) 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 or 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 the enactment of the Military Commissions 
Act of 2006, 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.
``950p.  Statement of substantive offenses.
``950q.  Principals.
``950r.  Accessory after the fact.
``950s.  Conviction of lesser included offense.
``950t.  Attempts.
``950u.  Solicitation.
``950v.  Crimes triable by military commissions.
``950w.  Perjury and obstruction of justice; contempt.

``Sec. 950p. 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. 950q. Principals

    ``Any person is punishable as a principal 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 who failed to take the necessary and reasonable 
    measures to prevent such acts or to punish the perpetrators 
    thereof.

``Sec. 950r. 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. 950s. Conviction of lesser included offense

    ``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. 950t. 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. 950u. 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. 950v. Crimes triable by military commissions

    ``(a) Definitions and Construction.--In this section:
        ``(1) Military objective.--The term `military objective' 
    means--
            ``(A) combatants; and
            ``(B) those objects during an armed conflict--
                ``(i) which, by their nature, location, purpose, or 
            use, effectively contribute to the opposing force's war-
            fighting or war-sustaining capability; and
                ``(ii) the total or partial destruction, capture, or 
            neutralization of which would constitute a definite 
            military advantage to the attacker under the circumstances 
            at the time of the attack.
        ``(2) Protected person.--The term `protected person' means any 
    person entitled to protection under one or more of the Geneva 
    Conventions, including--
            ``(A) civilians not taking an active part in hostilities;
            ``(B) military personnel placed hors de combat by sickness, 
        wounds, or detention; and
            ``(C) military medical or religious personnel.
        ``(3) Protected property.--The term `protected property' means 
    property specifically protected by the law of war (such as 
    buildings dedicated to religion, education, art, science or 
    charitable purposes, historic monuments, hospitals, or places where 
    the sick and wounded are collected), if such property is not being 
    used for military purposes or is not otherwise a military 
    objective. Such 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.
        ``(4) Construction.--The intent specified for an offense under 
    paragraph (1), (2), (3), (4), or (12) of subsection (b) precludes 
    the applicability of such offense with regard to--
            ``(A) collateral damage; or
            ``(B) death, damage, or injury incident to a lawful attack.
    ``(b) Offenses.--The following offenses shall be triable by 
military commission under this chapter at any time without limitation:
        ``(1) 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.
        ``(2) 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.
        ``(3) 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.
        ``(4) 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.
        ``(5) 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.
        ``(6) 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.
        ``(7) 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.
        ``(8) 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.
        ``(9) 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.
        ``(10) 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.
        ``(11) 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.
        ``(12) Cruel or inhuman treatment.--
            ``(A) Offense.--Any person subject to this chapter who 
        commits 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 paragraph:
                ``(i) The term `serious physical pain or suffering' 
            means 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.

                ``(ii) The term `severe mental pain or suffering' has 
            the meaning given that term in section 2340(2) of title 18.
                ``(iii) 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--

                    ``(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 Commissions 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.

        ``(13) 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 paragraph, 
        the term `serious bodily injury' means bodily injury which 
        involves--
                ``(i) a substantial risk of death;
                ``(ii) extreme physical pain;
                ``(iii) protracted and obvious disfigurement; or
                ``(iv) protracted loss or impairment of the function of 
            a bodily member, organ, or mental faculty.
        ``(14) 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.
        ``(15) 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.
        ``(16) 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.
        ``(17) 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.
        ``(18) 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.
        ``(19) 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.
        ``(20) 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 
    necessity, shall be punished as a military commission under this 
    chapter may direct.
        ``(21) 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.
        ``(22) Sexual assault or abuse.--Any person subject to this 
    chapter who forcibly or with coercion or threat of force engages in 
    sexual contact with one or more persons, or causes one or more 
    persons to engage in sexual contact, shall be punished as a 
    military commission under this chapter may direct.
        ``(23) 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.
        ``(24) 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.
        ``(25) 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 paragraph (24)), 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 
        paragraph, the term `material support or resources' has the 
        meaning given that term in section 2339A(b) of title 18.
        ``(26) 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.
        ``(27) Spying.--Any person subject to this chapter who 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.
        ``(28) Conspiracy.--Any person subject to this chapter who 
    conspires to commit one or more substantive offenses triable by 
    military commission under this chapter, 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. 950w. Perjury and obstruction of justice; contempt

    ``(a) 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 military commissions under this 
chapter.
    ``(b) 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.''.
        (2) Tables of chapters amendments.--The tables of chapters at 
    the beginning of subtitle A, and at the beginning of 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:

``47A. Military Commissions......................................948a''.
    (b) Submittal of Procedures to Congress.--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)).

SEC. 4. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE.

    (a) Conforming Amendments.--Chapter 47 of title 10, United States 
Code (the Uniform Code of Military Justice), is amended as follows:
        (1) Applicability to lawful enemy combatants.--Section 802(a) 
    (article 2(a)) is amended by adding at the end the following new 
    paragraph:
        ``(13) Lawful enemy combatants (as that term is defined in 
    section 948a(2) of this title) who violate the law of war.''.
        (2) Exclusion of applicability to chapter 47a commissions.--
    Sections 821, 828, 848, 850(a), 904, and 906 (articles 21, 28, 48, 
    50(a), 104, and 106) are amended by adding at the end the following 
    new sentence: ``This section does not apply to a military 
    commission established under chapter 47A of this title.''.
        (3) Inapplicability of requirements relating to regulations.--
    Section 836 (article 36) is amended--
            (A) in subsection (a), by inserting ``, except as provided 
        in chapter 47A of this title,'' after ``but which may not''; 
        and
            (B) in subsection (b), by inserting before the period at 
        the end ``, except insofar as applicable to military 
        commissions established under chapter 47A of this title''.
    (b) 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 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.''.

SEC. 5. 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 corpus or other 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 3114);
        (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. 6. 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 (except as to grave breaches 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) Geneva conventions.--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) Third geneva convention.--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 Commissions 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.
        ``(5) Definition of grave breaches.--The definitions in this 
    subsection are intended only to define the grave breaches of common 
    Article 3 and not the full scope of United States obligations under 
    that Article.''.
        (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 action to ensure 
    compliance with this subsection, including through the 
    establishment of administrative rules and procedures.

SEC. 7. HABEAS CORPUS MATTERS.

    (a) In General.--Section 2241 of title 28, United States Code, is 
amended by striking both the subsection (e) added by section 1005(e)(1) 
of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by 
added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and 
inserting the following new subsection (e):
    ``(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 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 who is or was detained by the United States 
and 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 amendment 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. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING TO 
              PROTECTION OF CERTAIN UNITED STATES GOVERNMENT PERSONNEL.

    (a) Counsel and Investigations.--Section 1004(b) of the Detainee 
Treatment Act of 2005 (42 U.S.C. 2000dd-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) Protection of Personnel.--Section 1004 of the Detainee 
Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to 
any criminal prosecution that--
        (1) relates to the detention and interrogation of aliens 
    described in such section;
        (2) is grounded in section 2441(c)(3) of title 18, United 
    States Code; and
        (3) relates to actions occurring between September 11, 2001, 
    and December 30, 2005.

SEC. 9. REVIEW OF JUDGMENTS OF MILITARY COMMISSIONS.

    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--
        (1) 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'';
        (2) by striking subparagraph (B) and inserting the following 
    new subparagraph (B):
            ``(B) Grant of review.--Review under this paragraph shall 
        be as of right.'';
        (3) in subparagraph (C)--
            (A) 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
            (B) in clause (ii), by striking ``pursuant to such military 
        order'' and inserting ``by the military commission''; and
        (4) in subparagraph (D)(i), by striking ``specified in the 
    military order'' and inserting ``specified for a military 
    commission''.

SEC. 10. 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''.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.
```