I 
109TH CONGRESS 
2D SESSION 
H. R. 6166 
To amend title 10, United States Code, to authorize trial by military 
commission for violations of the law of war, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
SEPTEMBER 25, 2006 
Mr. HUNTER (for himself and Mr. SENSENBRENNER) introduced the following 
bill; which was referred to the Committee on Armed Services, and in ad-
dition to the Committees on the Judiciary and International Relations, 
for a period to be subsequently determined by the Speaker, in each case 
for consideration of such provisions as fall within the jurisdiction of the 
committee concerned 
A BILL 
To amend title 10, United States Code, 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 Representa-
tives 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. 
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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 es-
tablish military commissions for areas declared to be 
under martial law or in occupied territories should cir-
cumstances 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
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‘‘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. 
‘‘§ 948a. Definitions 
‘‘In this chapter: 
‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The 
term ‘unlawful enemy combatant’ means— 
‘‘(i) a person who has engaged in hos-
tilities 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 Commis-
sions 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 
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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 belong-
ing 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 en-
gaged 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 Govern-
ment pursuant to statute, Executive order, or 
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regulation to require protection against unau-
thorized disclosure for reasons of national secu-
rity. 
‘‘(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 ‘Gene-
va Conventions’ means the international conventions 
signed at Geneva on August 12, 1949. 
‘‘§ 948b. Military commissions generally 
‘‘(a) PURPOSE.—This chapter establishes procedures 
governing the use of military commissions to try alien un-
lawful 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 of-
fenses triable by military commission as provided in this 
chapter. 
‘‘(c) CONSTRUCTION
OF PROVISIONS.—The proce-
dures 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 
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its terms, apply to trial by military commission except as 
specifically provided in this chapter. The judicial construc-
tion 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 inves-
tigation. 
‘‘(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 prece-
dents 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 
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of this title. The findings, holdings, interpretations, and 
other precedents of military commissions under this chap-
ter 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 AR-
TICLE 3.—A military commission established under this 
chapter is a regularly constituted court, affording all the 
necessary ‘judicial guarantees which are recognized as in-
dispensable 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 combat-
ant subject to trial by military commission under this 
chapter may invoke the Geneva Conventions as a source 
of rights. 
‘‘§ 948c. Persons subject to military commissions 
‘‘Any alien unlawful enemy combatant is subject to 
trial by military commission under this chapter. 
‘‘§ 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 com-
mitted by an alien unlawful enemy combatant before, on, 
or after September 11, 2001. 
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‘‘(b) LAWFUL ENEMY COMBATANTS.—Military com-
missions 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 COM-
BATANT STATUS DISPOSITIVE.—A finding, whether be-
fore, 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 disposi-
tive for purposes of jurisdiction for trial by military com-
mission 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. 
‘‘§ 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 Sen-
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ate and the House of Representatives a report on any 
trials conducted by military commissions under this chap-
ter during such year. 
‘‘(b) FORM.—Each report under this section shall be 
submitted in unclassified form, but may include a classi-
fied 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 mem-
bers. 
‘‘§ 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. 
‘‘§ 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 mili-
tary commission under this chapter. 
‘‘(b) DETAIL OF MEMBERS.—When convening a mili-
tary commission under this chapter, the convening author-
ity shall detail as members of the commission such mem-
bers of the armed forces eligible under subsection (a), as 
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in the opinion of the convening authority, are best quali-
fied 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 com-
mission under this chapter is assembled for the trial of 
a case, the convening authority may excuse a member 
from participating in the case. 
‘‘§ 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 regula-
tions 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 
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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; INELIGI-
BILITY 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 
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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. 
‘‘§ 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 asso-
ciate defense counsel may be detailed for a military com-
mission under this chapter. 
‘‘(3) Military defense counsel for a military commis-
sion under this chapter shall be detailed as soon as prac-
ticable after the swearing of charges against the accused. 
‘‘(4) The Secretary of Defense shall prescribe regula-
tions providing for the manner in which trial counsel and 
military defense counsel are detailed for military commis-
sions under this chapter and for the persons who are au-
thorized 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— 
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‘‘(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 be-
fore the military commission pursuant to regu-
lations prescribed by the Secretary of Defense. 
‘‘(c) MILITARY DEFENSE COUNSEL.—Subject to sub-
section (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. 
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‘‘(d) CHIEF PROSECUTOR; CHIEF DEFENSE COUN-
SEL.—(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 com-
mission 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 de-
fense 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 de-
fense, 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. 
‘‘§ 948l. Detail or employment of reporters and inter-
preters 
‘‘(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 pro-
ceedings of and testimony taken before the commission. 
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‘‘(b) INTERPRETERS.—Under such regulations as the 
Secretary of Defense may prescribe, the convening author-
ity 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. 
‘‘§ 948m. Number of members; excuse of members; ab-
sent and additional members 
‘‘(a) NUMBER OF MEMBERS.—(1) A military com-
mission 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 pen-
alty of death, the military commission shall have the num-
ber of members prescribed by section 949m(c) of this title. 
‘‘(b) EXCUSE OF MEMBERS.—No member of a mili-
tary commission under this chapter may be absent or ex-
cused after the military commission has been assembled 
for the trial of a case unless excused— 
‘‘(1) as a result of challenge; 
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‘‘(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.—When-
ever 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 mem-
bers present after the recorded evidence previously intro-
duced before the members has been read to the military 
commission in the presence of the military judge, the ac-
cused (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 ob-
tained by torture and other statements. 
‘‘948s. Service of charges. 
‘‘§ 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— 
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‘‘(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 sub-
section (a), the accused shall be informed of the charges 
against him as soon as practicable. 
‘‘§ 948r. Compulsory self-incrimination prohibited; 
treatment of statements obtained by tor-
ture and other statements 
‘‘(a) IN GENERAL.—No person shall be required to 
testify against himself at a proceeding of a military com-
mission 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 evi-
dence 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 enact-
ment of the Defense Treatment Act of 2005) in which the 
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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 pro-
bative 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 pro-
bative value; 
‘‘(2) the interests of justice would best be 
served by admission of the statement into evidence; 
and 
‘‘(3) the interrogation methods used to obtain 
the statement do not violate the cruel, unusual, or 
inhumane treatment or punishment prohibited by 
the Fifth, Eighth, and Fourteenth Amendments to 
the Constitution of the United States. 
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‘‘§ 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 de-
fense. 
‘‘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. 
‘‘§ 949a. Rules 
‘‘(a) PROCEDURES AND RULES OF EVIDENCE.—Pre-
trial, trial, and post-trial procedures, including elements 
and modes of proof, for cases triable by military commis-
sion 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 ac-
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tivities, apply the principles of law and the rules of evi-
dence in trial by general courts-martial. Such procedures 
and rules of evidence may not be contrary to or incon-
sistent with this chapter. 
‘‘(b) RULES FOR MILITARY COMMISSION.—(1) Not-
withstanding 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 in-
clude the following: 
‘‘(A) The accused shall be permitted to present 
evidence in his defense, to cross-examine the wit-
nesses who testify against him, and to 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 ses-
sions 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 rep-
resent himself, as provided for by paragraph (3). 
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‘‘(2) In establishing procedures and rules of evidence 
for military commission proceedings, the Secretary of De-
fense may prescribe the following provisions: 
‘‘(A) Evidence shall be admissible if the mili-
tary 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 evi-
dence was not seized pursuant to a search warrant 
or other authorization. 
‘‘(C) A statement of the accused that is other-
wise admissible shall not be excluded from trial by 
military commission on grounds of alleged coercion 
or compulsory self-incrimination so long as the evi-
dence 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 com-
mission 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 mem-
bers that they may consider any issue as to au-
thentication or identification of evidence in de-
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termining the weight, if any, to be given to the 
evidence. 
‘‘(E)(i) Except as provided in clause (ii), hear-
say 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 evi-
dence (including information on the general cir-
cumstances under which the evidence was obtained). 
The disclosure of evidence under the preceding sen-
tence 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. 
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‘‘(F) The military judge shall exclude any evi-
dence the probative value of which is substantially 
outweighed— 
‘‘(i) by the danger of unfair prejudice, con-
fusion of the issues, or misleading the commis-
sion; or 
‘‘(ii) by considerations of undue delay, 
waste of time, or needless presentation of cu-
mulative 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, proce-
dure, and decorum applicable to trials by military commis-
sion. 
‘‘(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 nec-
essary for the defense. 
‘‘(c) DELEGATION
OF AUTHORITY
TO PRESCRIBE 
REGULATIONS.—The Secretary of Defense may delegate 
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the authority of the Secretary to prescribe regulations 
under this chapter. 
‘‘(d) NOTIFICATION
TO CONGRESSIONAL COMMIT-
TEES 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 modifica-
tion. 
‘‘§ 949b. Unlawfully influencing action of military 
commission 
‘‘(a) IN GENERAL.—(1) No authority convening a 
military commission under this chapter may censure, rep-
rimand, or admonish the military commission, or any 
member, military judge, or counsel thereof, with respect 
to the findings or sentence adjudged by the military com-
mission, 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 un-
authorized 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; 
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‘‘(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 re-
spect to— 
‘‘(A) general instructional or informational 
courses in military justice if such courses are de-
signed solely for the purpose of instructing members 
of a command in the substantive and procedural as-
pects 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— 
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‘‘(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. 
‘‘§ 949c. Duties of trial counsel and defense counsel 
‘‘(a) TRIAL COUNSEL.—The trial counsel of a mili-
tary 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; 
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‘‘(C) has not been the subject of any sanction 
of disciplinary action by any court, bar, or other 
competent governmental authority for relevant mis-
conduct; 
‘‘(D) has been determined to be eligible for ac-
cess 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 classi-
fied information received during the course of representa-
tion 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, 
military counsel detailed shall act as associate counsel. 
‘‘(6) The accused is not entitled to be represented by 
more than one military counsel. However, the person au-
thorized under regulations prescribed under section 948k 
of this title to detail counsel, in that person’s sole discre-
tion, may detail additional military counsel to represent 
the accused. 
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‘‘(7) Defense counsel may cross-examine each witness 
for the prosecution who testifies before a military commis-
sion under this chapter. 
‘‘§ 949d. Sessions 
‘‘(a) SESSIONS
WITHOUT
PRESENCE
OF
MEM-
BERS.—(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 com-
mission 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 deter-
mination 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 
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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 ac-
cused, 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 pro-
ceedings of a military commission under this chapter, in-
cluding 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 
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upon making a specific finding that such closure is nec-
essary to— 
‘‘(A) protect information the disclosure of which 
could reasonably be expected to cause damage to the 
national security, including intelligence or law en-
forcement 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 PRO-
CEEDINGS.—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 court-
room— 
‘‘(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 privi-
leged from disclosure if disclosure would be detri-
mental to the national security. The rule in the pre-
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ceding sentence applies to all stages of the pro-
ceedings 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 con-
cerned based on a finding by the head of that de-
partment 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 re-
ferred to in subparagraph (A) may authorize a rep-
resentative, witness, or trial counsel to claim the 
privilege and make the finding described in subpara-
graph (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 con-
trary. 
‘‘(2) INTRODUCTION OF CLASSIFIED INFORMA-
TION.— 
‘‘(A) ALTERNATIVES TO DISCLOSURE.—To 
protect classified information from disclosure, 
the military judge, upon motion of trial counsel, 
shall authorize, to the extent practicable— 
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‘‘(i) the deletion of specified items of 
classified information from documents to 
be introduced as evidence before the mili-
tary commission; 
‘‘(ii) the substitution of a portion or 
summary of the information for such clas-
sified documents; or 
‘‘(iii) the substitution of a statement 
of relevant facts that the classified infor-
mation would tend to prove. 
‘‘(B) PROTECTION OF SOURCES, METHODS, 
OR ACTIVITIES.—The military judge, upon mo-
tion of trial counsel, shall permit trial counsel 
to introduce otherwise admissible evidence be-
fore the military commission, while protecting 
from disclosure the sources, methods, or activi-
ties 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 classi-
fied, and (ii) the evidence is reliable. The mili-
tary judge may require trial counsel to present 
to the military commission and the defense, to 
the extent practicable and consistent with na-
tional security, an unclassified summary of the 
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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 evi-
dence that would require the disclosure of clas-
sified information. Following such an objection, 
the military judge shall take suitable action to 
safeguard such classified information. Such ac-
tion may include the review of trial counsel’s 
claim of privilege by the military judge in cam-
era 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 RE-
LATED 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 Sec-
retary of Defense may prescribe additional regula-
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tions, consistent with this subsection, for the use 
and protection of classified information during pro-
ceedings of military commissions under this chapter. 
A report on any regulations so prescribed, or modi-
fied, shall be submitted to the Committees on Armed 
Services of the Senate and the House of Representa-
tives not later than 60 days before the date on which 
such regulations or modifications, as the case may 
be, go into effect. 
‘‘§ 949e. Continuances 
‘‘The military judge in a military commission under 
this chapter may, for reasonable cause, grant a continu-
ance to any party for such time, and as often, as may 
appear to be just. 
‘‘§ 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 coun-
sel shall ordinarily be presented and decided before those 
by the accused are offered. 
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‘‘(b) PEREMPTORY
CHALLENGES.—Each accused 
and the trial counsel are entitled to one peremptory chal-
lenge. The military judge may not be challenged except 
for cause. 
‘‘(c) CHALLENGES
AGAINST
ADDITIONAL
MEM-
BERS.—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. 
‘‘§ 949g. Oaths 
‘‘(a) IN GENERAL.—(1) Before performing their re-
spective duties in a military commission under this chap-
ter, military judges, members, trial counsel, defense coun-
sel, reporters, and interpreters shall take an oath to per-
form 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— 
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‘‘(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. 
‘‘§ 949h. Former jeopardy 
‘‘(a) IN GENERAL.—No person may, without his con-
sent, 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. 
‘‘§ 949i. Pleas of the accused 
‘‘(a) ENTRY OF PLEA OF NOT GUILTY.—If an ac-
cused 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 
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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 mili-
tary 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 com-
mission 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. 
‘‘§ 949j. Opportunity to obtain witnesses and other 
evidence 
‘‘(a) RIGHT OF DEFENSE COUNSEL.—Defense coun-
sel in a military commission under this chapter shall have 
a reasonable opportunity to obtain witnesses and other evi-
dence as provided in regulations prescribed by the Sec-
retary of Defense. 
‘‘(b) PROCESS FOR COMPULSION.—Process issued in 
a military commission under this chapter to compel wit-
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nesses 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 law-
fully 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 coun-
sel 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 
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which the United States acquired such evidence are classi-
fied. The military judge may require trial counsel to pro-
vide, 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 rea-
sonably 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 re-
quired to disclose in a trial by general court-martial under 
chapter 47 of this title. 
‘‘§ 949k. Defense of lack of mental responsibility 
‘‘(a) AFFIRMATIVE DEFENSE.—It is an affirmative 
defense in a trial by military commission under this chap-
ter that, at the time of the commission of the acts consti-
tuting the offense, the accused, as a result of a severe 
mental disease or defect, was unable to appreciate the na-
ture and quality or the wrongfulness of the acts. Mental 
disease or defect does not otherwise constitute a defense. 
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‘‘(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 DE-
FENSE.—Whenever lack of mental responsibility of the ac-
cused 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 sec-
tion and shall charge them to find the accused— 
‘‘(1) guilty; 
‘‘(2) not guilty; or 
‘‘(3) subject to subsection (d), not guilty by rea-
son 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 re-
sponsibility has been established. 
‘‘§ 949l. Voting and rulings 
‘‘(a) VOTE BY SECRET WRITTEN BALLOT.—Voting 
by members of a military commission under this chapter 
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on the findings and on the sentence shall be by secret writ-
ten ballot. 
‘‘(b) RULINGS.—(1) The military judge in a military 
commission under this chapter shall rule upon all ques-
tions 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; 
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‘‘(3) that, if there is reasonable doubt as to the 
degree of guilt, the finding must be in a lower de-
gree 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. 
‘‘§ 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 author-
ized under this chapter or the law of war for an of-
fense 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 
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‘‘(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 imprison-
ment, or to confinement for more than 10 years, by a mili-
tary commission under this chapter except by the concur-
rence 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 PEN-
ALTY 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 phys-
ical conditions or military exigencies, the convening au-
thority 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 speci-
fied. In such a case, the convening authority shall make 
a detailed written statement, to be appended to the record, 
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