sioner in, the Congress) or Member-of-
Congress elect;
‘‘(III) a justice or judge of the United
States;
‘‘(IV) a chief of state or head of gov-
ernment (or the political equivalent) of a
foreign nation; or
‘‘(V) a foreign official (as such term is
defined in section 1116(b)(3)(A) of title
18), if the official was in the United States
or on military property of the United
States on official business at the time of
the offense.
‘‘(vii) The accused at the time of the of-
fense knew that the victim was any of the fol-
lowing in the execution of such person’s office:
‘‘(I) A commissioned, warrant, non-
commissioned, or petty officer of the
armed forces.
‘‘(II) A member of a law enforcement
or security activity or agency, including
correctional custody personnel.
‘‘(III) A firefighter.
‘‘(viii) The offense was committed with in-
tent to obstruct justice.
‘‘(ix) The offense was preceded by the in-
tentional infliction of substantial physical harm
or prolonged, substantial mental or physical
pain and suffering to the victim.
‘‘(x) The accused has been found guilty in
the same case of another offense under section
918 of this title (article 118).
‘‘(H) That, only in the case of an offense under
section 918(4) of this title (article 118(4)), the ac-
cused was the actual perpetrator of the killing.
‘‘(I) That, only in the case of an offense under
section 920 of this title (article 120)—
‘‘(i) the victim was under the age of 12; or
‘‘(ii) the accused maimed or attempted to
kill the victim.
‘‘(J) That, only in the case of an offense under
the law of war, a sentence of death is authorized
under the law of war for the offense.
‘‘(K) That, only in the case of an offense under
section 904 or 906a the accused has previously been
convicted of this title (article 104 or 106a), of an-
other offense involving espionage or treason for
which either a sentence of death or a sentence of life
imprisonment was authorized by statute.
‘‘(L) That the offense involved such other fac-
tors as may be prescribed by the President by regu-
lation, to the extent that such factors concern the
national security or otherwise involve a function of
the armed forces related to the conduct of hostilities.
‘‘(2) In this subsection, ‘national security’ means the
national defense and foreign relations of the United States
and specifically includes—
‘‘(A) a military or defense advantage over any
foreign nation or group of nations;
‘‘(B) a favorable foreign relations position; or
‘‘(C) a defense posture capable of successfully
resisting hostile or destructive action from within or
without.
‘‘(f) The military judge, in the presence of the ac-
cused and counsel, shall instruct the members of the
court-martial on—
‘‘(1) such aggravating factors set forth in sub-
section (e) as may be in issue in the case;
‘‘(2) the requirements and procedures under
this section; and
‘‘(3) the requirement to consider all evidence in
extenuation and mitigation before they may adjudge
a sentence of death.
‘‘(g)(1) In closed session, before voting on a sen-
tence—
‘‘(A) the members of the court-martial shall
vote by secret written ballot separately on each ag-
gravating factor set out in subsection (e) on which
they have been instructed; and
‘‘(B) if one or more of the aggravating factors
set forth in subsection (e) is found to exist, the
members shall then vote by secret written ballot on
whether the aggravating circumstances (including
any aggravating factors set out in subsection (e))
substantially outweigh any extenuating or mitigating
circumstances or, in the absence of any extenuating
or mitigating circumstances, whether the aggravat-
ing circumstances are themselves sufficient to justify
a sentence of death.
‘‘(2) A sentence of death may not be adjudged unless
each member of the court-martial concurs—
‘‘(A) that, with respect to at least one aggravat-
ing factor, the existence of such factor has been
proved beyond a reasonable doubt; and
‘‘(B) that the aggravating circumstances (in-
cluding any aggravating factors set out in subsection
(e)) substantially outweigh any extenuating or miti-
gating circumstances or, in the absence of any ex-
tenuating or mitigating circumstances, that the ag-
gravating circumstances are themselves sufficient to
justify a sentence of death.
‘‘(3) The members of the court-martial shall vote on
a sentence under section 852 of this title (article 52).
‘‘(h) If a sentence of death is adjudged, the president
of the court-martial shall announce which aggravating fac-
tors under subsection (e) were unanimously found by the
members.
‘‘(i) Subsections (c) through (h) do not apply with
respect to the sentence for an offense under section 106
of this title (article 106).’’.
(B) The table of sections at the beginning of sub-
chapter VII of such chapter is amended by inserting after
the item relating to section 852 (article 52) the following
new item:
‘‘852a. Art. 52a. Procedures for adjudging capital punishment.’’.
(2) Section 852(b)(1) of such title (article 52(b)(1))
is amended by inserting ‘‘as provided in section 852a of
this title (article 52a)’’ after ‘‘taken’’.
(b) EFFECTIVE DATE.—The amendments made by
subsection (a) shall take effect on the 90th day after the
date of the enactment of this Act and shall apply to
charges first preferred on or after that date.
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