472 
† HR 2647 EAS 
‘‘(i) the proponent of the evidence makes 
known to the adverse party, sufficiently in ad-
vance to provide the adverse party with a fair 
opportunity to meet the evidence, the proponent’s 
intention to offer the evidence, and the particu-
lars of the evidence (including information on 
the circumstances under which the evidence was 
obtained); and 
‘‘(ii) the military judge, after taking into 
account all of the circumstances surrounding the 
taking of the statement, the degree to which the 
statement is corroborated, and the indicia of reli-
ability within the statement itself, determines 
that— 
‘‘(I) the statement is offered as evidence 
of a material fact; 
‘‘(II) either— 
‘‘(aa) direct testimony from the 
witness is not available as a practical 
matter, taking into consideration the 
physical location of the witness and the 
unique circumstances of the conduct of 
military and intelligence operations 
during hostilities; or
473 
† HR 2647 EAS 
‘‘(bb) the production of the wit-
ness would have an adverse impact on 
military or intelligence operations; and 
‘‘(III) the general purposes of the rules 
of evidence and the interests of justice will 
best be served by admission of the statement 
into evidence. 
‘‘(4)(A) The accused in a military commission under 
this chapter who exercises the right to self-representation 
under paragraph (2)(D) shall conform his deportment and 
the conduct of the defense to the rules of evidence, procedure, 
and decorum applicable to trials by military commission. 
‘‘(B) Failure of the accused to conform to the rules de-
scribed in subparagraph (A) may result in a partial or 
total revocation by the military judge of the right of self- 
representation under paragraph (2)(D). In such case, the 
military counsel of the accused or an appropriately author-
ized civilian counsel shall perform the functions necessary 
for the defense. 
‘‘(c) DELEGATION OF AUTHORITY TO PRESCRIBE REG-
ULATIONS.—The Secretary of Defense may delegate the au-
thority of the Secretary to prescribe regulations under this 
chapter.
474 
† HR 2647 EAS 
‘‘§ 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 commis-
sion, or with respect to any other exercises of its or their 
functions in the conduct of the proceedings. 
‘‘(2) No person may attempt to coerce or, by any unau-
thorized means, influence— 
‘‘(A) the action of a military commission under 
this chapter, or any member thereof, in reaching the 
findings or sentence in any case; 
‘‘(B) the action of any convening, approving, or 
reviewing authority with respect to their judicial acts; 
or 
‘‘(C) the exercise of professional judgment by 
trial counsel or defense counsel. 
‘‘(3) The provisions of this subsection shall not apply 
with respect to— 
‘‘(A) general instructional or informational 
courses in military justice if such courses are designed 
solely for the purpose of instructing members of a 
command in the substantive and procedural aspects of 
military commissions; or
475 
† HR 2647 EAS 
‘‘(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 prepara-
tion 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 offi-
cer 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. 
‘‘§ 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.
476 
† HR 2647 EAS 
‘‘(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 may be represented by military coun-
sel detailed under section 948k of this title or by military 
counsel of the accused’s own selection, if reasonably avail-
able. 
‘‘(3) The accused may be represented by civilian coun-
sel if retained by the accused, provided that such civilian 
counsel— 
‘‘(A) is a United States citizen; 
‘‘(B) is admitted to the practice of law in a 
State, district, or possession of the United States, or 
before a Federal court; 
‘‘(C) has not been the subject of any sanction of 
disciplinary action by any court, bar, or other com-
petent governmental authority for relevant mis-
conduct; 
‘‘(D) has been determined to be eligible for access 
to information classified at the level Secret or higher; 
and 
‘‘(E) has signed a written agreement to comply 
with all applicable regulations or instructions for 
counsel, including any rules of court for conduct dur-
ing the proceedings.
477 
† HR 2647 EAS 
‘‘(4) If the accused is represented by civilian counsel, 
military counsel shall act as associate counsel. 
‘‘(5) 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 such person’s sole discretion, 
may detail additional military counsel to represent the ac-
cused. 
‘‘(6) Defense counsel may cross-examine each witness 
for the prosecution who testifies before a military commis-
sion under this chapter. 
‘‘(7) 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. 
‘‘§ 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 chap-
ter, the military judge may call the military commission 
into session without the presence of the members for the pur-
pose of—
479 
† HR 2647 EAS 
‘‘(c) CLOSURE OF PROCEEDINGS.—(1) The military 
judge may close to the public all or part of the proceedings 
of a military commission under this chapter. 
‘‘(2) The military judge may close to the public all 
or a portion of the proceedings under paragraph (1) only 
upon making a specific finding that such closure is 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. 
‘‘(d) 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.
480 
† HR 2647 EAS 
‘‘§ 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. 
‘‘§ 949f. Challenges 
‘‘(a) CHALLENGES AUTHORIZED.—The military judge 
and members of a military commission under this chapter 
may be challenged by the accused or trial counsel for cause 
stated to the military commission. The military judge shall 
determine the relevance and validity of challenges for cause, 
and may not receive a challenge to more than one person 
at a time. Challenges by trial counsel shall ordinarily be 
presented and decided before those by the accused are of-
fered. 
‘‘(b) PEREMPTORY CHALLENGES.—The accused and 
trial counsel are each entitled to one peremptory challenge, 
but the military judge may not be challenged except for 
cause. 
‘‘(c) CHALLENGES AGAINST ADDITIONAL MEMBERS.— 
Whenever additional members are detailed to a military 
commission under this chapter, and after any challenges for 
cause against such additional members are presented and 
decided, the accused and trial counsel are each entitled to 
one peremptory challenge against members not previously 
subject to peremptory challenge.
481 
† HR 2647 EAS 
‘‘§ 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 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 re-
cording thereof, and whether the oath shall be taken for all 
cases in which duties are to be performed or for a particular 
case, shall be as provided in regulations prescribed by the 
Secretary of Defense. The regulations may provide that— 
‘‘(A) an oath to perform faithfully duties as a 
military judge, trial counsel, or defense counsel may 
be taken at any time by any judge advocate or other 
person certified to be qualified or competent for the 
duty; and 
‘‘(B) if such an oath is taken, such oath need not 
again be taken at the time the judge advocate or other 
person is detailed to that duty. 
‘‘(b) WITNESSES.—Each witness before a military 
commission under this chapter shall be examined on oath. 
‘‘(c) OATH DEFINED.—In this section, the term ‘oath’ 
includes an affirmation.
482 
† HR 2647 EAS 
‘‘§ 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 com-
pleted. 
‘‘§ 949i. Pleas of the accused 
‘‘(a) PLEA OF NOT GUILTY.—If an accused in a mili-
tary 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 commis-
sion 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 con-
stitute the finding of the military commission unless the
483 
† HR 2647 EAS 
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 evi-
dence 
‘‘(a) IN GENERAL.—(1) Defense counsel in a military 
commission under this chapter shall have a reasonable op-
portunity to obtain witnesses and other evidence as pro-
vided in regulations prescribed by the Secretary of Defense. 
‘‘(2) Process issued in military commissions under this 
chapter to compel witnesses to appear and testify and to 
compel the production of other evidence— 
‘‘(A) shall be similar to that which courts of the 
United States having criminal jurisdiction may law-
fully issue; and 
‘‘(B) shall run to any place where the United 
States shall have jurisdiction thereof. 
‘‘(b) DISCLOSURE OF EXCULPATORY EVIDENCE.—(1) 
As soon as practicable, trial counsel in a military commis-
sion under this chapter shall disclose to the defense the exist-
ence of any evidence that reasonably tends to— 
‘‘(A) negate the guilt of the accused of an offense 
charged; or 
‘‘(B) reduce the degree of guilt of the accused 
with respect to an offense charged.
484 
† HR 2647 EAS 
‘‘(2) The trial counsel shall, as soon as practicable, dis-
close to the defense the existence of evidence that reasonably 
tends to impeach the credibility of a witness whom the gov-
ernment intends to call at trial. 
‘‘(3) The trial counsel shall, as soon as practicable 
upon a finding of guilt, disclose to the defense the existence 
of evidence that is not subject to paragraph (1) or para-
graph (2) but that reasonably may be viewed as mitigation 
evidence at sentencing. 
‘‘(4) The disclosure obligations under this subsection 
encompass evidence that is known or reasonably should be 
known to any government officials who participated in the 
investigation and prosecution of the case against the defend-
ant. 
‘‘§ 949k. Defense of lack of mental responsibility 
‘‘(a) AFFIRMATIVE DEFENSE.—It is an affirmative de-
fense 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
485 
† HR 2647 EAS 
the defense of lack of mental responsibility by clear and con-
vincing 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 as to the defense of lack of mental 
responsibility under this section and shall charge the mem-
bers 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 responsibility has been 
established. 
‘‘§ 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.
486 
† HR 2647 EAS 
‘‘(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 inter-
locutory 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 con-
clusive and constitutes the ruling of the military commis-
sion. 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 ac-
cused 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 in-
nocent until his guilt is established by legal and com-
petent 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
487 
† HR 2647 EAS 
‘‘(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, ex-
cept as provided in section 949i(b) of this title or by concur-
rence of two-thirds of the members present at the time the 
vote is taken. 
‘‘(b) SENTENCES.—(1) Except as provided in para-
graphs (2) and (3), sentences shall be determined by a mili-
tary commission by the concurrence of two-thirds of the 
members present at the time the vote is taken. 
‘‘(2) No person may be sentenced to death by a mili-
tary commission, except insofar as— 
‘‘(A) the penalty of death has been expressly au-
thorized under this chapter, chapter 47 of this title, 
or the law of war for an offense of which the accused 
has been found guilty; 
‘‘(B) trial counsel expressly sought the penalty of 
death by filing an appropriate notice in advance of 
trial; 
‘‘(C) the accused was convicted of the offense by 
the concurrence of all the members present at the time 
the vote is taken; and
488 
† HR 2647 EAS 
‘‘(D) all members present at the time the vote 
was taken concurred in the sentence of death. 
‘‘(3) No person may be sentenced to life imprisonment, 
or to confinement for more than 10 years, by a military 
commission under this chapter except by the concurrence 
of three-fourths of the members present at the time the vote 
is taken. 
‘‘(c) NUMBER OF MEMBERS REQUIRED FOR PENALTY 
OF DEATH.—(1) Except as provided in paragraph (2), in 
a case in which the penalty of death is sought, the number 
of members of the military commission under this chapter 
shall be not less than 12 members. 
‘‘(2) In any case described in paragraph (1) in which 
12 members are not reasonably available for a military 
commission because of physical conditions or military ex-
igencies, the convening authority shall specify a lesser num-
ber of members for the military commission (but not fewer 
than 5 members), and the military commission may be as-
sembled, and the trial held, with not less than the number 
of members so specified. In any such case, the convening 
authority shall make a detailed written statement, to be ap-
pended to the record, stating why a greater number of mem-
bers were not reasonably available.
489 
† HR 2647 EAS 
‘‘§ 949n. Military commission to announce action 
‘‘A military commission under this chapter shall an-
nounce its findings and sentence to the parties as soon as 
determined. 
‘‘§ 949o. Record of trial 
‘‘(a) RECORD; AUTHENTICATION.—Each military 
commission under this chapter shall keep a separate, ver-
batim, record of the proceedings in each case brought before 
it, and the record shall be authenticated by the signature 
of the military judge. If the record cannot be authenticated 
by the military judge by reason of his death, disability, or 
absence, it shall be authenticated by the signature of the 
trial counsel or by a member if the trial counsel is unable 
to authenticate it by reason of his death, disability, or ab-
sence. Where appropriate, and as provided in regulations 
prescribed by the Secretary of Defense, the record of a mili-
tary commission under this chapter may contain a classi-
fied 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 au-
thenticated. If the record contains classified information, or 
a classified annex, the accused shall receive a redacted
490 
† HR 2647 EAS 
version of the record consistent with the requirements of sec-
tion 949d(c)(4) of this title. Defense counsel shall have ac-
cess to the unredacted record, as provided in regulations 
prescribed by the Secretary of Defense. 
‘‘SUBCHAPTER V—CLASSIFIED INFORMATION 
PROCEDURES 
‘‘Sec. 
‘‘949p–1. Protection of classified information: applicability of subchapter. 
‘‘949p–2. Pretrial conference. 
‘‘949p–3. Protective orders. 
‘‘949p–4. Discovery of, and access to, classified information by the accused. 
‘‘949p–5. Notice by accused of intention to disclose classified information. 
‘‘949p–6. Procedure for cases involving classified information. 
‘‘949p–7. Introduction of classified information into evidence. 
‘‘§ 949p–1. Protection of classified information: appli-
cability of subchapter 
‘‘(a) PROTECTION
OF CLASSIFIED INFORMATION.— 
Classified information shall be protected and is privileged 
from disclosure if disclosure would be detrimental to the na-
tional security. Under no circumstances may a military 
judge order the release of classified information to any per-
son not authorized to receive such information. 
‘‘(b) ACCESS TO EVIDENCE.—Any information admit-
ted into evidence pursuant to any rule, procedure, or order 
by the military judge shall be provided to the accused. 
‘‘(c) DECLASSIFICATION.—Trial counsel shall work 
with the original classification authorities for evidence that 
may be used at trial to ensure that such evidence is declas-
sified to the maximum extent possible, consistent with the
491 
† HR 2647 EAS 
requirements of national security. A decision not to declas-
sify evidence under this section shall not be subject to review 
by a military commission or upon appeal. 
‘‘(d) CONSTRUCTION
OF PROVISIONS.—The judicial 
construction of the Classified Information Procedures Act 
(18 U.S.C. App.) shall be authoritative in the interpretation 
of this subchapter, except to the extent that such construc-
tion is inconsistent with the specific requirements of this 
chapter. 
‘‘§ 949p–2. Pretrial conference 
‘‘(a) MOTION.—At any time after service of charges, 
any party may move for a pretrial conference to consider 
matters relating to classified information that may arise 
in connection with the prosecution. 
‘‘(b) CONFERENCE.—Following a motion under sub-
section (a), or sua sponte, the military judge shall promptly 
hold a pretrial conference. Upon request by either party, 
the court shall hold such conference ex parte to the extent 
necessary to protect classified information from disclosure, 
in accordance with the practice of the Federal courts under 
the Classified Information Procedures Act (18 U.S.C. App.). 
‘‘(c) MATTERS TO BE ESTABLISHED AT PRETRIAL 
CONFERENCE.—
492 
† HR 2647 EAS 
‘‘(1) TIMING OF SUBSEQUENT ACTIONS.—At the 
pretrial conference, the military judge shall establish 
the timing of— 
‘‘(A) requests for discovery; 
‘‘(B) the provision of notice required by sec-
tion 949p–5 of this title; and 
‘‘(C) the initiation of the procedure estab-
lished by section 949p–6 of this title. 
‘‘(2) OTHER
MATTERS.—At the pretrial con-
ference, the military judge may also consider any 
matter— 
‘‘(A) which relates to classified information; 
or 
‘‘(B) which may promote a fair and expedi-
tious trial. 
‘‘(d) EFFECT OF ADMISSIONS BY ACCUSED AT PRE-
TRIAL CONFERENCE.—No admission made by the accused 
or by any counsel for the accused at a pretrial conference 
under this section may be used against the accused unless 
the admission is in writing and is signed by the accused 
and by the counsel for the accused. 
‘‘§ 949p–3. Protective orders 
‘‘Upon motion of the trial counsel, the military judge 
shall issue an order to protect against the disclosure of any 
classified information that has been disclosed by the United
493 
† HR 2647 EAS 
States to any accused in any military commission under 
this chapter or that has otherwise been provided to, or ob-
tained by, any such accused in any such military commis-
sion. 
‘‘§ 949p–4. Discovery of, and access to, classified infor-
mation by the accused 
‘‘(a) LIMITATIONS ON DISCOVERY OR ACCESS BY THE 
ACCUSED.— 
‘‘(1) DECLARATIONS BY THE UNITED STATES OF 
DAMAGE TO NATIONAL SECURITY.—In any case before 
a military commission in which the United States 
seeks to delete, withhold, or otherwise obtain other re-
lief with respect to the discovery of or access to any 
classified information, the trial counsel shall submit 
a declaration invoking the United States’ classified 
information privilege and setting forth the damage to 
the national security that the discovery of or access to 
such information reasonably could be expected to 
cause. The declaration shall be signed by a knowledge-
able United States official possessing authority to 
classify information. 
‘‘(2) STANDARD
FOR
AUTHORIZATION
OF
DIS-
COVERY OR ACCESS.—Upon the submission of a dec-
laration under paragraph (1), the military judge 
shall not authorize the discovery of or access to such
494 
† HR 2647 EAS 
classified information unless the military judge deter-
mines that such classified information would be non-
cumulative, relevant, and helpful to a legally cog-
nizable defense, rebuttal of the prosecution’s case, or 
to sentencing, in accordance with standards generally 
applicable to discovery of or access to classified infor-
mation in Federal criminal cases. If the discovery of 
or access to such classified information is authorized, 
it shall be addressed in accordance with the require-
ments of subsection (b). 
‘‘(b) DISCOVERY OF CLASSIFIED INFORMATION.— 
‘‘(1) SUBSTITUTIONS AND OTHER RELIEF.—The 
military judge, in assessing the accused’s discovery of 
or access to classified information under this section, 
may authorize the United States— 
‘‘(A) to delete or withhold specified items of 
classified information; 
‘‘(B) to substitute a summary for classified 
information; or 
‘‘(C) to substitute a statement admitting 
relevant facts that the classified information or 
material would tend to prove. 
‘‘(2) EX PARTE PRESENTATIONS.—The military 
judge shall permit the trial counsel to make a request 
for an authorization under paragraph (1) in the form
495 
† HR 2647 EAS 
of an ex parte presentation to the extent necessary to 
protect classified information, in accordance with the 
practice of the Federal courts under the Classified In-
formation Procedures Act (18 U.S.C. App.). If the 
military judge enters an order granting relief fol-
lowing such an ex parte showing, the entire text of the 
written submission shall be sealed and preserved in 
the records of the military commission to be made 
available to the appellate court in the event of an ap-
peal. 
‘‘(3) ACTION BY MILITARY JUDGE.—The military 
judge shall grant the request of the trial counsel to 
substitute a summary or to substitute a statement ad-
mitting relevant facts, or to provide other relief in ac-
cordance with paragraph (1), if the military judge 
finds that the summary, statement, or other relief 
would provide the accused with substantially the same 
ability to make a defense as would discovery of or ac-
cess to the specific classified information. 
‘‘(c) RECONSIDERATION.—An order of a military judge 
authorizing a request of the trial counsel to substitute, sum-
marize, withhold, or prevent access to classified information 
under this section is not subject to a motion for reconsider-
ation by the accused, if such order was entered pursuant 
to an ex parte showing under this section.
496 
† HR 2647 EAS 
‘‘§ 949p–5. Notice by accused of intention to disclose 
classified information 
‘‘(a) NOTICE BY ACCUSED.— 
‘‘(1) NOTIFICATION
OF
TRIAL
COUNSEL
AND 
MILITARY JUDGE.—If an accused reasonably expects 
to disclose, or to cause the disclosure of, classified in-
formation in any manner in connection with any 
trial or pretrial proceeding involving the prosecution 
of such accused, the accused shall, within the time 
specified by the military judge or, where no time is 
specified, within 30 days before trial, notify the trial 
counsel and the military judge in writing. Such no-
tice shall include a brief description of the classified 
information. Whenever the accused learns of addi-
tional classified information the accused reasonably 
expects to disclose, or to cause the disclosure of, at 
any such proceeding, the accused shall notify trial 
counsel and the military judge in writing as soon as 
possible thereafter and shall include a brief descrip-
tion of the classified information. 
‘‘(2) LIMITATION
ON
DISCLOSURE
BY
AC-
CUSED.—No accused shall disclose, or cause the dis-
closure of, any information known or believed to be 
classified in connection with a trial or pretrial pro-
ceeding until—
497 
† HR 2647 EAS 
‘‘(A) notice has been given under paragraph 
(1); and 
‘‘(B) the United States has been afforded a 
reasonable opportunity to seek a determination 
pursuant to the procedure set forth in section 
949p–6 of this title and the time for the United 
States to appeal such determination under sec-
tion 950d of this title has expired or any appeal 
under that section by the United States is de-
cided. 
‘‘(b) FAILURE TO COMPLY.—If the accused fails to 
comply with the requirements of subsection (a), the military 
judge— 
‘‘(1) may preclude disclosure of any classified in-
formation not made the subject of notification; and 
‘‘(2) may prohibit the examination by the ac-
cused of any witness with respect to any such infor-
mation. 
‘‘§ 949p–6. Procedure for cases involving classified in-
formation 
‘‘(a) MOTION FOR HEARING.— 
‘‘(1) REQUEST FOR HEARING.—Within the time 
specified by the military judge for the filing of a mo-
tion under this section, either party may request the 
military judge to conduct a hearing to make all deter-
498 
† HR 2647 EAS 
minations concerning the use, relevance, or admissi-
bility of classified information that would otherwise 
be made during the trial or pretrial proceeding. 
‘‘(2) CONDUCT OF HEARING.—Upon a request by 
either party under paragraph (1), the military judge 
shall conduct such a hearing and shall rule prior to 
conducting any further proceedings. 
‘‘(3) IN CAMERA HEARING UPON DECLARATION 
TO COURT BY APPROPRIATE OFFICIAL OF RISK OF 
DISCLOSURE
OF
CLASSIFIED
INFORMATION.—Any 
hearing held pursuant to this subsection (or any por-
tion of such hearing specified in the request of a 
knowledgeable United States official) shall be held in 
camera if a knowledgeable United States official pos-
sessing authority to classify information submits to 
the military judge a declaration that a public pro-
ceeding may result in the disclosure of classified in-
formation. Classified information is not subject to 
disclosure under this section unless the information is 
relevant and necessary to an element of the offense or 
a legally cognizable defense and is otherwise admis-
sible in evidence. 
‘‘(4) MILITARY
JUDGE
TO
MAKE
DETERMINA-
TIONS IN WRITING.—As to each item of classified in-
499 
† HR 2647 EAS 
formation, the military judge shall set forth in writ-
ing the basis for the determination. 
‘‘(b) NOTICE AND USE OF CLASSIFIED INFORMATION 
BY THE GOVERNMENT.— 
‘‘(1) NOTICE TO ACCUSED.—Before any hearing 
is conducted pursuant to a request by the trial coun-
sel under subsection (a), trial counsel shall provide 
the accused with notice of the classified information 
that is at issue. Such notice shall identify the specific 
classified information at issue whenever that informa-
tion previously has been made available to the ac-
cused by the United States. When the United States 
has not previously made the information available to 
the accused in connection with the case the informa-
tion may be described by generic category, in such 
forms as the military judge may approve, rather than 
by identification of the specific information of con-
cern to the United States. 
‘‘(2) ORDER BY MILITARY JUDGE UPON REQUEST 
OF ACCUSED.—Whenever the trial counsel requests a 
hearing under subsection (a), the military judge, 
upon request of the accused, may order the trial coun-
sel to provide the accused, prior to trial, such details 
as to the portion of the charge or specification at
500 
† HR 2647 EAS 
issue in the hearing as are needed to give the accused 
fair notice to prepare for the hearing. 
‘‘(c) SUBSTITUTIONS.— 
‘‘(1) IN CAMERA PRETRIAL HEARING.—Upon re-
quest of the trial counsel pursuant to the Military 
Commission Rules of Evidence, and in accordance 
with the security procedures established by the mili-
tary judge, the military judge shall conduct a classi-
fied in camera pretrial hearing concerning the admis-
sibility of classified information. 
‘‘(2) PROTECTION OF SOURCES, METHODS, AND 
ACTIVITIES
BY
WHICH
EVIDENCE
ACQUIRED.—The 
military judge shall permit the trial counsel to intro-
duce otherwise admissible evidence, including a sub-
stituted evidentiary foundation pursuant to the proce-
dures described in subsection (d), before a 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 the sources, methods, or activities are clas-
sified, the evidence is reliable, and the redaction is 
consistent with affording the accused a fair trial. 
‘‘(d) ALTERNATIVE PROCEDURE FOR DISCLOSURE OF 
CLASSIFIED INFORMATION.—
501 
† HR 2647 EAS 
‘‘(1) MOTION BY THE UNITED STATES.—Upon 
any determination by the military judge authorizing 
the disclosure of specific classified information under 
the procedures established by this section, the trial 
counsel may move that, in lieu of the disclosure of 
such specific classified information, the military 
judge order— 
‘‘(A) the substitution for such classified in-
formation of a statement admitting relevant 
facts that the specific classified information 
would tend to prove; 
‘‘(B) the substitution for such classified in-
formation of a summary of the specific classified 
information; or 
‘‘(C) any other procedure or redaction lim-
iting the disclosure of specific classified informa-
tion. 
‘‘(2) ACTION ON MOTION.—The military judge 
shall grant such a motion of the trial counsel if the 
military judge finds that the statement, summary, or 
other procedure or redaction will provide the defend-
ant with substantially the same ability to make his 
defense as would disclosure of the specific classified 
information.
502 
† HR 2647 EAS 
‘‘(3) HEARING ON MOTION.—The military judge 
shall hold a hearing on any motion under this sub-
section. Any such hearing shall be held in camera at 
the request of a knowledgeable United States official 
possessing authority to classify information. 
‘‘(4) SUBMISSION OF STATEMENT OF DAMAGE TO 
NATIONAL SECURITY IF DISCLOSURE ORDERED.—The 
trial counsel may, in connection with a motion under 
paragraph (1), submit to the military judge a dec-
laration signed by a knowledgeable United States offi-
cial possessing authority to classify information certi-
fying that disclosure of classified information would 
cause identifiable damage to the national security of 
the United States and explaining the basis for the 
classification of such information. If so requested by 
the trial counsel, the military judge shall examine 
such declaration during an ex parte presentation. 
‘‘(e) SEALING OF RECORDS OF IN CAMERA HEAR-
INGS.—If at the close of an in camera hearing under this 
section (or any portion of a hearing under this section that 
is held in camera), the military judge determines that the 
classified information at issue may not be disclosed or elic-
ited at the trial or pretrial proceeding, the record of such 
in camera hearing shall be sealed and preserved for use in 
the event of an appeal. The accused may seek reconsider-
503 
† HR 2647 EAS 
ation of the military judge’s determination prior to or dur-
ing trial. 
‘‘(f) PROHIBITION ON DISCLOSURE OF CLASSIFIED IN-
FORMATION
BY
THE ACCUSED; RELIEF
FOR ACCUSED 
WHEN THE UNITED STATES OPPOSES DISCLOSURE.— 
‘‘(1) ORDER TO PREVENT DISCLOSURE BY AC-
CUSED.—Whenever the military judge denies a mo-
tion by the trial counsel that the judge issue an order 
under subsection (a), (c), or (d) and the trial counsel 
files with the military judge a declaration signed by 
a knowledgeable United States official possessing au-
thority to classify information objecting to disclosure 
of the classified information at issue, the military 
judge shall order that the accused not disclose or cause 
the disclosure of such information. 
‘‘(2) RESULT
OF
ORDER
UNDER
PARAGRAPH 
(1).—Whenever an accused is prevented by an order 
under paragraph (1) from disclosing or causing the 
disclosure of classified information, the military judge 
shall dismiss the case; except that, when the military 
judge determines that the interests of justice would 
not be served by dismissal of the case, the military 
judge shall order such other action, in lieu of dis-
missing the charge or specification, as the military
504 
† HR 2647 EAS 
judge determines is appropriate. Such action may in-
clude, but need not be limited to, the following: 
‘‘(A) Dismissing specified charges or speci-
fications. 
‘‘(B) Finding against the United States on 
any issue as to which the excluded classified in-
formation relates. 
‘‘(C) Striking or precluding all or part of 
the testimony of a witness. 
‘‘(3) TIME FOR THE UNITED STATES TO SEEK IN-
TERLOCUTORY APPEAL.—An order under paragraph 
(2) shall not take effect until the military judge has 
afforded the United States— 
‘‘(A) an opportunity to appeal such order 
under section 950d of this title; and 
‘‘(B) an opportunity thereafter to withdraw 
its objection to the disclosure of the classified in-
formation at issue. 
‘‘(g) RECIPROCITY.— 
‘‘(1) DISCLOSURE
OF
REBUTTAL
INFORMA-
TION.—Whenever the military judge determines that 
classified information may be disclosed in connection 
with a trial or pretrial proceeding, the military judge 
shall, unless the interests of fairness do not so require, 
order the United States to provide the accused with
505 
† HR 2647 EAS 
the information it expects to use to rebut the classified 
information. The military judge may place the 
United States under a continuing duty to disclose 
such rebuttal information. 
‘‘(2) SANCTION FOR FAILURE TO COMPLY.—If the 
United States fails to comply with its obligation 
under this subsection, the military judge— 
‘‘(A) may exclude any evidence not made 
the subject of a required disclosure; and 
‘‘(B) may prohibit the examination by the 
United States of any witness with respect to such 
information. 
‘‘§ 949p–7. Introduction of classified information into 
evidence 
‘‘(a) PRESERVATION OF CLASSIFICATION STATUS.— 
Writings, recordings, and photographs containing classified 
information may be admitted into evidence in proceedings 
of military commissions under this chapter without change 
in their classification status. 
‘‘(b) PRECAUTIONS BY MILITARY JUDGES.— 
‘‘(1) PRECAUTIONS
IN
ADMITTING
CLASSIFIED 
INFORMATION INTO EVIDENCE.—The military judge 
in a trial by military commission, in order to prevent 
unnecessary disclosure of classified information, may 
order admission into evidence of only part of a writ-
506 
† HR 2647 EAS 
ing, recording, or photograph, or may order admis-
sion into evidence of the whole writing, recording, or 
photograph with excision of some or all of the classi-
fied information contained therein, unless the whole 
ought in fairness be considered. 
‘‘(2) CLASSIFIED
INFORMATION
KEPT
UNDER 
SEAL.—The military judge shall allow classified in-
formation offered or accepted into evidence to remain 
under seal during the trial, even if such evidence is 
disclosed in the military commission, and may, upon 
motion by the Government, seal exhibits containing 
classified information for any period after trial as 
necessary to prevent a disclosure of classified informa-
tion when a knowledgeable United States official pos-
sessing authority to classify information submits to 
the military judge a declaration setting forth the 
damage to the national security that the disclosure of 
such information reasonably could be expected to 
cause. 
‘‘(c) TAKING OF TESTIMONY.— 
‘‘(1) OBJECTION
BY
TRIAL
COUNSEL.—During 
the examination of a witness, trial counsel may object 
to any question or line of inquiry that may require 
the witness to disclose classified information not pre-
viously found to be admissible.
507 
† HR 2647 EAS 
‘‘(2) ACTION BY MILITARY JUDGE.—Following an 
objection under paragraph (1), the military judge 
shall take such suitable action to determine whether 
the response is admissible as will safeguard against 
the compromise of any classified information. Such 
action may include requiring trial counsel to provide 
the military judge with a proffer of the witness’ re-
sponse to the question or line of inquiry and requir-
ing the accused to provide the military judge with a 
proffer of the nature of the information sought to be 
elicited by the accused. Upon request, the military 
judge may accept an ex parte proffer by trial counsel 
to the extent necessary to protect classified informa-
tion from disclosure, in accordance with the practice 
of the Federal courts under the Classified Information 
Procedures Act (18 U.S.C. App.). 
‘‘(d) DISCLOSURE AT TRIAL OF CERTAIN STATEMENTS 
PREVIOUSLY MADE BY A WITNESS.— 
‘‘(1) MOTION FOR PRODUCTION OF STATEMENTS 
IN
POSSESSION
OF
THE
UNITED
STATES.—After a 
witness called by the trial counsel has testified on di-
rect examination, the military judge, on motion of the 
accused, may order production of statements of the 
witness in the possession of the United States which 
relate to the subject matter as to which the witness
508 
† HR 2647 EAS 
has testified. This paragraph does not preclude dis-
covery or assertion of a privilege otherwise author-
ized. 
‘‘(2) INVOCATION OF PRIVILEGE BY THE UNITED 
STATES.—If the United States invokes a privilege, the 
trial counsel may provide the prior statements of the 
witness to the military judge during an ex parte pres-
entation to the extent necessary to protect classified 
information from disclosure, in accordance with the 
practice of the Federal courts under the Classified In-
formation Procedures Act (18 U.S.C. App.). 
‘‘(3) ACTION BY MILITARY JUDGE ON MOTION.— 
If the military judge finds that disclosure of any por-
tion of the statement identified by the United States 
as classified would be detrimental to the national se-
curity in the degree to warrant classification under 
the applicable Executive Order, statute, or regulation, 
that such portion of the statement is consistent with 
the testimony of the witness, and that the disclosure 
of such portion is not necessary to afford the accused 
a fair trial, the military judge shall excise that por-
tion from the statement. If the military judge finds 
that such portion of the statement is inconsistent with 
the testimony of the witness or that its disclosure is 
necessary to afford the accused a fair trial, the mili-
509 
† HR 2647 EAS 
tary judge, shall, upon the request of the trial counsel, 
review alternatives to disclosure in accordance with 
section 949p–6(d) of this title. 
‘‘SUBCHAPTER VI—SENTENCES 
‘‘Sec. 
‘‘949s. Cruel or unusual punishments prohibited. 
‘‘949t. Maximum limits. 
‘‘949u. Execution of confinement. 
‘‘§ 949s. Cruel or unusual punishments prohibited 
‘‘Punishment by flogging, or by branding, marking, or 
tattooing on the body, or any other cruel or unusual punish-
ment, 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. 
‘‘§ 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 pre-
scribe for that offense. 
‘‘§ 949u. Execution of confinement 
‘‘(a) IN GENERAL.—Under such regulations as the Sec-
retary of Defense may prescribe, a sentence of confinement 
adjudged by a military commission under this chapter may 
be carried into execution by confinement—
510 
† HR 2647 EAS 
‘‘(1) in any place of confinement under the con-
trol 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 sub-
section (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 VII—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. Interlocutory appeals by the United States. 
‘‘950e. Rehearings. 
‘‘950f. Review by United States Court of Appeals for the Armed Forces and Su-
preme Court. 
‘‘950g. Appellate counsel. 
‘‘950h. Execution of sentence; suspension of sentence. 
‘‘950i. Finality of proceedings, findings, and sentences. 
‘‘§ 950a. Error of law; lesser included offense 
‘‘(a) ERROR OF LAW.—A finding or sentence of a mili-
tary commission under this chapter may not be held incor-
rect on the ground of an error of law unless the error mate-
rially prejudices the substantial rights of the accused.
511 
† HR 2647 EAS 
‘‘(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 in-
cludes a lesser included offense. 
‘‘§ 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 announce-
ment of the sentence. 
‘‘(b) SUBMITTAL OF MATTERS BY ACCUSED TO CON-
VENING AUTHORITY.—(1) The accused may submit to the 
convening authority matters for consideration by the con-
vening authority with respect to the findings and the sen-
tence of the military commission under this chapter. 
‘‘(2)(A) Except as provided in subparagraph (B), a 
submittal under paragraph (1) shall be made in writing 
within 20 days after accused has been give an authenticated 
record of trial under section 949o(c) of this title. 
‘‘(B) If the accused shows that additional time is re-
quired 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.
512 
† HR 2647 EAS 
‘‘(3) The accused may waive his right to make a sub-
mittal 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 with-
in which the accused may make a submittal under this sub-
section shall be deemed to have expired upon the submittal 
of a waiver under this paragraph to the convening author-
ity. 
‘‘(c) ACTION BY CONVENING AUTHORITY.—(1) The au-
thority 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 con-
vening authority. 
‘‘(2) The convening authority is not required to take 
action on the findings of a military commission under this 
chapter. If the convening authority takes action on the find-
ings, the convening authority may, in his sole discretion, 
only— 
‘‘(A) dismiss any charge or specification by set-
ting 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 in-
cluded offense of the offense stated in the charge. 
‘‘(3)(A) The convening authority shall take action on 
the sentence of a military commission under this chapter.
513 
† HR 2647 EAS 
‘‘(B) Subject to regulations prescribed by the Secretary 
of Defense, action under this paragraph may be taken only 
after consideration of any matters submitted by the accused 
under subsection (b) or after the time for submitting such 
matters expires, whichever is earlier. 
‘‘(C) In taking action under this paragraph, the con-
vening authority may, in his sole discretion, approve, dis-
approve, commute, or suspend the sentence in whole or in 
part. The convening authority may not increase a sentence 
beyond that which is found by the military commission. 
‘‘(4) The convening authority shall serve on the ac-
cused or on defense counsel notice of any action taken by 
the convening authority under this subsection. 
‘‘(d) ORDER OF REVISION OR REHEARING.—(1) Sub-
ject 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 au-
thority 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 ma-
514 
† HR 2647 EAS 
terial prejudice to the substantial rights of the ac-
cused. 
‘‘(B) In no case may a proceeding in revision— 
‘‘(i) reconsider a finding of not guilty of a speci-
fication 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 suffi-
ciently 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 au-
thority 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 au-
thority disapproves the sentence.
515 
† HR 2647 EAS 
‘‘§ 950c. Appellate referral; waiver or withdrawal of 
appeal 
‘‘(a) AUTOMATIC REFERRAL
FOR APPELLATE RE-
VIEW.—Except as provided in subsection (b), in each case 
in which the final decision of a military commission under 
this chapter (as approved by the convening authority) in-
cludes a finding of guilty, the convening authority shall 
refer the case to the United States Court of Appeals for the 
Armed Forces. Any such referral shall be made in accord-
ance with procedures prescribed under regulations of the 
Secretary. 
‘‘(b) WAIVER OF RIGHT OF REVIEW.—(1) Except in 
a case in which the sentence as approved under section 950b 
of this title extends to death, an accused may file with the 
convening authority a statement expressly waiving the right 
of the accused to appellate review by the United States 
Court of Appeals for the Armed Forces under section 950f(a) 
of this title of the final decision of the military commission 
under this chapter. 
‘‘(2) A waiver under paragraph (1) shall be signed by 
both the accused and a defense counsel. 
‘‘(3) A waiver under paragraph (1) must be filed, if 
at all, within 10 days after notice of the action is served 
on the accused or on defense counsel under section 
950b(c)(4) of this title. The convening authority, for good
516 
† HR 2647 EAS 
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. 
‘‘§ 950d. Interlocutory appeals by the United States 
‘‘(a) INTERLOCUTORY APPEAL.—Except as provided 
in subsection (b), in a trial by military commission under 
this chapter, the United States may take an interlocutory 
appeal to the United States Court of Appeals for the Armed 
Forces under section 950f of this title of any order or ruling 
of the military judge— 
‘‘(1) that terminates proceedings of the military 
commission with respect to a charge or specification; 
‘‘(2) that excludes evidence that is substantial 
proof of a fact material in the proceeding; 
‘‘(3) that relates to a matter under subsection (c) 
or (d) of section 949d of this title; or 
‘‘(4) that, with respect to classified informa-
tion—
517 
† HR 2647 EAS 
‘‘(A) authorizes the disclosure of such infor-
mation; 
‘‘(B) imposes sanctions for nondisclosure of 
such information; or 
‘‘(C) refuses a protective order sought by the 
United States to prevent the disclosure of such 
information. 
‘‘(b) LIMITATION.—The United States may not appeal 
under subsection (a) 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. 
‘‘(c) SCOPE OF APPEAL RIGHT WITH RESPECT TO 
CLASSIFIED INFORMATION.—The United States has the 
right to appeal under paragraph (4) of subsection (a) when-
ever the military judge enters an order or ruling that would 
require the disclosure of classified information, without re-
gard to whether the order or ruling appealed from was en-
tered under this chapter, another provision of law, a rule, 
or otherwise. Any such appeal may embrace any preceding 
order, ruling, or reasoning constituting the basis of the 
order or ruling that would authorize such disclosure. 
‘‘(d) TIMING AND ACTION ON INTERLOCUTORY AP-
PEALS RELATING TO CLASSIFIED INFORMATION.— 
‘‘(1) APPEAL
TO
BE
EXPEDITED.—An appeal 
taken pursuant to paragraph (4) of subsection (a)
518 
† HR 2647 EAS 
shall be expedited by the United States Court of Ap-
peals for the Armed Forces. 
‘‘(2) APPEALS BEFORE TRIAL.—If such an ap-
peal is taken before trial, the appeal shall be taken 
within 10 days after the order or ruling appealed 
from and the trial shall not commence until the ap-
peal is decided. 
‘‘(3) APPEALS DURING TRIAL.—If such an ap-
peal is taken during trial, the military judge shall 
adjourn the trial until the appeal is decided, and the 
court of appeals— 
‘‘(A) shall hear argument on such appeal 
within 4 days of the adjournment of the trial 
(excluding weekends and holidays); 
‘‘(B) may dispense with written briefs other 
than the supporting materials previously sub-
mitted to the military judge; 
‘‘(C) shall render its decision within four 
days of argument on appeal (excluding weekends 
and holidays); and 
‘‘(D) may dispense with the issuance of a 
written opinion in rendering its decision. 
‘‘(e) NOTICE AND TIMING OF OTHER APPEALS.—The 
United States shall take an appeal of an order or ruling 
under subsection (a), other than an appeal under para-
519 
† HR 2647 EAS 
graph (4) of that subsection, by filing a notice of appeal 
with the military judge within 5 days after the date of the 
order or ruling. 
‘‘(f) METHOD OF APPEAL.—An appeal under this sec-
tion shall be forwarded, by means specified in regulations 
prescribed by the Secretary of Defense, directly to the 
United States Court of Appeals for the Armed Forces. 
‘‘(g) APPEALS COURT TO ACT ONLY WITH RESPECT 
TO MATTER OF LAW.—In ruling on an appeal under para-
graph (1), (2), or (3) of subsection (a), the appeals court 
may act only with respect to matters of law. 
‘‘(h) SUBSEQUENT APPEAL RIGHTS OF ACCUSED NOT 
AFFECTED.—An appeal under paragraph (4) of subsection 
(a), and a decision on such appeal, shall not affect the right 
of the accused, in a subsequent appeal from a judgment of 
conviction, to claim as error reversal by the military judge 
on remand of a ruling appealed from during trial. 
‘‘§ 950e. Rehearings 
‘‘(a) COMPOSITION OF MILITARY COMMISSION FOR RE-
HEARING.—Each rehearing under this chapter shall take 
place before a military commission under this chapter com-
posed of members who were not members of the military 
commission which first heard the case. 
‘‘(b) SCOPE OF REHEARING.—(1) Upon a rehearing—
520 
† HR 2647 EAS 
‘‘(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 mer-
its 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 pre-
trial 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 com-
mission. 
‘‘§ 950f. Review by United States Court of Appeals for 
the Armed Forces and Supreme Court 
‘‘(a) REVIEW BY UNITED STATES COURT OF APPEALS 
FOR THE ARMED FORCES.—(1) Subject to the provisions 
of this subsection, the United States Court of Appeals for 
the Armed Forces shall have exclusive jurisdiction to deter-
521 
† HR 2647 EAS 
mine the final validity of any judgment rendered by a mili-
tary commission under this chapter. 
‘‘(2) In any case referred to it pursuant to section 
950c(a) of this title, the United States Court of Appeals for 
the Armed Forces may act only with respect to the findings 
and sentence as approved by the convening authority. It 
may affirm only such findings of guilty, and the sentence 
or such part or amount of the sentence, as it finds correct 
in law and fact and determines, on the basis of the entire 
record, should be approved. In considering the record, it 
may weigh the evidence, judge the credibility of witnesses, 
and determine controverted questions of fact, recognizing 
that the trial court saw and heard the witnesses. 
‘‘(3) If the United States Court of Appeals for the 
Armed Forces sets aside the findings and sentence, it may, 
except where the setting aside is based on lack of sufficient 
evidence in the record to support the findings, order a re-
hearing. If it sets aside the findings and sentence and does 
not order a rehearing, it shall order that the charges be dis-
missed. 
‘‘(b) REVIEW
BY SUPREME COURT.—The Supreme 
Court of the United States may review by writ of certiorari 
pursuant to section 1257 of title 28 the final judgment of 
the United States Court of Appeals for the Armed Forces 
in a determination under subsection (a).
522 
† HR 2647 EAS 
‘‘§ 950g. Appellate counsel 
‘‘(a) APPOINTMENT.—The Secretary of Defense shall, 
by regulation, establish procedures for the appointment of 
appellate counsel for the United States and for the accused 
in military commissions under this chapter. Appellate 
counsel shall meet the qualifications of counsel for appear-
ing before military commissions under this chapter. 
‘‘(b) REPRESENTATION OF UNITED STATES.—Appel-
late counsel may represent the United States in any appeal 
or review proceeding under this chapter. Appellate Govern-
ment counsel may represent the United States before the 
Supreme Court in case arising under this chapter when re-
quested to do so by the Attorney General. 
‘‘(c) REPRESENTATION
OF ACCUSED.—The accused 
shall be represented before the United States Court of Ap-
peals for the Armed Forces or the Supreme Court by mili-
tary appellate counsel, or by civilian counsel if retained 
by him. 
‘‘§ 950h. Execution of sentence; suspension of sentence 
‘‘(a) EXECUTION OF SENTENCE OF DEATH ONLY UPON 
APPROVAL BY THE PRESIDENT.—If the sentence of a mili-
tary 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 Presi-
dent may commute, remit, or suspend the sentence, or any 
part thereof, as he sees fit.
523 
† HR 2647 EAS 
‘‘(b) EXECUTION OF SENTENCE OF DEATH ONLY UPON 
FINAL JUDGMENT OF LEGALITY OF PROCEEDINGS.—(1) If 
the sentence of a military commission under this chapter 
extends to death, the sentence may not be executed until 
there is a final judgement as to the legality of the pro-
ceedings (and with respect to death, approval under sub-
section (a)). 
‘‘(2) A judgement as to legality of proceedings is final 
for purposes of paragraph (1) when review is completed in 
accordance with the judgment of the United States Court 
of Appeals for the Armed Forces and (A) a petition for a 
writ of certiorari is not timely filed, (B) such a petition 
is denied by the Supreme Court, or (C) review is otherwise 
completed in accordance with the judgment of the Supreme 
Court. 
‘‘(c) SUSPENSION OF SENTENCE.—The Secretary of the 
Defense, or the convening authority acting on the case (if 
other than the Secretary), may suspend the execution of any 
sentence or part thereof in the case. 
‘‘§ 950i. Finality of proceedings, findings, and sen-
tences 
‘‘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
524 
† HR 2647 EAS 
publishing the proceedings of military commissions under 
this chapter are binding upon all departments, courts, 
agencies, and officers of the United States, subject only to 
action by the Secretary or the convening authority as pro-
vided in section 950h(c) of this title and the authority of 
the President. 
‘‘SUBCHAPTER VIII—PUNITIVE MATTERS 
‘‘§ 950p. Definitions; construction of certain offenses; 
common circumstances 
‘‘(a) DEFINITIONS.—In this subchapter: 
‘‘(1) The term ‘military objective’ means combat-
ants and those objects during an armed conflict 
which, by their nature, location, purpose, or use, effec-
tively contribute to the war-fighting or war-sus-
taining capability of an opposing force and whose 
total or partial destruction, capture, or neutralization 
would constitute a definite military advantage to the 
attacker under the circumstances at the time of an at-
tack. 
‘‘(2) The term ‘protected person’ means any per-
son entitled to protection under one or more of the 
Geneva Conventions, including civilians not taking 
an active part in hostilities, military personnel 
placed out of combat by sickness, wounds, or deten-
tion, and military medical or religious personnel.
525 
† HR 2647 EAS 
‘‘(3) The term ‘protected property’ means any 
property specifically protected by the law of war, in-
cluding buildings dedicated to religion, education, 
art, science, or charitable purposes, historic monu-
ments, hospitals, and places where the sick and 
wounded are collected, but only if and to the extent 
such property is not being used for military purposes 
or is not otherwise a military objective. The term in-
cludes objects properly identified by one of the distinc-
tive emblems of the Geneva Conventions, but does not 
include civilian property that is a military objective. 
‘‘(b) CONSTRUCTION OF CERTAIN OFFENSES.—The in-
tent required for offenses under paragraphs (1), (2), (3), 
(4), and (12) of section 950w of this title precludes their 
applicability with regard to collateral damage or to death, 
damage, or injury incident to a lawful attack. 
‘‘(c) COMMON CIRCUMSTANCES.—An offense specified 
in this subchapter is triable by military commission under 
this chapter only if the offense is committed in the context 
of and associated with armed conflict. 
‘‘(d) OFFENSES
ENCOMPASSED
UNDER
LAW
OF 
WAR.—To the extent that the provisions of this subchapter 
codify offenses that have traditionally been triable under 
the law of war or otherwise triable by military commission, 
this subchapter does not preclude trial for offenses that oc-
526 
† HR 2647 EAS 
curred before the date of the enactment of the National De-
fense Authorization Act for Fiscal Year 2010. 
‘‘§ 950q. Principals 
‘‘Any person punishable under this chapter who— 
‘‘(1) commits an offense punishable by this chap-
ter, 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 chap-
ter; or 
‘‘(3) is a superior commander who, with regard 
to acts punishable by 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 meas-
ures to prevent such acts or to punish the perpetrators 
thereof, 
is a principal. 
‘‘§ 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.
527 
† HR 2647 EAS 
‘‘§ 950s. Conviction of lesser offenses 
‘‘An accused may be found guilty of an offense nec-
essarily included in the offense charged or of an attempt 
to commit either the offense charged or an attempt to com-
mit either the offense charged or an offense necessarily in-
cluded therein. 
‘‘§ 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. 
‘‘§ 950u. Conspiracy 
‘‘Any person subject to this chapter who conspires to 
commit one or more substantive offenses triable by military 
commission under this subchapter, and who knowingly does 
any overt act to effect the object of the conspiracy, shall 
be punished, if death results to one or more of the victims,
528 
† HR 2647 EAS 
by death or such other punishment as a military commis-
sion 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. 
‘‘§ 950v. Solicitation 
‘‘Any person subject to this chapter who solicits or ad-
vises 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 com-
mitted, be punished with the punishment provided for the 
commission of the offense, but, if the offense solicited or ad-
vised is not committed or attempted, he shall be punished 
as a military commission under this chapter may direct. 
‘‘§ 950w. Crimes triable by military commissions 
‘‘The following offenses shall be triable by military 
commission under this chapter at any time without limita-
tion: 
‘‘(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 com-
mission under this chapter may direct. 
‘‘(2) ATTACKING CIVILIANS.—Any person subject 
to this chapter who intentionally engages in an attack
529 
† HR 2647 EAS 
upon a civilian population as such, or individual ci-
vilians not taking active part in hostilities, shall be 
punished, if death results to one or more of the vic-
tims, by death or such other punishment as a mili-
tary 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 commis-
sion 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 mili-
tary objective shall be punished as a military com-
mission under this chapter may direct. 
‘‘(4) ATTACKING
PROTECTED
PROPERTY.—Any 
person subject to this chapter who intentionally en-
gages in an attack upon protected property shall be 
punished as a military commission under this chap-
ter may direct. 
‘‘(5) PILLAGING.—Any person subject to this 
chapter who intentionally and in the absence of mili-
tary necessity appropriates or seizes property for pri-
vate or personal use, without the consent of a person 
with authority to permit such appropriation or sei-
zure, shall be punished as a military commission 
under this chapter may direct.
530 
† HR 2647 EAS 
‘‘(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 sur-
vivors or surrender accepted, with the intent to 
threaten an adversary or to conduct hostilities such 
that there would be no survivors or surrender accept-
ed, 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 con-
tinue to detain such person or persons with the intent 
of compelling any nation, person other than the hos-
tage, 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
WEAP-
ONS.—Any person subject to this chapter who inten-
531 
† HR 2647 EAS 
tionally, 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 ordi-
nary course of events, through its asphyxiating, bac-
teriological, 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 po-
sitions, 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 punish-
ment 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 po-
sitions, or otherwise takes advantage of the location
532 
† HR 2647 EAS 
of, protected property with the intent to shield a mili-
tary objective from attack, or to shield, favor, or im-
pede military operations, shall be punished as a mili-
tary 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 suf-
fering (other than pain or suffering incidental to 
lawful sanctions) upon another person within his 
custody or physical control for the purpose of ob-
taining 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 paragraph, the term ‘severe 
mental pain or suffering’ has the meaning given 
that term in section 2340(2) of title 18.
533 
† HR 2647 EAS 
‘‘(12) CRUEL
OR
INHUMAN
TREATMENT.—Any 
person subject to this chapter who subjects another 
person in their custody or under their physical con-
trol, regardless of nationality or physical location, to 
cruel or inhuman treatment that constitutes a grave 
breach of common Article 3 of the Geneva Conventions 
shall be punished, if death results to the victim, by 
death or such other punishment as a military com-
mission 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. 
‘‘(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 privi-
leged belligerents, 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 punish-
ment as a military commission under this chap-
ter 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.
534 
† HR 2647 EAS 
‘‘(B) SERIOUS BODILY INJURY DEFINED.— 
In this paragraph, the term ‘serious bodily in-
jury’ means bodily injury which involves— 
‘‘(i) a substantial risk of death; 
‘‘(ii) extreme physical pain; 
‘‘(iii) protracted and obvious disfigure-
ment; 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 vic-
tims, by death or such other punishment as a mili-
tary 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 commis-
sion under this chapter may direct. 
‘‘(15) MURDER IN VIOLATION OF THE LAW OF 
WAR.—Any person subject to this chapter who inten-
535 
† HR 2647 EAS 
tionally kills one or more persons, including privi-
leged belligerents, 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 chap-
ter 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 con-
fidence or belief in killing, injuring, or capturing 
such person or persons shall be punished, if death re-
sults 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
536 
† HR 2647 EAS 
truce to feign an intention to negotiate, surrender, or 
otherwise suspend hostilities when there is no such in-
tention shall be punished as a military commission 
under this chapter may direct. 
‘‘(19) IMPROPERLY
USING
A
DISTINCTIVE
EM-
BLEM.—Any person subject to this chapter who inten-
tionally uses a distinctive emblem recognized by the 
law of war for combatant purposes in a manner pro-
hibited by the law of war shall be punished as a mili-
tary commission under this chapter may direct. 
‘‘(20) INTENTIONALLY
MISTREATING
A
DEAD 
BODY.—Any person subject to this chapter who inten-
tionally mistreats the body of a dead person, without 
justification by legitimate military necessary, shall be 
punished as a military commission under this chap-
ter may direct. 
‘‘(21) RAPE.—Any person subject to this chapter 
who forcibly or with coercion or threat of force wrong-
fully 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 mili-
tary commission under this chapter may direct. 
‘‘(22) SEXUAL ASSAULT OR ABUSE.—Any person 
subject to this chapter who forcibly or with coercion
537 
† HR 2647 EAS 
or threat of force engages in sexual contact with one 
or more persons, or causes one or more persons to en-
gage in sexual contact, shall be punished as a mili-
tary 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 inten-
tionally engages in an act that evinces a wanton dis-
regard for human life, in a manner calculated to in-
fluence or affect the conduct of government or civilian 
population by intimidation or coercion, or to retali-
ate 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
538 
† HR 2647 EAS 
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 TER-
RORISM.— 
‘‘(A) OFFENSE.—Any person subject to this 
chapter who provides material support or re-
sources, 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 (23) 
of this section), or who intentionally provides 
material support or resources to an international 
terrorist organization engaged in hostilities 
against the United States, knowing that such or-
ganization 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 ‘mate-
rial 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 al-
legiance or duty to the United States, knowingly and
539 
† HR 2647 EAS 
intentionally aids an enemy of the United States, or 
one of the co-belligerents of the enemy, shall be pun-
ished as a military commission under this chapter 
may direct. 
‘‘(27) SPYING.—Any person subject to this chap-
ter who, in violation of the law of war and with in-
tent 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 informa-
tion by clandestine means or while acting under false 
pretenses, for the purpose of conveying such informa-
tion 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 com-
mission under this chapter may direct. 
‘‘(28) 
CONTEMPT.—A 
military 
commission 
under this chapter may punish for contempt any per-
son who uses any menacing word, sign, or gesture in 
its presence, or who disturbs its proceedings by any 
riot or disorder. 
‘‘(29) PERJURY
AND
OBSTRUCTION
OF
JUS-
TICE.—A military commission under this chapter 
may try offenses and impose such punishment as the 
military commission may direct for perjury, false tes-
540 
† HR 2647 EAS 
timony, or obstruction of justice related to the mili-
tary commission.’’. 
(b) CONFORMING AMENDMENT.—Paragraph (13) of 
section 802 of title 10, United States Code (article 2 of the 
Uniform Code of Military Justice), is amended to read as 
follows: 
‘‘(13) Privileged belligerents (as that term is de-
fined section 948a(3) of this title) who violate the law 
of war.’’. 
(c) PROCEEDINGS UNDER PRIOR STATUTE.— 
(1) 
PRIOR
CONVICTIONS.—The 
amendments 
made by subsection (a) shall have no effect on the va-
lidity of any conviction pursuant to chapter 47A of 
title 10, United States Code, as such chapter was in 
effect on the day before the date of the enactment of 
this Act. 
(2) COMPOSITION OF MILITARY COMMISSIONS.— 
Notwithstanding the amendments made by subsection 
(a)— 
(A) any commission convened pursuant to 
chapter 47A of title 10, United States Code, as 
such chapter was in effect on the day before the 
date of the enactment of this Act, shall be deemed 
to have been convened pursuant to chapter 47A
541 
† HR 2647 EAS 
of title 10, United States Code, as amended by 
subsection (a); 
(B) any member of the Armed Forces de-
tailed to serve on a commission pursuant to 
chapter 47A of title 10, United States Code, as 
in effect on the day before the date of the enact-
ment of this Act, shall be deemed to have been de-
tailed pursuant to chapter 47A of title 10, 
United States Code, as so amended; 
(C) any military judge detailed to a com-
mission pursuant to chapter 47A of title 10, 
United States Code, as in effect on the day before 
the date of the enactment of this Act, shall be 
deemed to have been detailed pursuant to chapter 
47A of title 10, United States Code, as so amend-
ed; 
(D) any trial counsel or defense counsel de-
tailed for a commission pursuant to chapter 47A 
of title 10, United States Code, as in effect on the 
day before the date of the enactment of this Act, 
shall be deemed to have been detailed pursuant 
to chapter 47A of title 10, United States Code, 
as so amended; and 
(E) any court reporters detailed to or em-
ployed by a commission pursuant to chapter 47A
542 
† HR 2647 EAS 
of title 10, United States Code, as in effect on the 
day before the date of the enactment of this Act, 
shall be deemed to have been detailed or em-
ployed pursuant to chapter 47A of title 10, 
United States Code, as so amended. 
(3) CHARGES
AND
SPECIFICATIONS.—Notwith-
standing the amendments made by subsection (a)— 
(A) any charges or specifications sworn or 
referred pursuant to chapter 47A of title 10, 
United States Code, as such chapter was in effect 
on the day before the date of the enactment of 
this Act, shall be deemed to have been sworn or 
referred pursuant to chapter 47A of title 10, 
United States Code, as amended by subsection 
(a); and 
(B) any charges or specifications described 
in subparagraph (A) may be amended, without 
prejudice, as needed to properly allege jurisdic-
tion under chapter 47A of title 10, United States 
Code, as so amended, and crimes triable under 
such chapter. 
(4) PROCEDURES AND REQUIREMENTS.—Except 
as provided in paragraphs (1) through (3), any com-
mission convened pursuant to chapter 47A of title 10, 
United States Code, as such chapter was in effect on
543 
† HR 2647 EAS 
the day before the date of the enactment of this Act, 
shall be conducted after the date of the enactment of 
this Act in accordance with the procedures and re-
quirements of chapter 47A of title 10, United States 
Code, as amended by subsection (a). 
(d) NOTICE TO CONGRESS.— 
(1) INITIAL
RULES.—Not later than 90 days 
after the date of the enactment of this Act, the Sec-
retary of Defense shall submit to the Committees on 
Armed Services of the Senate and the House of Rep-
resentatives a report setting for the procedures for 
military commissions prescribed under chapter 47A 
of title 10, United States Code, as amended by sub-
section (a). 
(2) CHANGES TO PROCEDURES.—Not later than 
60 days before the date on which any proposed modi-
fication of the regulations in effect for military com-
missions under Chapter 47A of title 10, United States 
Code, as so amended, goes into effect, the Secretary of 
Defense shall submit to the Committees on Armed 
Services of the Senate and the House of Representa-
tives a report describing the modification.
544 
† HR 2647 EAS 
SEC. 1032. TRIAL BY MILITARY COMMISSION OF ALIEN 
UNPRIVILEGED BELLIGERENTS FOR VIOLA-
TIONS OF THE LAW OF WAR. 
(a) IN GENERAL.—Subchapter I of chapter 47A of title 
10, United States Code, as amended by section 1031(a), is 
further amended by adding at the end the following new 
section: 
‘‘§ 948e. 
Trial 
by 
military 
commission 
of 
alien 
unprivileged belligerents for violations of 
the law of war 
‘‘(a) SENSE OF CONGRESS.—It is the sense of Congress 
that the preferred forum for the trial of alien unprivileged 
enemy belligerents subject to this chapter for violations of 
the law of war and other offenses made punishable by this 
chapter is trial by military commission under this chap-
ter.’’ 
(b) CLERICAL AMENDMENT.—The table of sections of 
the beginning of such subchapter, as amended by section 
1031(a), is further amended by adding after the item relat-
ing to section 948d the following new item: 
‘‘948e. Trial by military commission of alien unprivileged belligerents for viola-
tions of the law of war.’’. 
SEC. 1033. NO MIRANDA WARNINGS FOR AL QAEDA TERROR-
ISTS. 
(a) DEFINITIONS.—In this section—
545 
† HR 2647 EAS 
(1) the term ‘‘foreign national’’ means an indi-
vidual who is not a citizen or national of the United 
States; and 
(2) the term ‘‘enemy combatant’’ includes a priv-
ileged belligerent and an unprivileged enemy bellig-
erent, as those terms are defined in section 948a of 
title 10, United States Code, as amended by section 
1031 of this Act. 
(b) NO MIRANDA WARNINGS.—Absent an unappealable 
court order requiring the reading of such statements, no 
military or intelligence agency or department of the United 
States shall read to a foreign national who is captured or 
detained as an enemy combatant by the United States the 
statement required by Miranda v. Arizona, 384 U.S. 436 
(1966), or otherwise inform such a prisoner of any rights 
that the prisoner may or may not have to counsel or to 
remain silent consistent with Miranda v. Arizona, 384 U.S. 
436 (1966). No Federal statute, regulation, or treaty shall 
be construed to require that a foreign national who is cap-
tured or detained as an enemy combatant by the United 
States be informed of any rights to counsel or remain silent 
consistent with Miranda v. Arizona, 384 U.S. 436 (1966) 
that the prisoner may or may not have, except as required 
by the United States Constitution. No statement that is 
made by a foreign national who is captured or detained
546 
† HR 2647 EAS 
as an enemy combatant by the United States may be ex-
cluded from any proceeding on the basis that the prisoner 
was not informed of a right to counsel or to remain silent, 
that the prisoner may or may not have, unless required by 
the United States Constitution. 
(c) IN GENERAL.—This section shall not apply to the 
Department of Justice. 
Subtitle E—Medical Facility 
Matters 
SEC. 1041. SHORT TITLE. 
This subtitle may be cited as the ‘‘Captain James A. 
Lovell Federal Health Care Center Act of 2009’’. 
SEC. 1042. EXECUTIVE AGREEMENT. 
(a) EXECUTIVE AGREEMENT REQUIRED.—Not later 
than 180 days after the date of the enactment of this Act, 
the Secretary of Defense, in consultation with the Secretary 
of the Navy, and the Secretary of Veterans Affairs shall exe-
cute a signed executive agreement for the joint use by the 
Department of Defense and the Department of Veterans Af-
fairs of the following: 
(1) A new Navy ambulatory care center (on 
which construction commenced in July 2008), park-
ing structure, and supporting structures and facilities 
in North Chicago, Illinois, and Great Lakes, Illinois.
547 
† HR 2647 EAS 
(2) Medical personal property and equipment re-
lating to the center, structures, and facilities described 
in paragraph (1). 
(b) SCOPE.—The agreement required by subsection (a) 
shall— 
(1) be a binding operational agreement on mat-
ters under the areas specified in section 706 of the 
Duncan Hunter National Defense Authorization Act 
for Fiscal Year 2009 (Public Law 110–417; 122 Stat. 
4500); and 
(2) contain additional terms and conditions as 
required by the provisions of this title. 
SEC. 1043. TRANSFER OF PROPERTY. 
(a) TRANSFER.— 
(1) TRANSFER AUTHORIZED.—The Secretary of 
Defense, acting through the Administrator of General 
Services, may transfer, without reimbursement, to the 
Secretary of Veterans Affairs jurisdiction over the 
center, structures, facilities, and property and equip-
ment covered by the executive agreement under section 
1042. 
(2) DATE OF TRANSFER.—The transfer author-
ized by paragraph (1) may not occur before the ear-
lier of—
548 
† HR 2647 EAS 
(A) the date that is five years after the date 
of the execution under section 1042 of the execu-
tive agreement required by that section; or 
(B) the date of the completion of such spe-
cific benchmarks relating to the joint use by the 
Department of Defense and the Department of 
Veterans Affairs of the Navy ambulatory care 
center described in section 1042(a)(1) as the Sec-
retary of Defense (in consultation with the Sec-
retary of the Navy) and Secretary of the Depart-
ment of Veterans Affairs shall jointly establish 
for purposes of this section not later than 180 
days after the date of the enactment of this Act. 
(3) DELAY OF TRANSFER FOR COMPLETION OF 
CONSTRUCTION.—If construction on the center, struc-
tures, and facilities described in paragraph (1) is not 
complete as of the date specified in subparagraph (A) 
or (B) of that paragraph, as applicable, the transfer 
of the center, structures, and facilities under that 
paragraph may occur thereafter upon completion of 
the construction. 
(4) DISCHARGE OF TRANSFER.—The Adminis-
trator of General Services shall effectualize and me-
morialize the transfer as authorized by this subsection
549 
† HR 2647 EAS 
not later than 30 days after receipt of the request for 
the transfer. 
(5) DESIGNATION
OF
FACILITY.—The center, 
structures, facilities transferred under this subsection 
shall be designated and known after transfer under 
this subsection as the ‘‘Captain James A. Lovell Fed-
eral Health Care Center’’. 
(b) REVERSION.— 
(1) IN GENERAL.—If any of the real and related 
personal property transferred pursuant to subsection 
(a) is subsequently used for purposes other than those 
specified in the executive agreement required by sec-
tion 1042, or is otherwise jointly determined by the 
Secretary of Defense and the Secretary of Veterans Af-
fairs to be excess to the needs of the Captain James 
A. Lovell Federal Health Care Center, the Secretary 
of Veterans Affairs shall offer to transfer jurisdiction 
over such property, without reimbursement, to the 
Secretary of Defense. Any such transfer shall be car-
ried out by the Administrator of General Services not 
later than one year after the acceptance of the offer 
of such transfer, plus such additional time as the Ad-
ministrator may require to effectuate and memori-
alize such transfer.
550 
† HR 2647 EAS 
(2) REVERSION IN EVENT OF LACK OF FACILI-
TIES INTEGRATION.— 
(A) WITHIN INITIAL PERIOD.—During the 
five-year period beginning on the date of the 
transfer of real and related personal property 
pursuant to subsection (a), if the Secretary of 
Veterans Affairs, the Secretary of Defense, and 
the Secretary of Navy jointly determine that the 
integration of the facilities transferred pursuant 
to that subsection should not continue, jurisdic-
tion over such real and related personal property 
shall be transferred, without reimbursement, to 
the Secretary of Defense. The transfer under this 
subparagraph shall be carried out by the Admin-
istrator of General Services not later than 180 
days after the date of the determination by the 
Secretaries, plus such additional time as the Ad-
ministrator may require to effectuate and memo-
rialize such transfer. 
(B) AFTER INITIAL PERIOD.—After the end 
of the five-year period described in subparagraph 
(A), if the Secretary of Veterans Affairs or the 
Secretary of Defense determines that the integra-
tion of the facilities transferred pursuant to sub-
section (a) should not continue, the Secretary of
551 
† HR 2647 EAS 
Veterans Affairs shall transfer, without reim-
bursement, to the Secretary of Defense jurisdic-
tion over the real and related personal property 
described in subparagraph (A). Any transfer 
under this subparagraph shall be carried out by 
the Administrator of General Services not later 
than one year after the date of the determination 
by the applicable Secretary, plus such additional 
time as the Administrator may require to effec-
tuate and memorialize such transfer. 
(C) REVERSION PROCEDURES.—The execu-
tive agreement required by section 1042 shall 
provide the following: 
(i) Specific procedures for the reversion 
of real and related personal property, as 
appropriate, transferred pursuant to sub-
section (a) to ensure the continuing accom-
plishment by the Department of Defense 
and the Department of Veterans Affairs of 
their missions in the event that the integra-
tion of facilities described transferred pur-
suant to that subsection (a) is not completed 
or a reversion of property occurs under sub-
paragraph (A) or (B).
552 
† HR 2647 EAS 
(ii) In the event of a reversion under 
this paragraph, the transfer from the De-
partment of Veterans Affairs to the Depart-
ment of Defense of associated functions in-
cluding appropriate resources, civilian posi-
tions, and personnel, in a manner that will 
not result in adverse impact to the missions 
of Department of Defense or the Department 
of Veterans Affairs. 
SEC. 1044. TRANSFER OF CIVILIAN PERSONNEL OF THE DE-
PARTMENT OF DEFENSE. 
(a) TRANSFER OF FUNCTIONS.—The Secretary of De-
fense and the Secretary of the Navy may transfer to the 
Secretary of Veterans Affairs functions necessary for the ef-
fective operation of the Captain James A. Lovell Federal 
Health Care Center. The Secretary of Veterans Affairs may 
accept any functions so transferred. 
(b) TERMS.— 
(1) EXECUTIVE
AGREEMENT.—Any transfer of 
functions under subsection (a) shall be carried out as 
provided in the executive agreement required by sec-
tion 1042. The functions to be so transferred shall be 
identified utilizing the provisions of section 3503 of 
title 5, United States Code.
553 
† HR 2647 EAS 
(2) ELEMENTS.—In providing for the transfer of 
functions under subsection (a), the executive agree-
ment required by section 1042 shall provide for the 
following: 
(A) The transfer of civilian employee posi-
tions of the Department of Defense identified in 
the executive agreement to the Department of 
Veterans Affairs, and of the incumbent civilian 
employees in such positions, and the transition 
of the employees so transferred to the pay, bene-
fits, and personnel systems that apply to employ-
ees of the Department of Veterans Affairs (to the 
extent that different systems apply). 
(B) The transition of employees so trans-
ferred to the pay systems of the Department of 
Veterans Affairs in a manner which will not re-
sult in any reduction in an employee’s regular 
rate of compensation (including basic pay, local-
ity pay, any physician comparability allowance, 
and any other fixed and recurring pay supple-
ment) at the time of transition. 
(C) The continuation after transfer of the 
same employment status for employees so trans-
ferred who have already successfully completed or 
are in the process of completing a one-year pro-
554 
† HR 2647 EAS 
bationary period under title 5, United States 
Code, notwithstanding the provisions of section 
7403(b)(1) of title 38, United States Code. 
(D) The extension of collective bargaining 
rights under title 5, United States Code, to em-
ployees so transferred in positions listed in sub-
section 7421(b) of title 38, United States Code, 
notwithstanding the provisions of section 7422 of 
title 38, United States Code, for a two-year pe-
riod beginning on the effective date of the execu-
tive agreement. 
(E) At the end of the two-year period begin-
ning on the effective date of the executive agree-
ment, for the following actions by the Secretary 
of Veterans Affairs with respect to the extension 
of collective bargaining rights under subpara-
graph (D): 
(i) Consideration of the impact of the 
extension of such rights. 
(ii) Consultation with exclusive em-
ployee representatives of the transferred em-
ployees about such impact. 
(iii) Determination, after consultation 
with the Secretary of Defense and the Sec-
retary of the Navy, whether the extension of
555 
† HR 2647 EAS 
such rights should be terminated, modified, 
or kept in effect. 
(iv) Submittal to Congress of a notice 
regarding the determination made under 
clause (iii). 
(F) The recognition after transfer of each 
transferred physician’s and dentist’s total num-
ber of years of service as a physician or dentist 
in the Department of Defense for purposes of cal-
culating such employee’s rate of base pay, not-
withstanding the provisions of section 7431(b)(3) 
of title 38, United States Code. 
(G) The preservation of the seniority of the 
employees so transferred for all pay purposes. 
(c) RETENTION OF DEPARTMENT OF DEFENSE EM-
PLOYMENT AUTHORITY.—Notwithstanding subsections (a) 
and (b), the Department of Defense may employ civilian 
personnel at the Captain James Lovell Federal Health Care 
Center if the Secretary of the Navy, or a designee of the 
Secretary, determines it is necessary and appropriate to 
meet mission requirements of the Department of the Navy.
558 
† HR 2647 EAS 
(i) Section 1095 of title 10, United 
States Code. 
(ii) Section 1729 of title 38, United 
States Code. 
(iii) Public Law 87–693, popularly 
known as the ‘‘Federal Medical Care Recov-
ery Act’’ (42 U.S.C. 2651 et seq.). 
(5) ADMINISTRATION.—The Fund shall be ad-
ministered in accordance with such provisions of the 
executive agreement required by section 1042 as the 
Secretary of Defense and the Secretary of Veterans Af-
fairs shall jointly include in the executive agreement. 
Such provisions shall provide for an independent re-
view of the methodology established under paragraph 
(3). 
(c) AVAILABILITY.— 
(1) IN
GENERAL.—Funds transferred to the 
Fund under subsection (b) shall be available to fund 
the operations of the Captain James A. Lovell Federal 
Health Care Center, including capital equipment, 
real property maintenance, and minor construction 
projects that are not required to be specifically au-
thorized by law under section 2805 of title 10, United 
States Code, or section 8104 of title 38, United States 
Code.
559 
† HR 2647 EAS 
(2) LIMITATION.—The availability of funds 
transferred to the Fund under subsection (b)(2)(C) 
shall be subject to the provisions of section 1729A of 
title 38, United States Code. 
(3) PERIOD OF AVAILABILITY.— 
(A) IN GENERAL.—Except as provided in 
subparagraph (B), funds transferred to the Fund 
under subsection (b) shall be available under 
paragraph (1) for one fiscal year after transfer. 
(B) EXCEPTION.—Of an amount transferred 
to the Fund under subsection (b), an amount not 
to exceed two percent of such amount shall be 
available under paragraph (1) for two fiscal 
years after transfer. 
(d) 
FINANCIAL
RECONCILIATION.—The 
executive 
agreement required by section 1042 shall provide for the 
development and implementation of an integrated financial 
reconciliation process that meets the fiscal reconciliation re-
quirements of the Department of Defense, the Department 
of the Navy, and the Department of Veterans Affairs. The 
process shall permit each of the Department of Defense, the 
Department of Navy, and the Department of Veterans Af-
fairs to identify their fiscal contributions to the Fund, tak-
ing into consideration accounting, workload, and financial 
management differences.
560 
† HR 2647 EAS 
(e) ANNUAL REPORT.—The Secretary of Defense, in 
consultation with the Secretary of the Navy, and the Sec-
retary of Veterans Affairs shall jointly provide for an an-
nual independent review of the Fund for at least three years 
after the date of the enactment of this Act. Such review shall 
include detailed statements of the uses of amounts of the 
Fund and an evaluation of the adequacy of the proportional 
share contributed to the Fund by each of the Secretary of 
Defense and the Secretary of Veterans Affairs. 
(f) TERMINATION.—The authorities in this section 
shall terminate on September 30, 2015. 
SEC. 1046. ELIGIBILITY OF MEMBERS OF THE UNIFORMED 
SERVICES FOR CARE AND SERVICES AT THE 
CAPTAIN JAMES A. LOVELL FEDERAL HEALTH 
CARE CENTER. 
(a) IN GENERAL.—For purposes of eligibility for 
health care under chapter 55 of title 10, United States Code, 
the Captain James A. Lovell Federal Health Care Center 
may be treated as a facility of the uniformed services to 
the extent provided under subsection (b) in the executive 
agreement required by section 1042. 
(b) ADDITIONAL ELEMENTS.—The executive agreement 
required by section 1042 may include provisions as follows:
561 
† HR 2647 EAS 
(1) To establish an integrated priority list for 
access to health care at the Captain James A. Lovell 
Federal Health Care Center, which list shall— 
(A) integrate the respective health care pri-
ority lists of the Secretary of Defense and the 
Secretary of Veterans Affairs; and 
(B) take into account categories of bene-
ficiaries, enrollment program status, and such 
other matters as the Secretary of Defense and the 
Secretary of Veterans Affairs jointly consider ap-
propriate. 
(2) To incorporate any resource-related limita-
tions for access to health care at the Captain James 
A. Lovell Federal Health Care Center that the Sec-
retary of Defense may establish for purposes of ad-
ministering space-available eligibility for care in fa-
cilities of the uniformed services under chapter 55 of 
title 10, United States Code. 
(3) To allocate financial responsibility for care 
provided at the Captain James A. Lovell Federal 
Health Care Center for individuals who are eligible 
for care under both chapter 55 of title 10, United 
States Code, and title 38, United States Code. 
(4) To waive the applicability to the Captain 
James A. Lovell Federal Health Care Center of any
562 
† HR 2647 EAS 
provision of section 8111(e) of title 38, United States 
Code, that the Secretary of Defense and the Secretary 
of Veterans Affairs shall jointly specify. 
SEC. 1047. EXTENSION OF DOD–VA HEALTH CARE SHARING 
INCENTIVE FUND. 
Section 8111(d)(3) of title 38, United States Code, is 
amended by striking ‘‘September 30, 2010’’ and inserting 
‘‘September 30, 2015’’. 
Subtitle F—Miscellaneous Require-
ments, Authorities, and Limita-
tions 
SEC. 1051. CONGRESSIONAL EARMARKS RELATING TO THE 
DEPARTMENT OF DEFENSE. 
(a) REPORT ON RECURRING EARMARKS.— 
(1) REPORT
REQUIRED.—Not later than 180 
days after the date of the enactment of this Act, the 
Secretary of Defense shall submit to the congressional 
defense committees a report setting forth a list of each 
congressional earmark that has been included in a 
national defense authorization Act for three or more 
consecutive fiscal years as of the national defense au-
thorization Act for fiscal year 2010. 
(2) ELEMENTS.—The report required by para-
graph (1) shall include the following:
563 
† HR 2647 EAS 
(A) A description of the extent to which 
competitive or merit-based procedures were used 
to award funding, or to enter into a contract, 
grant, or other agreement, pursuant to each con-
gressional earmark listed in the report. 
(B) An identification of the specific con-
tracting vehicle used for each such earmark. 
(C) In the case of any congressional ear-
mark listed in the report for which competitive 
or merit-based procedures were not used to 
award funding, or to enter the contract, grant, 
or other agreement, a statement of the reasons 
competitive or merit-based procedures were not 
used. 
(b) DOD INSPECTOR
GENERAL
AUDIT
OF
EAR-
MARKS.—The Inspector General of the Department of De-
fense shall conduct an audit of contracts, grants, or other 
agreements pursuant to congressional earmarks of Depart-
ment of Defense funds to determine whether or not the re-
cipients of such earmarks are complying with requirements 
of Federal law on the use of appropriated funds to influence, 
whether directly or indirectly, congressional action on any 
legislation or appropriation matter pending before Con-
gress. 
(c) DEFINITIONS.—In this section:
564 
† HR 2647 EAS 
(1) The term ‘‘congressional earmark’’ means 
any congressionally directed spending item (Senate) 
or congressional earmark (House of Representatives) 
on the list published in compliance with rule XLIV 
of the Standing Rules of the Senate or rule XXI of 
the Rules of the House of Representatives. 
(2) The term ‘‘national defense authorization 
Act’’ means an Act authorizing funds for a fiscal year 
for the military activities of the Department of De-
fense, and for other purposes. 
SEC. 1052. NATIONAL STRATEGIC FIVE-YEAR PLAN FOR IM-
PROVING THE NUCLEAR FORENSIC AND AT-
TRIBUTION CAPABILITIES OF THE UNITED 
STATES. 
(a) IN GENERAL.—The President, with the participa-
tion of the officials specified in subsection (c), shall develop 
a national strategic plan for improving over a five-year pe-
riod the nuclear forensic and attribution capabilities of the 
United States and the methods, capabilities, and capacity 
for nuclear materials forensics and attribution. 
(b) ELEMENTS.—The plan required under subsection 
(a) shall include the following: 
(1) An investment plan to support nuclear mate-
rials forensics and attribution. 
(2) Recommendations with respect to—
565 
† HR 2647 EAS 
(A) the allocation of roles and responsibil-
ities for pre-detonation, detonation, and post-det-
onation activities; and 
(B) methods for the attribution of nuclear 
or radiological material to the source when such 
material is intercepted by the United States, for-
eign governments, or international bodies or is 
dispersed in the course of a terrorist attack or 
other nuclear or radiological explosion. 
(c) OFFICIALS.—The officials specified in this sub-
section are the following: 
(1) The Secretary of Homeland Security. 
(2) The Secretary of Defense. 
(3) The Secretary of Energy. 
(4) The Attorney General. 
(5) The Secretary of State. 
(6) The Director of National Intelligence. 
(7) Such other officials as the President considers 
appropriate. 
(d) SUBMITTAL TO CONGRESS.—Not later than 180 
days after the date of the enactment of this Act, the Presi-
dent shall submit to Congress the plan required under sub-
section (a).
566 
† HR 2647 EAS 
SEC. 1053. ONE-YEAR EXTENSION OF AUTHORITY TO OFFER 
AND MAKE REWARDS FOR ASSISTANCE IN 
COMBATING TERRORISM THROUGH GOVERN-
MENT PERSONNEL OF ALLIED FORCES. 
Section 127b(c)(3)(C) of title 10, United States Code, 
is amended by striking ‘‘September, 30, 2009’’ and insert-
ing ‘‘September, 30, 2010’’. 
SEC. 1054. BUSINESS PROCESS REENGINEERING. 
(a) NEW PROGRAMS.—Section 2222 of title 10, United 
States Code, is amended— 
(1) in subsection (a)— 
(A) by redesignating paragraphs (1) and 
(2) as paragraphs (2) and (3), respectively; 
(B) by inserting before paragraph (2), as 
redesignated by subparagraph (A) of this sub-
section, the following new paragraph (1): 
‘‘(1) the appropriate chief management officer 
for the defense business system modernization has de-
termined whether or not— 
‘‘(A) the defense business system moderniza-
tion is in compliance with the enterprise archi-
tecture developed under subsection (c); and 
‘‘(B) 
appropriate 
business 
process 
re-
engineering efforts have been undertaken to en-
sure that—
567 
† HR 2647 EAS 
‘‘(i) the business process to be sup-
ported by the defense business system mod-
ernization will be as streamlined and effi-
cient as practicable; and 
‘‘(ii) the need to tailor commercial-off- 
the-shelf systems to meet unique require-
ments or incorporate unique interfaces has 
been eliminated or reduced to the maximum 
extent practicable;’’; 
(C) in paragraph (2), as redesignated by 
subparagraph (A) of this subsection, by striking 
subparagraph (A) and inserting the following 
new subparagraph (A): 
‘‘(A) has been determined by the appro-
priate chief management officer to be in compli-
ance with the requirements of paragraph (1);’’; 
and 
(D) in paragraph (3), as redesignated by 
subparagraph (A) of this paragraph, by striking 
‘‘the certification by the approval authority is’’ 
and inserting ‘‘the certification by the approval 
authority and the determination by the chief 
management officer are’’; and 
(2) in subsection (f)—
568 
† HR 2647 EAS 
(A) 
by 
redesignating 
paragraphs 
(1) 
through (5) as subparagraphs (A) through (E), 
respectively; 
(B) by inserting ‘‘(1)’’ before ‘‘The Sec-
retary of Defense’’; 
(C) in subparagraph (E) of paragraph (1), 
as designated by this paragraph, by striking 
‘‘paragraphs (1) through (4)’’ and inserting 
‘‘subparagraphs (A) through (D)’’; and 
(D) by adding at the end the following new 
paragraph (2): 
‘‘(2) For purposes of subsection (a), the appropriate 
chief management officer for a defense business system mod-
ernization is as follows: 
‘‘(A) In the case of an Army program, the Chief 
Management Officer of the Army. 
‘‘(B) In the case of a Navy program, the Chief 
Management Officer of the Navy. 
‘‘(C) In the case of an Air Force program, the 
Chief Management Officer of the Air Force. 
‘‘(D) In the case of a program of a Defense Agen-
cy, the Deputy Chief Management Officer of the De-
partment of Defense. 
‘‘(E) In the case of a program that will support 
the business processes of more than one military de-
569 
† HR 2647 EAS 
partment or Defense Agency, the Deputy Chief Man-
agement Officer of the Department of Defense.’’. 
(b) ONGOING PROGRAMS.— 
(1) IN GENERAL.—Not later than one year after 
the date of the enactment of this Act, the appropriate 
chief management officer for each defense business 
system modernization approved by the Defense Busi-
ness Systems Management Committee before the date 
of the enactment of this Act that will have a total cost 
in excess of $100,000,000 shall review such defense 
business system modernization to determine whether 
or not appropriate business process reengineering ef-
forts have been undertaken to ensure that— 
(A) the business process to be supported by 
such defense business system modernization will 
be as streamlined and efficient as practicable; 
and 
(B) the need to tailor commercial-off-the- 
shelf systems to meet unique requirements or in-
corporate unique interfaces has been eliminated 
or reduced to the maximum extent practicable. 
(2) ACTION
ON
FINDING
OF
LACK
OF
RE-
ENGINEERING
EFFORTS.—If the appropriate chief 
management officer determines that appropriate busi-
ness process reengineering efforts have not been under-
570 
† HR 2647 EAS 
taken with regard to a defense business system mod-
ernization as described in paragraph (1), that chief 
management officer— 
(A) shall develop a plan to undertake busi-
ness process reengineering efforts with respect to 
the defense business system modernization; and 
(B) may direct that the defense business 
system modernization be restructured or termi-
nated, if necessary to meet the requirements of 
paragraph (1). 
(3) DEFINITIONS.—In this subsection: 
(A) The term ‘‘appropriate chief manage-
ment officer’’, with respect to a defense business 
system modernization, has the meaning given 
that term in paragraph (2) of subsection (f) of 
section 2222 of title 10, United States Code (as 
amended by subsection (a)(2) of this section). 
(B) The term ‘‘defense business system mod-
ernization’’ has the meaning given that term in 
subsection (j)(3) of section 2222 of title 10, 
United States Code. 
SEC. 1055. RESPONSIBILITY FOR PREPARATION OF BIEN-
NIAL GLOBAL POSITIONING SYSTEM REPORT. 
(a) IN GENERAL.—Section 2281(d) of title 10, United 
States Code, is amended—
571 
† HR 2647 EAS 
(1) in paragraph (1)— 
(A) by striking ‘‘the Secretary of Defense’’ 
and inserting ‘‘the Deputy Secretary of Defense 
and the Deputy Secretary of Transportation, in 
their capacity as co-chairs of the National Exec-
utive Committee for Space-Based Positioning, 
Navigation, and Timing,’’; and 
(B) by striking ‘‘the Committee on Armed 
Services of the Senate and the Committee on 
Armed Services of the House of Representatives’’ 
and inserting ‘‘the Committees on Armed Serv-
ices and Commerce, Science, and Transportation 
of the Senate and the Committees on Armed 
Services, Energy and Commerce, and Transpor-
tation and Infrastructure of the House of Rep-
resentatives’’; and 
(2) by striking paragraph (2) and inserting the 
following new paragraph (2): 
‘‘(2) In preparing each report required under para-
graph (1), the Deputy Secretary of Defense and the Deputy 
Secretary of Transportation, in their capacity as co-chairs 
of the National Executive Committee for Space-Based Posi-
tioning, Navigation, and Timing, shall consult with the 
Secretary of Defense, the Secretary of State, the Secretary
572 
† HR 2647 EAS 
of Transportation, and the Secretary of Homeland Secu-
rity.’’. 
(b) TECHNICAL AMENDMENTS.—Paragraph (1)(B)(ii) 
of such section is amended— 
(1) by inserting ‘‘validated’’ before ‘‘performance 
requirements’’; and 
(2) by inserting ‘‘in accordance with Office of 
Management and Budget Circular A–109’’ after 
‘‘Plan’’. 
SEC. 1056. ADDITIONAL SUBPOENA AUTHORITY FOR THE 
INSPECTOR GENERAL OF THE DEPARTMENT 
OF DEFENSE. 
Section 8 of the Inspector General Act of 1978 (5 
U.S.C. App. 8) is amended by adding at the end the fol-
lowing new subsection: 
‘‘(i)(1) The Inspector General of the Department of De-
fense is authorized to require by subpoena the attendance 
and testimony of witnesses necessary to carry out an audit 
or investigation pursuant to the authorities of this Act. 
‘‘(2) A subpoena issued under this subsection, in the 
case of contumacy or refusal to obey, shall be enforceable 
by order of any appropriate United States district court. 
‘‘(3) The Inspector General shall consult with the At-
torney General before issuing any subpoena under this sec-
573 
† HR 2647 EAS 
tion, and shall not proceed with the issuance of such a sub-
poena if the Attorney General objects.’’. 
SEC. 1057. REPORTS ON BANDWIDTH REQUIREMENTS FOR 
MAJOR DEFENSE ACQUISITION PROGRAMS 
AND 
MAJOR 
SYSTEM 
ACQUISITION 
PRO-
GRAMS. 
Section 1047(d) of the Duncan Hunter National De-
fense Authorization Act for Fiscal Year 2009 (Public Law 
110–417; 122 Stat. 4603; 10 U.S.C. 2366b note) is amend-
ed— 
(1) by redesignating paragraphs (1) and (2) as 
subparagraphs (A) and (B), respectively, and by in-
denting such subparagraphs, as so redesignated, four 
ems from the left margin; 
(2) by striking ‘‘The Secretary’’ and inserting 
the following: 
‘‘(1) IN GENERAL.—The Secretary’’; and 
(3) by adding at the end the following: 
‘‘(2) REPORTS.—Not later than January 1 each 
year, the Secretary of Defense and the Director of Na-
tional Intelligence shall each submit to the congres-
sional defense committees, the Select Committee on 
Intelligence of the Senate, and the Permanent Select 
Committee on Intelligence of the House of Representa-
tives a report on any determinations made under
574 
† HR 2647 EAS 
paragraph (1) with respect to meeting the bandwidth 
requirements for major defense acquisition programs 
and major system acquisition programs during the 
preceding fiscal year.’’. 
SEC. 1058. MULTIYEAR CONTRACTS UNDER PILOT PRO-
GRAM 
ON 
COMMERCIAL 
FEE-FOR-SERVICE 
AIR REFUELING SUPPORT FOR THE AIR 
FORCE. 
(a) MULTIYEAR CONTRACTS AUTHORIZED.—The Sec-
retary of the Air Force may enter into one or more 
multiyear contracts, beginning with the fiscal year 2011 
program year, for purposes of conducting the pilot program 
on utilizing commercial fee-for-service air refueling tanker 
aircraft for Air Force operations required by section 1081 
of the National Defense Authorization Act for Fiscal Year 
2008 (Public Law 110–181; 122 Stat. 335). 
(b) 
COMPLIANCE
WITH
LAW
APPLICABLE
TO 
MULTIYEAR CONTRACTS.—Any contract entered into under 
subsection (a) shall be entered into in accordance with the 
provisions of section 2306c of title 10, United States Code, 
except that— 
(1) the term of the contract may not be more 
than 8 years; 
(2) notwithstanding subsection 2306c(b) of title 
10, United States Code, the authority under sub-
575 
† HR 2647 EAS 
section 2306c(a) of title 10, United States Code, shall 
apply to the fee-for-service air refueling pilot pro-
gram; 
(3) the contract may contain a clause setting 
forth a cancellation ceiling in excess of $100,000,000; 
and 
(4) the contract may provide for an unfunded 
contingent liability in excess of $20,000,000. 
(c) COMPLIANCE WITH LAW APPLICABLE TO SERVICE 
CONTRACTS.—A contract entered into under subsection (a) 
shall be entered into in accordance with the provisions of 
section 2401 of title 10, United States Code, except that— 
(1) the Secretary shall not be required to certify 
to the congressional defense committees that the con-
tract is the most cost-effective means of obtaining 
commercial fee-for-service air refueling tanker aircraft 
for Air Force operations; and 
(2) the Secretary shall not be required to certify 
to the congressional defense committees that there is 
no alternative for meeting urgent operational require-
ments other than making the contract. 
(d) LIMITATION ON AMOUNT.—The amount of a con-
tract under subsection (a) may not exceed $999,999,999. 
(e) PROVISION OF GOVERNMENT INSURANCE.—A com-
mercial air operator contracting with the Department of
576 
† HR 2647 EAS 
Defense under the pilot program referred to in subsection 
(a) shall be eligible to receive government provided insur-
ance pursuant to chapter 443 of title 49, United States 
Code, if commercial insurance is unavailable on reasonable 
terms and conditions. 
SEC. 1059. ADDITIONAL DUTY FOR ADVISORY PANEL ON DE-
PARTMENT OF DEFENSE CAPABILITIES FOR 
SUPPORT OF CIVIL AUTHORITIES AFTER CER-
TAIN INCIDENTS. 
Section 1082(d) of the National Defense Authorization 
Act for Fiscal Year 2008 (Public Law 110–181; 122 Stat. 
337) is amended by— 
(1) redesignating paragraphs (7) and (8) as 
paragraphs (9) and (10), respectively; 
(2) in paragraph (4), by striking ‘‘other depart-
ment’’ and inserting ‘‘other departments’’; and 
(3) by inserting after paragraph (6) the fol-
lowing new paragraphs: 
‘‘(7) assess the adequacy of the process and meth-
odology by which the Department of Defense estab-
lishes, maintains, and resources dedicated, special, 
and general purpose forces for conducting operations 
described in paragraph (1); 
‘‘(8) assess the adequacy of the resources planned 
and programmed by the Department of Defense to en-
577 
† HR 2647 EAS 
sure the preparedness and capability of dedicated, 
special, and general purpose forces for conducting op-
erations described in paragraph (1);’’. 
Subtitle G—Reports 
SEC. 1071. NATIONAL INTELLIGENCE ESTIMATE ON NU-
CLEAR ASPIRATIONS OF NON-STATE ENTI-
TIES AND NUCLEAR WEAPONS AND RELATED 
PROGRAMS 
IN 
NON-NUCLEAR-WEAPONS 
STATES AND COUNTRIES NOT PARTIES TO 
THE NUCLEAR NON-PROLIFERATION TREATY. 
(a) IN GENERAL.—The Director of National Intel-
ligence shall prepare a national intelligence estimate (NIE) 
on the following: 
(1) The nuclear weapons programs and any re-
lated programs of countries that are non-nuclear- 
weapons state parties to the Treaty on Non-Prolifera-
tion of Nuclear Weapons, done at Washington, Lon-
don, and Moscow July 1, 1968, and entered into force 
March 5, 1970 (commonly known as the ‘‘Nuclear 
Non-Proliferation Treaty’’) and countries that are not 
parties to the Treaty. 
(2) The nuclear weapons aspirations of such 
non-state entities as the Director considers appro-
priate to include in the estimate.
578 
† HR 2647 EAS 
(b) ELEMENTS.—The national intelligence estimate re-
quired under subsection (a) shall include, with respect to 
each country described in subsection (a)(1) and each non- 
state entity referred to in subsection (a)(2), the following: 
(1) A statement of the number of nuclear weap-
ons possessed by such country or non-state entity. 
(2) An estimate of the total number of nuclear 
weapons that such country or non-state entity seeks to 
obtain and, in the case of such non-state entity, an 
assessment of the extent to which such non-state entity 
is seeking to develop a nuclear weapon or device or 
radiological dispersion device. 
(3) A description of the technical characteristics 
of any nuclear weapons possessed by such country or 
non-state entity. 
(4) A description of nuclear weapons designs 
available to such country or non-state entity. 
(5) A description of any sources of assistance 
with respect to nuclear weapons design provided to 
such country or non-state entity. 
(6) An assessment of the annual capability of 
such country and non-state entity to produce new or 
newly designed nuclear weapons.
579 
† HR 2647 EAS 
(7) A description of the type of fissile materials 
used in any nuclear weapons possessed by such coun-
try or non-state entity. 
(8) An description of the location and produc-
tion capability of any fissile materials production fa-
cilities in such country or controlled by such non- 
state entity, the current status of any such facilities, 
and any plans by such country or non-state entity to 
develop such facilities. 
(9) An identification of the source of any fissile 
materials used by such country or non-state entity, if 
such materials are not produced in facilities referred 
to in paragraph (8). 
(10) A description of any delivery systems avail-
able to such country or non-state entity and an as-
sessment of whether nuclear warheads have been 
mated to any such delivery system. 
(11) An assessment of the physical security of the 
storage facilities for nuclear weapons in such country 
or controlled by such non-state entity. 
(12) An assessment of whether such country or 
non-state entity is modernizing or otherwise improv-
ing the safety, security, and reliability of the nuclear 
weapons stockpile of such country or non-state entity.
580 
† HR 2647 EAS 
(13) In the case of a country, an assessment of 
the policy of such country on the employment and use 
of nuclear weapons. 
(c) SUBMITTAL TO CONGRESS.— 
(1) IN GENERAL.—Except as provided in para-
graph (2), the Director of National Intelligence shall 
submit to the congressional defense committees, the 
Select Committee on Intelligence of the Senate, and 
the Permanent Select Committee on Intelligence of the 
House of Representatives the national intelligence es-
timate required under subsection (a) by not later than 
September 1, 2010. 
(2) NOTIFICATION OF DELAY IN SUBMITTAL.—If 
the Director of National Intelligence determines that 
it will not be possible for the Director to submit the 
national intelligence estimate by September 1, 2010, 
the Director shall, not later than August 1, 2010, sub-
mit to the committees specified in paragraph (1) a 
notice— 
(A) that the national intelligence estimate 
will not be submitted by September 1, 2010; and 
(B) setting forth the date by which the Di-
rector will submit the national intelligence esti-
mate.