I 

108TH CONGRESS 

2D SESSION H. R. 5222

To amend chapter 47 of title 10, United States Code (the Uniform Code 

of Military Justice), to provide standards for the use of military commissions for the trial of offenses under the law of war or in furtherance 

of international terrorism. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 5, 2004

Ms. LORETTA SANCHEZ of California introduced the following bill; which was 

referred to the Committee on Armed Services 

A BILL

To amend chapter 47 of title 10, United States Code (the 

Uniform Code of Military Justice), to provide standards 

for the use of military commissions for the trial of offenses under the law of war or in furtherance of international terrorism.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

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

5 Act of 2004’’. 
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1 SEC. 2. USE OF MILITARY COMMISSIONS FOR OFFENSES 

2 UNDER LAW OF WAR OR IN FURTHERANCE 

3 OF TERRORISM. 

4 (a) IN GENERAL.—Subchapter XI of chapter 47 of 

5 title 10, United States Code (the Uniform Code of Military 

6 Justice), is amended by inserting after section 935 (article 

7 135) the following new section: 

8 ‘‘§ 935a. Art. 135a. Military commissions for offenses 

9 against the law of war or in furtherance 

10 of terrorism 

11 ‘‘(a) A military commission covered by this section 

12 may be appointed only by the President or a person des13 ignated by the President for such purpose. 

14 ‘‘(b) A military commission appointed under sub15 section (a) may try any person, not a citizen of the United 

16 States, for one or more offenses against the law of war 

17 or in furtherance of terrorism. 

18 ‘‘(c) A military commission shall consist of not less 

19 than three members and not more than seven members. 

20 However, in a case in which the accused may be sentenced 

21 to a penalty of death, the commission shall consist of seven 

22 members. The commission may also include not more than 

23 two alternate members. Each member and alternate mem24 ber shall be a commissioned officer of the armed forces. 

25 ‘‘(d) A military commission shall have a presiding of26 ficer, who shall be appointed from among the members. 
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1 The presiding officer shall be a judge advocate and shall 

2 preside over the proceedings of the commission to ensure 

3 a full, fair, and expeditious trial. The presiding officer 

4 shall rule upon all questions of law and all interlocutory 

5 questions arising during the proceedings. A majority of 

6 the members may overrule the presiding officer on any rul7 ing that excludes evidence on the merits. 

8 ‘‘(e) Trial and defense counsel shall be detailed for 

9 a military commission on the same basis as such counsel 

10 are detailed for a general court-martial under section 827 

11 (article 27). 

12 ‘‘(f) Members of a military commission shall delib13 erate and vote in closed conference. Voting on the findings 

14 and on the sentence shall be by secret written ballot. 

15 ‘‘(g) A military commission covered by this section 

16 may not find a person guilty of an offense, and may not 

17 determine a sentence, except by the concurrence of two18 thirds of the members present at the time the vote is 

19 taken. The commission may not sentence a person to suf20 fer death except by the concurrence of all the members 

21 as to the findings and as to the sentence. 

22 ‘‘(h) A military commission may, under such limita23 tions as the President may prescribe, adjudge any punish24 ment permitted by the law of war, including death, impris25 onment for life or for any lesser term, payment of a fine 
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1 or restitution, or such other lawful punishment or punish2 ments as the commission shall determine to be proper. The 

3 sentence of death may be adjudged only if the accused 

4 has been found guilty of spying or an offense causing the 

5 death of one or more persons. A commission may not sen6 tence any person to suffer death for an offense committed 

7 before the person attained the age of eighteen years. A 

8 sentence of death may not be executed until approved by 

9 the President. 

10 ‘‘(i) Pursuant to section 936 (Article 36) of the chap11 ter, the President may prescribe rules of evidence and pro12 cedure for trial by a military commission. The accused in 

13 a military commission shall be given the following min14 imum rights and protections: 

15 ‘‘(1) The accused shall have the right to a fair 

16 trial, without adverse distinction based upon race, 

17 color, gender, language, religion, birth, wealth, or 

18 any similar criteria. 

19 ‘‘(2) The accused shall be presumed innocent 

20 until proven guilty. The burden of proof shall be 

21 upon the prosecution to prove each element of an of22 fense beyond a reasonable doubt. 

23 ‘‘(3) The accused shall be informed of the 

24 charges against him in a language he understands 

25 as soon as practicable prior to trial. 
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1 ‘‘(4) The accused shall have the right to a pub2 lic trial, unless the appointing authority determines 

3 that a closed trial, or any portion thereof, is nec4 essary to the national security of the United States. 

5 ‘‘(5) The accused may not be compelled to tes6 tify or present evidence against himself. 

7 ‘‘(6) No adverse inference will be drawn against 

8 him by reason of a decision not to testify on his own 

9 behalf. 

10 ‘‘(7) Evidence obtained through the use of tor11 ture (as defined in section 2340 of title 18), will not 

12 be admitted in evidence at trial by a military com13 mission. 

14 ‘‘(8) The accused shall be entitled to assistance 

15 of counsel at all stages of proceedings and shall have 

16 adequate time and facilities available for the prepa17 ration of his defense. The accused shall have the 

18 right to represent himself in trail by military com19 mission, subject to the discretion of the presiding of20 ficer. 

21 ‘‘(9) The accused shall have the right to present 

22 evidence and to cross-examine each witness. 

23 ‘‘(10) The accused shall have equal opportunity 

24 to obtain witnesses and other evidence in accordance 
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1 with such regulations as the President may pre2 scribe. 

3 ‘‘(11) The accused shall have access to all evi4 dence that trial counsel intends to offer at trial and 

5 all evidence known to trial counsel or to the commis6 sion that tends to exculpate him. 

7 ‘‘(12) The accused shall have the right to be 

8 present at each stage of the proceedings, unless he 

9 engages in conduct that the presiding officer deter10 mines to be disruptive. 

11 ‘‘(13) The accused shall not be tried a second 

12 time for the same offense. 

13 ‘‘(j) A person found guilty by military commission 

14 shall have a right to review of that finding and any ad15 judged sentence in accordance with this section. 

16 ‘‘(k)(1) After trial, the presiding officer shall prompt17 ly authenticate a verbatim transcript and record of trial. 

18 ‘‘(2) The appointing authority shall, within a reason19 able period of time, carry out an administrative review of 

20 the transcript and record of trial and take such adminis21 trative actions as the authority considers appropriate, 

22 which may include directing the commission to conduct 

23 any necessary supplemental proceedings. 
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1 ‘‘(3) The Secretary of Defense shall review the record 

2 of trial and, within a reasonable period of time, take one 

3 or more of the following actions of the case: 

4 ‘‘(A) Approve, disapprove, commute, mitigate, 

5 or suspend the sentence in whole or in part. 

6 ‘‘(B) Approve or disapprove a finding of guilty, 

7 or change a finding of guilty to a charge or speci8 fication to a finding of guilty to a lesser included of9 fense of the offense stated in the charge. 

10 ‘‘(4)(A) Following action by the Secretary of Defense, 

11 the Court of Appeals for the Armed Forces shall review 

12 the record of a military commission—

13 ‘‘(i) in any case in which the sentence extends 

14 to death or to confinement in excess of five years; 

15 and 

16 ‘‘(ii) in any other case that the President may 

17 prescribe. 

18 ‘‘(B) In any case reviewed by it under this subsection, 

19 the Court of Appeals for the Armed Forces may act only 

20 with respect to the findings and sentence as in effect after 

21 review by the convening authority and the Secretary of 

22 Defense under subsection (k)(3). 

23 ‘‘(C) The Court of Appeals for the Armed Forces 

24 shall take action only with respect to matters of law and 
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1 shall take such action as is permitted under section 867 

2 (Article 67) of this chapter. 

3 ‘‘(5) The Supreme Court of the United States shall 

4 have jurisdiction to review, by writ of certiorari, an action 

5 of the Court of Appeals for the Armed Forces under this 

6 subsection. 

7 ‘‘(l) The Secretary of Defense shall submit to Con8 gress each order, rule, and regulation prescribed under 

9 this section. Such order, rule, or regulation may not take 

10 effect until 30 days after it is so submitted. 

11 ‘‘(m) Not later than March 15 of each year, the Sec12 retary of Defense shall submit to Congress a report on 

13 the use of military commissions covered by this section 

14 during the preceding calendar year. The report shall set 

15 forth a summary of each case covered by this section dur16 ing such year, together with the disposition and current 

17 status of that case. The report shall also set forth a de18 tailed description of the activities of the Department with 

19 respect to military commissions, a copy of all current rules 

20 and regulations relating to the use of military commis21 sions, and an accounting of all funds expended on matters 

22 relating to the use of military commissions.’’. 

23 (b) The table of sections at the beginning of such sub24 chapter is amended by adding at the end the following 

25 new item:
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‘‘935a. Art. 135a. Military commissions for offenses against the law of war or 

in furtherance of terrorism.’’.

Æ