		II
		Calendar No. 605
		109th CONGRESS
		2d Session
		S. 3886
		IN THE SENATE OF THE UNITED STATES

			September 11, 2006
			Mr. Frist (for himself
			 and Mr. McConnell) introduced the
			 following bill; which was read the first time

			September 12, 2006
			Read the second time and placed on the
			 calendar

		A BILL
		To authorize military commissions to bring terrorists to
		  justice, to strengthen and modernize terrorist surveillance capabilities, and
		  for other purposes.

		1.Short titleThis Act may be cited as the
			 Terrorist Tracking, Identification, and Prosecution Act of
			 2006.
		IMilitary
			 Commissions
			101.Short
			 titleThis title may be cited
			 as the Military Commissions Act of
			 2006.
			102.FindingsCongress makes the following
			 findings:
				(1)For more than 10
			 years, the al Qaeda terrorist organization has waged an unlawful war of
			 violence and terror against the United States and its allies. Al Qaeda was
			 involved in the bombing of the World Trade Center in New York City in 1993, the
			 bombing of the United States Embassies in Kenya and Tanzania in 1998, and the
			 attack on the U.S.S. Cole in Yemen in 2000. On September 11, 2001, al Qaeda
			 launched the most deadly foreign attack on United States soil in history. 19 al
			 Qaeda operatives hijacked 4 commercial aircraft and piloted them into the World
			 Trade Center Towers in New York City and the headquarters of the United States
			 Department of Defense at the Pentagon, and downed United Airlines Flight 93.
			 The attack destroyed the Towers, severely damaged the Pentagon, and resulted in
			 the deaths of approximately 3,000 innocent people.
				(2)Following the
			 attacks on the United States on September 11th, Congress recognized the
			 existing hostilities with al Qaeda and affiliated terrorist organizations and,
			 by the Authorization for the Use of Military Force Joint Resolution (Public Law
			 107–40), recognized that the President has authority under the
			 Constitution to take action to deter and prevent acts of international
			 terrorism against the United States and authorized the President
			 to use all necessary and appropriate force against those nations,
			 organizations, or persons he determines planned, authorized, committed, or
			 aided the terrorist attacks that occurred on September 11, 2001 … in order to
			 prevent any future acts of international terrorism against the United States by
			 such nations, organizations, or persons..
				(3)The President’s
			 authority to convene military commissions arises from the Constitution’s
			 vesting in the President of the executive power and the power of Commander in
			 Chief of the Armed Forces. As the Supreme Court of the United States recognized
			 in Madsen v. Kinsella, 343 U.S. 341, 346–48 (1952), [s]ince our nation’s
			 earliest days, such commissions have been constitutionally recognized agencies
			 for meeting many urgent governmental responsibilities related to war…. They
			 have taken many forms and borne many names. Neither their procedure nor their
			 jurisdiction has been prescribed by statute. It has been adapted in each
			 instance to the need that called it forth..
				(4)In exercising the
			 authority vested in the President by the Constitution and laws of the United
			 States, including the Authorization for Use of Military Force Joint Resolution,
			 and in accordance with the law of war, the President has detained enemy
			 combatants in the course of this armed conflict and issued the Military Order
			 of November 13, 2001, to govern the Detention, Treatment, and Trial of
			 Certain Noncitizens in the War Against Terrorism. This Order authorized
			 the Secretary of Defense to establish military commissions to try individuals
			 subject to the Order for any offenses triable by military commission that such
			 individuals are alleged to have committed.
				(5)The Supreme Court
			 in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), held that the military
			 commissions established by the Department of Defense under the President’s
			 Military Order of November 13, 2001, were not consistent with certain aspects
			 of United States domestic law. The Congress may by law, and does by enactment
			 of this title, eliminate any deficiency of statutory authority to facilitate
			 bringing terrorists with whom the United States is engaged in armed conflict to
			 justice for violations of the law of war and other offenses triable by military
			 commissions. The prosecution of such individuals by military commissions
			 established and conducted consistent with this title fully complies with the
			 Constitution, the laws of the United States, treaties to which the United
			 States is a party, and the law of war.
				(6)The use of
			 military commissions is particularly important in this context because other
			 alternatives, such as the use of courts-martial, generally are impracticable.
			 The terrorists with whom the United States is engaged in armed conflict have
			 demonstrated a commitment to the destruction of the United States and its
			 people, to the violation of the law of war, and to the abuse of American legal
			 processes. In a time of ongoing armed conflict, it generally is neither
			 practicable nor appropriate for combatants like al Qaeda terrorists to be tried
			 before tribunals that include all of the procedures associated with
			 courts-martial.
				(7)Many procedures
			 for courts-martial would not be practicable in trying the unlawful enemy
			 combatants for whom this title provides for trial by military commission. For
			 instance, court-martial proceedings would in certain circumstances—
					(A)compel the
			 Government to share classified information with the accused, even though
			 members of al Qaeda cannot be trusted with our Nation’s secrets and it would
			 not be consistent with the national security of the United States to provide
			 them with access to classified information;
					(B)exclude the use
			 of hearsay evidence even though such evidence often will be the best and most
			 reliable evidence that the accused has committed a war crime. For example, many
			 witnesses in military commission trials are likely to be foreign nationals who
			 are not amenable to process or may be precluded for national security reasons
			 from entering the United States or Guantanamo Bay to testify. Other witnesses
			 may be unavailable because of military necessity, incarceration, injury, or
			 death. In short, applying the hearsay rules from the Manual for Courts Martial
			 or from the Federal Rules of Evidence would make it virtually impossible to
			 bring terrorists to justice for their violations of the law of war;
					(C)specify speedy
			 trials and technical rules for sworn and authenticated statements when, due to
			 the exigencies of wartime, the United States cannot safely require members of
			 the armed forces to gather evidence on the battlefield, including civilian
			 eyewitness testimony, as though they were police officers. Nor can the United
			 States divert members from the front lines and their duty stations to attend
			 military commission proceedings. Therefore, strict compliance with such rules
			 for evidence gathered on the battlefield would be impracticable, given the
			 preeminent focus on military operations and the chaotic nature of
			 combat.
					(8)The exclusive
			 judicial review for which this title, and the Detainee Treatment Act of 2005,
			 provides is without precedent in the history of armed conflicts involving the
			 United States, exceeds the scope of judicial review historically provided for
			 by military commissions, and is channeled in a manner appropriately tailored
			 to—
					(A)the circumstances
			 of the conflicts between the United States and international terrorist
			 organizations; and
					(B)the need to
			 ensure fair treatment of those detained as enemy combatants, to minimize the
			 diversion of members of the armed forces from other wartime duties, and to
			 protect the national security of the United States.
					(9)In early 2002, as
			 memorialized in a memorandum dated February 7, 2002, the President determined
			 that common Article 3 of the Geneva Conventions did not apply with respect to
			 the United States conflict with al Qaeda because al Qaeda was not a party to
			 those treaties and the conflict with al Qaeda was an armed conflict of an
			 international character. That was the interpretation of the United States prior
			 to the Supreme Court’s decision in Hamdan on June 29, 2006. Hamdan’s statement
			 to the contrary makes it appropriate to clarify the standards imposed by common
			 Article 3. This title makes clear that the prohibitions against cruel, inhuman,
			 and degrading treatment found in the Detainee Treatment Act of 2005 fully
			 satisfy the obligations of the United States with respect to the standards for
			 detention and treatment established by section 1 of common Article 3, except
			 for those obligations arising under paragraphs (b) and (d). In addition, the
			 Act makes clear that the Geneva Conventions are not a source of judicially
			 enforceable individual rights, thereby reaffirming that enforcement of the
			 obligations imposed by the Conventions is a matter between the nations that are
			 parties to them.
				103.Authorization
			 for military commissions
				(a)In
			 generalThe President is authorized to establish military
			 commissions for violations of the law of war and other offenses triable by
			 military commissions as provided in section 104 of this Act (chapter 47A of
			 title 10).
				(b)ConstructionThe
			 authority granted in subsection (a) shall not be construed to limit the
			 authority of the President under the Constitution of the United States or the
			 laws thereof to establish military commissions on the battlefield, in occupied
			 territories, or in other armed conflicts should circumstances so
			 require.
				(c)Scope of
			 punishment authorityA military commission established pursuant
			 to subsection (a) shall have authority to impose upon any person found guilty
			 after a proceeding under this title a sentence that is appropriate to the
			 offense or offenses for which there was a finding of guilt, which sentence may
			 include death where authorized by this title, imprisonment for life or a term
			 of years, payment of a fine or restitution, or such other lawful punishment or
			 condition of punishment as the commission shall determine to be proper.
				(d)Execution of
			 punishmentThe Secretary of Defense shall be authorized to carry
			 out a sentence of punishment decreed by a military commission pursuant to
			 subsection (a) in accordance with such procedures as the Secretary may
			 prescribe.
				(e)Annual report
			 on trials by military commission
					(1)Annual report
			 requiredNot later than December 31 each year, the Secretary of
			 Defense shall submit to the Armed Services Committees of the House of
			 Representatives and the Senate an annual report on the conduct of trials by
			 military commissions established pursuant to subsection (a) during such
			 year.
					(2)FormEach
			 such report shall be submitted in unclassified form, with classified annex, if
			 necessary and consistent with national security.
					104.Military
			 commissions
				(a)Military
			 commissions
					(1)In
			 general.—Subtitle A of title 10, United States Code, is amended by inserting
			 after chapter 47 the following new chapter:

							47AMilitary
				commissions
								IGeneral
				provisions

										Sec.
										948a. Definitions.
										948b. Military commissions generally.
										948c. Persons subject to military commissions.
										948d. Jurisdiction of military commissions.

									948a.Definitions
				In this chapter:
										(1)AlienThe
				term alien means an individual who is not a citizen of the United
				States.
										(2)Classified
				informationThe term classified information means
				the following—
											(A)Any information
				or material that has been determined by the United States Government pursuant
				to statute, Executive order, or regulation to require protection against
				unauthorized disclosure for reasons of national security.
											(B)Any restricted
				data, as that term is defined in section 11 y. of the Atomic Energy Act of 1954
				(42 U.S.C. 2014(y)).
											(3)CommissionThe
				term commission means a military commission established pursuant
				to this chapter.
										(4)Convening
				authorityThe term convening authority shall be the
				Secretary of Defense or his designee.
										(5)Lawful enemy
				combatantThe term lawful enemy combatant means an
				individual determined by or under the authority of the President or Secretary
				of Defense (whether on an individualized or collective basis) to be—
											(A)a member of the
				regular forces of a State party engaged in hostilities against the United
				States or its cobelligerents;
											(B)a member of a
				militia, volunteer corps, or organized resistance movement belonging to a State
				party engaged in such hostilities, which are under responsible command, wear a
				fixed distinctive sign recognizable at a distance, carry their arms openly, and
				abide by the law of war; or
											(C)a member of a
				regular armed forces who professes allegiance to a government engaged in such
				hostilities, but not recognized by the United States.
											(6)SecretaryThe
				term Secretary means the Secretary of Defense.
										(7)Unlawful enemy
				combatantThe term unlawful enemy combatant means an
				individual determined by or under the authority of the President or the
				Secretary of Defense—
											(A)to be part of or
				affiliated with a force or organization, including but not limited to al Qaeda,
				the Taliban, any international terrorist organization, or associated forces,
				engaged in hostilities against the United States or its cobelligerents in
				violation of the law of war;
											(B)to have committed
				a hostile act in aid of such a force or organization so engaged; or
											(C)to have supported
				hostilities in aid of such a force or organization so engaged.
											This
				definition includes any individual determined by a Combatant Status Review
				Tribunal, before the effective date of this Act, to have been properly detained
				as an enemy combatant, but excludes any alien determined by the President or
				the Secretary of Defense (whether on an individualized or collective basis), or
				by any competent tribunal established under their authority, to be (i) a lawful
				enemy combatant (including a prisoner of war), or (ii) a protected person whose
				trial by these military commissions would be inconsistent with Articles 64–76
				of the Geneva Convention Relative to the Protection of Civilian Persons in Time
				of War of August 12, 1949. For purposes of this section, the term
				protected person refers to the category of persons described in
				Article 4 of the Geneva Convention Relative to the Protection of Civilian
				Persons in Time of War of August 12, 1949.(8)Geneva
				ConventionsThe term Geneva Conventions means the
				international conventions signed at Geneva on August 12, 1949, including common
				Article 3.
										948b.Military
				commissions generally
										(a)PurposeThis
				chapter codifies and establishes procedures governing the use of military
				commissions to try unlawful enemy combatants for violations of the law of war
				and other offenses triable by military commissions. Although military
				commissions traditionally have been constituted by order of the President, the
				decision of the Supreme Court in Hamdan v. Rumsfeld makes it both necessary and
				appropriate to codify procedures for military commissions as set forth
				herein.
										(b)Rule of
				constructionThe procedures for military commissions set forth in
				this chapter are modeled after the procedures established for courts-martial in
				the Uniform Code of Military Justice. However, it would be neither desirable
				nor practicable to try unlawful enemy combatants by court-martial procedures.
				The trial of such persons by military commission presents new challenges that
				require that interpretations of this chapter not be unduly influenced by the
				rules and procedures developed for courts-martial. Therefore, no construction
				or application of chapter 47 of this title shall be binding in the construction
				or application of this chapter.
										(c)Alien unlawful
				enemy combatants may be tried for violations of the law of war and other
				offenses triable by military commissions committed against the United States or
				its cobelligerents before, on, or after September 11, 2001.
										(d)A military
				commission established under this chapter is a regularly constituted court,
				affording all the necessary judicial guarantees which are recognized as
				indispensable by civilized peoples for purposes of common Article 3 of
				the Geneva Conventions.
										948c.Persons
				subject to military commissionsAlien unlawful enemy combatants, as defined
				in section 948a of this title, shall be subject to trial by military
				commissions as set forth in this chapter.
									948d.Jurisdiction
				of military commissions
										(a)Military
				commissions shall have jurisdiction to try any offense made punishable under
				this chapter, when committed by an alien unlawful enemy combatant. Military
				commissions shall not have jurisdiction over lawful enemy combatants. Lawful
				enemy combatants who violate the law of war are subject to chapter 47 of this
				title. Courts-martial established under chapter 47 of this title shall have
				jurisdiction to try a lawful enemy combatant for any offense made punishable
				under this chapter.
										(b)Military
				commissions shall not have jurisdiction over any individual determined by the
				President or the Secretary of Defense (whether on an individualized or
				collective basis), or by any competent tribunal established under their
				authority, to be a protected person whose trial by these
				military commissions would be inconsistent with Articles 64–76 of the Geneva
				Convention Relative to the Protection of Civilian Persons in Time of War of
				August 12, 1949. Such persons shall be tried in courts-martial or other
				tribunals consistent with their status under the Geneva Conventions. For
				purposes of this section, the term protected person refers to the
				category of persons described in Article 4 of the Geneva Convention Relative to
				the Protected of Civilian Persons in Time of War of August 12, 1949.
										(c)Military
				commissions may, under such limitations as the Secretary of Defense may
				prescribe, adjudge any punishment not forbidden by this chapter, including the
				penalty of death where authorized by this chapter.
										IIComposition of
				military commissions

										Sec.
										948h. Who may convene military commissions.
										948i. Who may serve on military commissions.
										948j. Military judge of a military commission.
										948k. Detail of trial counsel and defense counsel.
										948l. Detail or employment of reporters and
				  interpreters.
										948m. Number of members; excuse of members; absent and
				  additional members.

									948h.Who may
				convene military commissions
										(a)The Secretary may
				issue orders convening military commissions to try individuals under this
				chapter.
										(b)The Secretary may
				delegate his authority to convene military commissions or to promulgate any
				regulations under this chapter.
										948i.Who may serve
				on military commissions
										(a)In
				generalAny commissioned officer of the United States armed
				forces on active duty is eligible to serve on a military commission. Eligible
				commissioned officers shall include, without limitation, reserve personnel on
				active duty, National Guard personnel on active duty in Federal service, and
				retired personnel recalled to active duty.
										(b)Detail of
				membersWhen convening a commission, the convening authority
				shall detail as members thereof such members of the armed forces as, in his
				opinion, are fully qualified for the duty by reason of age, education,
				training, experience, length of service, and judicial temperament. No member of
				an armed force shall be eligible to serve as a member of a commission when he
				is the accuser or a witness for the prosecution or has acted as an investigator
				or counsel in the same case.
										(c)Excuse of
				membersBefore a commission is assembled for the trial of a case,
				the convening authority may excuse a member of the commission from
				participating in the case.
										948j.Military
				judge of a military commission
										(a)Detail of a
				military judgeA military judge shall be detailed to each
				commission. The Secretary shall prescribe regulations providing for the manner
				in which military judges are detailed to such commissions. The military judge
				shall preside over each commission to which he has been detailed. The convening
				authority shall not prepare or review any report concerning the effectiveness,
				fitness, or efficiency of the military judge so detailed relating to his
				performance of duty as a military judge.
										(b)EligibilityA
				military judge shall be a commissioned officer of the armed forces who is a
				member of the bar of a Federal court or a member of the bar of the highest
				court of a State, and who is certified to be qualified for duty as a military
				judge by the Judge Advocate General of the armed force of which such military
				judge is a member. A commissioned officer who is certified to be qualified for
				duty as a military judge of a commission may perform such other duties as are
				assigned to him by or with the approval of that Judge Advocate General or his
				designee.
										(c)Ineligibility
				of certain individualsNo person is eligible to act as military
				judge in any case in which he is the accuser or a witness or has acted as
				investigator or a counsel in the same case.
										(d)Consultation
				with members; ineligibility to voteExcept as provided in section
				949d of this title, the military judge detailed to the commission may not
				consult with the members of the commission except in the presence of the
				accused, trial counsel, and defense counsel, nor may he vote with the members
				of the commission.
										948k.Detail of
				trial counsel and defense counsel
										(a)Detail of
				counsel generally(1)Trial counsel and
				military defense counsel shall be detailed for each commission.
											(2)Assistant trial counsel and assistant
				and associate military defense counsel may be detailed for each
				commission.
											(3)Military defense counsel shall be
				detailed as soon as practicable after the swearing of charges against the
				person accused.
											(4)The Secretary shall prescribe
				regulations providing for the manner in which counsel are detailed for military
				commissions and for the persons who are authorized to detail counsel for such
				military commissions.
											(b)Trial
				counselSubject to subsection (d), trial counsel detailed for a
				military commission under this chapter must be—
											(1)a judge advocate
				(as that term is defined in section 801 of this title) who is—
												(A)a graduate of an
				accredited law school or is a member of the bar of a Federal court or of the
				highest court of a State; and
												(B)certified as
				competent to perform duties as trial counsel before general courts-martial by
				the Judge Advocate General of the armed force of which he is a member;
				or
												(2)a civilian who
				is—
												(A)a member of the
				bar of a Federal court or of the highest court of a State; and
												(B)otherwise
				qualified to practice before the commission pursuant to regulations prescribed
				by the Secretary.
												(c)Military
				defense counselSubject to subsection (d), military defense
				counsel detailed for a military commission under this chapter must be a judge
				advocate (as so defined) who is—
											(1)a graduate of an
				accredited law school or a member of the bar of a Federal court or of the
				highest court of a State; and
											(2)certified as
				competent to perform duties as defense counsel before general courts-martial by
				the Judge Advocate General of the armed force of which he is a member.
											(d)Ineligibility
				of certain individualsNo person who has acted as an
				investigator, military judge, or member of a military commission under this
				chapter may act later as trial counsel or defense counsel in the same case. No
				person who has acted for the prosecution may act later in the same case for the
				defense, nor may any person who has acted for the defense act later in the same
				case for the prosecution.
										948l.Detail or
				employment of reporters and interpreters
										(a)Court
				reportersUnder such regulations as the Secretary may prescribe,
				the convening authority of a military commission shall detail or employ
				qualified court reporters, who shall record the proceedings of and testimony
				taken before that commission.
										(b)InterpretersUnder
				like regulations the convening authority may detail or employ interpreters who
				shall interpret for the commission, and, as necessary, for trial counsel and
				defense counsel.
										(c)Transcript;
				recordThe transcript shall be under the control of the convening
				authority, which is responsible for preparing the record of the
				proceedings.
										948m.Number of
				members; excuse of members; absent and additional members
										(a)Number of
				members(1)A
				military commission under this chapter shall, except as provided in paragraph
				(2), have at least 5 members.
											(2)In a case in which the death penalty
				is sought, the military commission shall have the number of members prescribed
				by section 949m(c) of this title.
											(b)Excuse of
				membersNo member of a military commission may be absent or
				excused after the commission has been assembled for the trial of the accused
				unless excused—
											(1)as a result of
				challenge;
											(2)by the military
				judge for physical disability or other good cause; or
											(3)by order of the
				convening authority for good cause.
											(c)Absent and
				additional membersWhenever a military commission is reduced
				below the requisite number of members, the trial may not proceed unless the
				convening authority details new members sufficient to provide not less than the
				requisite number. The trial may proceed with the new members present after the
				recorded evidence previously introduced before the members of the commission
				has been read to the commission in the presence of the military judge, the
				accused (except as provided by section 949d of this title), and counsel for
				both sides.
										IIIPre-trial
				procedure

										Sec.
										948q. Charges and specifications.
										948r. Compulsory self-incrimination prohibited; statements
				  obtained by torture.
										948s. Service of charges.

									948q.Charges and
				specifications
										(a)Charges and
				specificationsCharges and specifications against an accused
				shall be signed by a person subject to chapter 47 of this title under oath
				before a commissioned officer of the armed forces authorized to administer
				oaths and shall state—
											(1)that the signer
				has personal knowledge of, or reason to believe, the matters set forth therein;
				and
											(2)that they are
				true in fact to the best of his knowledge and belief.
											(b)Notice to
				accusedUpon the swearing of the charges and specifications in
				accordance with subsection (a), the accused shall be informed of the charges
				and specifications against him as soon as practicable.
										948r.Compulsory
				self-incrimination prohibited; statements obtained by torture
										(a)In
				generalNo person shall be required to testify against himself at
				a commission proceeding.
										(b)Statements
				obtained by tortureA statement obtained by use of torture, as
				defined in section 2340 of title 18, whether or not under color of law, shall
				not be admissible against the accused, except against a person accused of
				torture as evidence the statement was made.
										(c)Statements not
				obtained by tortureNo otherwise admissible statement may be
				received in evidence, including statements allegedly obtained by coercion, if
				the military judge finds that the circumstances under which the statement was
				made render it unreliable or lacking in probative value.
										948s.Service of
				charges The trial counsel
				assigned to the case shall cause to be served upon the accused and counsel a
				copy of the charges upon which trial is to be had in English and, if
				appropriate, in another language that the accused understands, sufficiently in
				advance of trial to prepare a defense.
									IVTrial
				procedure

										Sec.
										949a. Rules.
										949b. Unlawfully influencing action of military
				  commission.
										949c. Duties of trial counsel and defense counsel.
										949d. Sessions.
										949e. Continuances.
										949f. Challenges.
										949g. Oaths.
										949h. Former jeopardy.
										949i. Pleas of the accused.
										949j. Opportunity to obtain witnesses and other
				  evidence.
										949k. Defense of lack of mental responsibility.
										949l. Voting and rulings.
										949m. Number of votes required.
										949n. Military commission to announce action.
										949o. Record of trial.

									949a.Rules
										(a)ProceduresPre-trial,
				trial, and post-trial procedures, including elements and modes of proof, for
				cases triable by military commission under this chapter shall be prescribed by
				the Secretary, but may not be contrary to or inconsistent with this
				chapter.
										(b)Rules of
				evidenceSubject to such exceptions and limitations as the
				Secretary may provide by regulation, evidence in a military commission shall be
				admissible if the military judge determines that the evidence would have
				probative value to a reasonable person.
										(c)Hearsay
				evidenceHearsay evidence is admissible, unless the military
				judge finds that the circumstances render it unreliable or lacking in probative
				value, provided that the proponent of the evidence makes the evidence known to
				the adverse party in advance of trial or hearing.
										The military judge shall exclude
				any evidence the probative value of which is substantially outweighed by the
				danger of unfair prejudice, confusion of the issues, or misleading the members
				of the commission, or by considerations of undue delay, waste of time, or
				needless presentation of cumulative evidence.
										949b.Unlawfully
				influencing action of military commission
										(a)In
				general(1)No authority convening
				a military commission under this chapter may censure, reprimand, or admonish
				the commission or any member, military judge, or counsel thereof, with respect
				to the findings or sentence adjudged by the commission, or with respect to any
				other exercises of its or his functions in the conduct of the
				proceedings.
											(2)No person may attempt to coerce or,
				by any unauthorized means, influence the action of a commission or any member
				thereof, in reaching the findings or sentence in any case, or the action of any
				convening, approving, or reviewing authority with respect to his judicial
				acts.
											(3)The foregoing 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
												(B)statements and instructions given in
				open proceedings by the military judge or counsel.
												(b)Prohibition on
				consideration of actions on commission in evaluation of
				fitnessIn the preparation of an effectiveness, fitness, or
				efficiency report or any other report or document used in whole or in part for
				the purpose of determining whether a commissioned officer of the armed forces
				is qualified to be advanced, in grade, or in determining the assignment or
				transfer of any such officer or in determining 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
				counselThe trial counsel of a military commission shall
				prosecute in the name of the United States.
										(b)Defense
				counsel(1)The accused shall be
				represented in his defense before a military commission as provided in this
				subsection.
											(2)The accused shall be represented by
				military counsel detailed under section 948k of this title.
											(3)The accused may be represented by
				civilian counsel if retained by him, provided that civilian counsel—
												(A)is a United States citizen;
												(B)is admitted to the practice of law in
				a State, district, territory, or possession of the United States, or before a
				Federal court;
												(C)has not been the subject of any
				sanction of disciplinary action by any court, bar, or other competent
				governmental authority for relevant misconduct;
												(D)has been determined to be eligible for
				access to 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 during the proceedings.
												Civilian
				defense counsel shall protect any classified information received during the
				course of their representation of the accused in accordance with all applicable
				law governing the protection of classified information, and shall not divulge
				such information to any person not authorized to receive it.(4)If the accused is represented by
				civilian counsel, military counsel detailed shall act as associate
				counsel.
											(5)The accused is not entitled to be
				represented by more than one military counsel. However, the person authorized
				under regulations prescribed under section 948k of this title to detail counsel
				in his sole discretion may detail additional military counsel.
											(6)Defense counsel may crossexamine each
				witness for the prosecution who testifies before the commission.
											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,
				the military judge may call the commission into session without the presence of
				the members for the purpose of—
												(A)hearing and determining motions
				raising defenses or objections which are capable of determination without trial
				of the issues raised by a plea of not guilty;
												(B)hearing and ruling upon any matter
				which may be ruled upon by the military judge under this chapter, whether or
				not the matter is appropriate for later consideration or decision by the
				members of the commission;
												(C)if permitted by regulations of the
				Secretary, receiving the pleas of the accused; and
												(D)performing any other procedural
				function which may be performed by the military judge under this chapter or
				under rules prescribed pursuant to section 949a of this title and which does
				not require the presence of the members of the commission.
												(2)Except as provided in subsection (e),
				any proceedings under paragraph (1) shall be conducted in the presence of the
				accused, defense counsel, and trial counsel, and shall be made part of the
				record.
											(b)Proceedings in
				presence of accusedExcept as provided in subsections (c) and
				(e), all proceedings of a military commission under this chapter shall be in
				the presence of the accused, defense counsel, and trial counsel, and shall be
				made a part of the record.
										(c)Deliberations
				or vote of membersWhen the members of the commission deliberate
				or vote, only the members may be present.
										(d)Public
				proceedings(1)The military commission
				shall hold open and public proceedings.
											(2)The military judge may close to the
				public all or a part of the proceedings of a military commission under this
				chapter only upon making a specific finding that such closure is necessary
				to—
												(A)protect information the disclosure of
				which could reasonably be expected to cause identifiable damage to the public
				interest or the national security, including intelligence or law enforcement
				sources, methods, or activities; or
												(B)ensure the physical safety of
				individuals.
												(e)Limited
				exclusion of the accused for the protection of classified
				information(1)The military judge may,
				subject to the provisions of this subsection, permit the admission in a
				military commission under this chapter of classified information outside the
				presence of the accused.
											(2)The military judge shall not exclude
				the accused from any portion of the proceeding except upon a specific finding
				that extraordinary circumstances exist such that—
												(A)the exclusion of the accused—
													(i)is necessary to protect classified
				information the disclosure of which to the accused could reasonably be expected
				to cause identifiable damage to the national security, including intelligence
				or law enforcement sources, methods, or activities; or
													(ii)is necessary to ensure the
				physical safety of individuals; or
													(iii)is necessary to prevent
				disruption of the proceedings by the accused; and
													(B)the exclusion of the accused—
													(i)is no broader than necessary;
				and
													(ii)will not deprive the accused of a
				full and fair trial.
													(3)(A)A finding under
				paragraph (2) may be based upon a presentation, including an ex parte or in
				camera presentation, by either trial counsel or defense counsel.
												(B)Before trial counsel may make a
				presentation described in subparagraph (A) requesting the admission of
				classified evidence outside the presence of the accused, the head of the
				executive or military department or governmental agency which has control over
				the matter (after personal consideration by that officer) shall certify in
				writing to the military judge that—
													(i)the disclosure of such classified
				information to the accused could reasonably be expected to prejudice the
				national security; and
													(ii)such evidence has been declassified
				to the maximum extent possible, consistent with the requirements of national
				security.
													(4)(A)No evidence shall be
				admitted if the accused is not present for its admission or the evidence is not
				otherwise provided to the accused, unless the evidence is classified
				information and the military judge makes a specific finding that—
													(i)consideration of the evidence by the
				commission, without the presence of the accused, is warranted;
													(ii)admission of an unclassified summary
				or redacted version of that evidence would not be an adequate substitute and,
				in the case of testimony, alternative methods to obscure the identity of the
				witness are not adequate; and
													(iii)admission of the evidence would not
				deprive the accused of a full and fair trial.
													(B)If the accused is excluded from a
				portion of the proceeding, the accused shall be provided with a redacted
				transcript of the proceeding and, to the extent practicable, an unclassified
				summary of any evidence introduced. Under no circumstances shall such a summary
				or redacted transcript compromise the interests warranting the exclusion of the
				accused under this subsection.
												(5)(A)Military defense
				counsel shall be present and able to participate in all trial proceedings, and
				shall be given access to all evidence admitted under paragraph (4).
												(B)Civilian defense counsel shall be
				permitted to be present and to participate in all trial proceedings, and shall
				be given access to evidence admitted under paragraph (4), provided that
				civilian defense counsel has obtained the necessary security clearances and
				that such presence and access are consistent with regulations that the
				Secretary may prescribe to protect classified information.
												(C)Notwithstanding any other provision
				of law, any defense counsel who receives classified information admitted
				pursuant to paragraph (4) shall not be obligated to, and may not, disclose that
				evidence to the accused.
												(f)Admission of
				statements of accused(1)Notwithstanding any
				other provision in this chapter, no statement made by the accused during an
				interrogation, even if otherwise classified, may be admitted into evidence in a
				military commission under this chapter unless the accused is present for its
				admission or the evidence is otherwise provided to the accused.
											(2)For purposes of this subsection, a
				statement is a statement communicated knowingly and directly by
				the accused in response to questioning by foreign or United States military,
				intelligence, or criminal investigative personnel. This paragraph shall not be
				construed to prevent the redaction of intelligence sources or methods, which do
				not constitute statements of the accused, from any document provided to the
				accused or admitted into evidence.
											949e.ContinuancesThe military judge 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
				authorizedThe military judge and members of the commission may
				be challenged by the accused or the trial counsel for cause stated to the
				commission. The military judge shall determine the relevance and validity of
				the challenges for cause, and may not receive a challenge to more than one
				person at a time. Challenges by the trial counsel shall ordinarily be presented
				and decided before those by the accused are offered.
										(b)Peremptory
				challengesEach accused and the trial counsel is entitled to one
				peremptory challenge, but the military judge may not be challenged except for
				cause.
										(c)Challenges
				against additional membersWhenever additional members are
				detailed to the court, and after any challenges for cause against such
				additional members are presented and decided, each accused and the trial
				counsel are entitled to one peremptory challenge against members not previously
				subject to peremptory challenge.
										949g.
				Oaths
										(a)In
				general(1)Before performing their
				respective duties, military judges, members of commissions, trial counsel,
				defense counsel, reporters, and interpreters shall take an oath to perform
				their duties faithfully.
											(2)The form of the oath required by
				paragraph (1), the time and place of the taking thereof, the manner of
				recording the same, and whether the oath shall be taken for all cases in which
				these duties are to be performed or for a particular case, shall be as
				prescribed in regulations of the Secretary. These 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 duty; and
												(B)if such an oath is taken it need not
				again be taken at the time the judge advocate, or other person is detailed to
				that duty.
												(b)WitnessesEach
				witness before a military commission under this chapter shall be examined on
				oath.
										(c)Oath
				definedAs used in this section, oath includes an
				affirmation.
										949h. Former
				jeopardy
										(a)In
				generalNo person may, without his consent, be tried by a
				commission a second time for the same offense.
										(b)Scope of
				trialNo proceeding in which the accused has been found guilty by
				military commission upon any charge or specification is a trial in the sense of
				this section until the finding of guilty has become final after review of the
				case has been fully completed.
										949i. Pleas of the
				accused
										(a)Plea of not
				guiltyIf an accused after a plea of guilty sets up matter
				inconsistent with the plea, or if it appears that he has entered the plea of
				guilty through lack of understanding of its meaning and effect, or if he fails
				or refuses to plead, a plea of not guilty shall be entered in the record, and
				the commission shall proceed as though he had pleaded not guilty.
										(b)Finding of
				guilt after guilty pleaWith respect to any charge or
				specification to which a plea of guilty has been made by the accused and
				accepted by the military judge, a finding of guilty of the charge or
				specification may be entered immediately without a vote. This finding shall
				constitute the finding of the commission unless the plea of guilty is withdrawn
				prior to announcement of the sentence, in which event the proceedings shall
				continue as though the accused had pleaded not guilty.
										949j. Opportunity
				to obtain witnesses and other evidence
										(a)In
				general(1)Defense counsel in a
				military commission under this chapter shall have a reasonable opportunity to
				obtain witnesses and other evidence, including evidence in the possession of
				the United States, as specified in regulations prescribed by the
				Secretary.
											(2)Process issued in military
				commissions 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 lawfully issue;
				and
												(B)shall run to any place where the
				United States shall have jurisdiction thereof.
												(b)Treatment of
				certain itemsThe military judge in a military commission under
				this chapter may, upon a sufficient showing, authorize trial counsel in making
				documents available to the defense through discovery conducted pursuant to such
				rules as the Secretary shall prescribe—
											(1)to delete
				specified items of classified information from such documents;
											(2)to substitute an
				unclassified summary of the information for such classified documents;
				or
											(3)to substitute an
				unclassified statement admitting relevant facts that classified information
				would tend to prove.
											(c)Disclosure of
				exculpatory evidence(1)As soon as practicable,
				trial counsel in a military commission under this chapter shall disclose to the
				defense the existence of any evidence known to trial counsel that reasonably
				tends to exculpate the accused.
											(2)Exculpatory evidence that is
				classified may be provided solely to defense counsel, and not the accused,
				after in camera review by the military judge.
											(3)Before classified evidence may be
				withheld from the accused under this subsection, the executive or military
				department or governmental agency which has control over the matter shall
				ensure and shall certify in writing to the military judge that the disclosure
				of such evidence to the accused could reasonably be expected to prejudice the
				national security and that such evidence has been declassified to the maximum
				extent possible, consistent with the requirements of national security.
											(4)Any classified exculpatory evidence
				that is not disclosed to the accused under this subsection—
												(A)shall be provided to military defense
				counsel;
												(B)shall be provided to civilian defense
				counsel, provided that civilian defense counsel has obtained the necessary
				security clearances and access to such evidence is consistent with regulations
				that the Secretary may prescribe to protect classified information; and
												(C)shall be provided to the accused in a
				redacted or summary form, if it is possible to do so without compromising
				intelligence sources, methods, activities, or other national security
				interests.
												(5)Notwithstanding any other provision
				of law, any defense counsel who receives evidence under this subsection shall
				not be obligated to, and may not, disclose that evidence to the accused.
											949k.Defense of
				lack of mental responsibility
										(a)Affirmative
				defenseIt is an affirmative defense in a trial by military
				commission 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
				proofThe accused has the burden of proving the defense of lack
				of mental responsibility by clear and convincing evidence.
										(c)Findings
				following assertion of defenseWhenever lack of mental
				responsibility of the accused with respect to an offense is properly at issue,
				the military judge shall instruct the members of the commission as to the
				defense of lack of mental responsibility under this section and shall charge
				them to find the accused—
											(1)guilty;
											(2)not guilty;
				or
											(3)not guilty only
				by reason of lack of mental responsibility.
											(d)Majority vote
				required for findingThe accused shall be found not guilty only
				by reason of lack of mental responsibility under subsection (c)(3) only if a
				majority of the members of the commission 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 ballotVoting by members of a military commission on the
				findings and on the sentence shall be by secret written ballot.
										(b)Rulings(1)The military judge
				shall rule upon all questions of law, including the admissibility of evidence,
				and all interlocutory questions arising during the proceedings.
											(2)Any such ruling made by the military
				judge upon any question of law or any interlocutory question other than the
				factual issue of mental responsibility of the accused is conclusive and
				constitutes the ruling of the commission. However, the military judge may
				change his ruling at any time during the trial.
											(c)Instructions
				prior to voteBefore a vote is taken of the findings, the
				military judge shall, in the presence of the accused and counsel, instruct the
				members of the commission as to the elements of the offense and charge
				them—
											(1)that the accused
				must be presumed to be innocent until his guilt is established by legal and
				competent evidence beyond reasonable doubt;
											(2)that in the case
				being considered, if there is a reasonable doubt as to the guilt of the
				accused, the doubt must be resolved in favor of the accused and he must be
				acquitted;
											(3)that, if there is
				reasonable doubt as to the degree of guilt, the finding must be in a lower
				degree as to which there is no reasonable doubt; and
											(4)that the burden
				of proof to establish the guilt of the accused beyond a reasonable doubt is
				upon the United States.
											949m.Number of
				votes required
										(a)ConvictionNo
				person may be convicted of any offense, except as provided in section 949i(b)
				of this title or by concurrence of 2/3 of the members
				present at the time the vote is taken.
										(b)Sentences(1)Except as provided in
				paragraphs (2) and (3), sentences shall be determined by a military commission
				by the concurrence of 2/3 of the members present at the
				time the vote is taken.
											(2)No person may be sentenced to suffer
				death, except insofar as—
												(A)death has been expressly authorized
				under this chapter for an offense of which the accused has been found
				guilty;
												(B)the charges referred to the commission
				expressly sought the penalty of death;
												(C)the accused was convicted of the
				offense by the concurrence of all the members of the military commission
				present at the time the vote is taken; and
												(D)all members of the military commission
				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, except by the
				concurrence of 3/4 of the members 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 shall be not less than 12.
											(2)In any case described in paragraph
				(1) in which 12 members are not reasonably available because of physical
				conditions or military exigencies, the convening authority shall specify a
				lesser number of members for the military commission (but not fewer than 5
				members), and the military commission may be assembled and the trial held with
				not fewer than the number of members so specified. In such a case, the
				convening authority shall make a detailed written statement, to be appended to
				the record, stating why a greater number of members were not reasonably
				available.
											949n. Military
				commission to announce actionA military commission shall announce its
				findings and sentence to the parties as soon as determined.
									949o. Record of
				trial
										(a)Record;
				authenticationEach military commission shall keep a separate,
				substantially verbatim, record of the proceedings in each case brought before
				it, and the record shall be authenticated by the signature of the military
				judge. If the record cannot be authenticated by the military judge by reason of
				his death, disability, or absence, it shall be authenticated by the signature
				of the trial counsel or by that of a member of the commission if the trial
				counsel is unable to authenticate it by reason of his death, disability, or
				absence. Where appropriate, and as provided by regulation, the record of the
				military commission may contain a classified annex.
										(b)Complete record
				requiredA complete record of the proceedings and testimony shall
				be prepared in every military commission established under this chapter.
										(c)Provision of
				copy to accusedA copy of the record of the proceedings of each
				military commission shall be given to the accused as soon as it is
				authenticated. Where the record contains classified information, or a
				classified annex, the accused shall receive a redacted version of the record.
				The appropriate defense counsel shall have access to the unredacted record, as
				provided by regulation.
										VSentences

										Sec.
										949s. Cruel or unusual punishments prohibited.
										949t. Maximum limits.
										949u. Execution of confinement.

									949s.Cruel or
				unusual punishments prohibitedPunishment by flogging, or by branding,
				marking, or tattooing on the body, or any other cruel or unusual punishment,
				may not be adjudged by a military commission or inflicted upon any person
				subject to this chapter. The use of irons, single or double, except for the
				purpose of safe custody, is prohibited.
									949t. Maximum
				limitsThe punishment which a
				military commission may direct for an offense may not exceed such limits as the
				President or Secretary may prescribe for that offense.
									949u.Execution of
				confinement
										(a)In
				generalUnder such regulations as the Secretary may prescribe, a
				sentence of confinement adjudged by a military commission may be carried into
				execution by confinement—
											(1)in any place of
				confinement under the control of any of the armed forces; or
											(2)in any penal or
				correctional institution under the control of the United States or its allies
				or which the United States may be allowed to use.
											(b)Treatment
				during confinement by other than the armed forcesPersons
				confined under subsection (a)(2) in a penal or correctional institution not
				under the control of one of the armed forces are subject to the same discipline
				and treatment as persons confined or committed by the courts of the United
				States or of the State, Territory, District of Columbia, or place in which the
				institution is situated.
										VIPost-trial
				procedure and review of military commissions

										Sec.
										950a. Error of law; lesser included offense.
										950b. Review by the convening authority.
										950c. Waiver or withdrawal of appeal.
										950d. Appeal by the United States.
										950e. Rehearings.
										950f. Review by Court of Military Commission
				  review.
										950g. Review by the United States Court of Appeals for the
				  District of Columbia Circuit and the Supreme Court of the United
				  States.
										950h. Appellate counsel.
										950i. Execution of sentence; suspension of
				  sentence.
										950j. Finality of proceedings, findings, and
				  sentences.

									950a.Error of law;
				lesser included offense
										(a)Error of
				lawA finding or sentence of a military commission may not be
				held incorrect on the ground of an error of law unless the error materially
				prejudices the substantial rights of the accused.
										(b)Lesser included
				offenseAny reviewing authority with the power to approve or
				affirm a finding of guilty may approve or affirm, instead, so much of the
				finding as includes a lesser included offense.
										950b.Review by the
				convening authority
										(a)Notice to
				convening authority of findings and sentenceThe findings and
				sentence of a military commission under this chapter shall be reported in
				writing promptly to the convening authority after the announcement of the
				sentence.
										(b)Submittal of
				matters by accused to convening authority(1)The accused may submit
				to the convening authority matters for consideration by the convening authority
				with respect to the findings and the sentence of the military commission under
				this chapter.
											(2)(A)Except as provided in
				subparagraph (B), a submittal under paragraph (1) shall be made in writing
				within 20 days after the accused has been given an authenticated record of
				trial under section 949o(c) of this title.
												(B)If the accused shows that additional
				time is required for the accused to make a submittal under paragraph (1), the
				convening authority, for good cause, may extend the applicable period under
				subparagraph (A) for not more than an additional 20 days.
												(3)The accused may waive his right to
				make a submission to the convening authority under paragraph (1). Such a waiver
				must be made in writing and may not be revoked. For the purposes of subsection
				(c)(2), the time within which the accused may make a submission under this
				subsection shall be deemed to have expired upon the submission of such a waiver
				to the convening authority.
											(c)Action by the
				convening authority(1)The authority under
				this section to modify the findings and sentence of a military commission under
				this chapter is a matter of the sole discretion and prerogative of the
				convening authority.
											(2)(A)Action on the sentence
				of a military commission shall be taken by the convening authority.
												(B)Subject to regulations of the
				Secretary, such action may be taken only after consideration of any matters
				submitted by the accused under subsection (b) or after the time for submitting
				such matters expires, whichever is earlier.
												(C)In taking action under this
				paragraph, the convening authority, in his sole discretion, may approve,
				disapprove, commute, or suspend the sentence in whole or in part. The convening
				authority may not increase the sentence beyond that which is found by the
				commission.
												(3)Action on the findings of a military
				commission by the convening authority is not required. However, the convening
				authority, in his sole discretion, may—
												(A)dismiss any charge or specification by
				setting aside a finding of guilty thereto; or
												(B)change a finding of guilty to a charge
				to a finding of guilty to an offense that is a lesser included offense of the
				offense stated in the charge.
												(4)The convening authority shall serve
				on the accused or on defense counsel notice of any action taken by the
				convening authority under this subsection.
											(d)Order of
				revision or rehearing(1)Subject to paragraphs
				(2) and (3), the convening authority, in his sole discretion, may order a
				proceeding in revision or a rehearing.
											(2)(A)Except as provided in
				subparagraph (B), a proceeding in revision may be ordered if—
													(i)there is an apparent error or omission
				in the record; or
													(ii)the record shows improper or
				inconsistent action by a military commission with respect to the findings or
				sentence that can be rectified without material prejudice to the substantial
				rights of the accused.
													(B)In no case may a proceeding in
				revision—
													(i)reconsider a finding of not guilty of
				any specification or a ruling which amounts to a finding of not guilty;
													(ii)reconsider a finding of not guilty of
				any charge, unless there has been a finding of guilty under a specification
				laid under that charge, which sufficiently alleges a violation; and
													(iii)increase the severity of the
				sentence unless the sentence prescribed for the offense is mandatory.
													(3)A rehearing may be ordered by the
				convening authority if he disapproves the findings and sentence and states the
				reasons for disapproval of the findings. If such a person disapproves the
				findings and sentence and does not order a rehearing, he shall dismiss the
				charges. A rehearing as to the findings may not be ordered where there is a
				lack of sufficient evidence in the record to support the findings. A rehearing
				as to the sentence may be ordered if the convening authority disapproves the
				sentence.
											950c.Waiver or
				withdrawal of appeal
										(a)Waiver of right
				of review(1)In each case subject to
				appellate review under section 950f and 950g of this title, except a case in
				which the sentence as approved under section 950b of this title includes death,
				the accused may file with the convening authority a statement expressly waiving
				the right of the accused to such review.
											(2)A waiver under paragraph (1) shall be
				signed by both the accused and by a defense counsel.
											(3)A waiver under paragraph (1) must be
				filed, if at all, within 10 days after notice on the action is served on the
				accused under section 950b(c)(4) of this title. The convening authority, for
				good cause, may extend the period for such filing by not more than 30
				days.
											(b)Withdrawal of
				appealExcept in a case in which the sentence as approved under
				section 950b of this title includes death, the accused may withdraw an appeal
				at any time.
										(c)Effect of
				waiver or withdrawalA waiver of the right to appellate review or
				the withdrawal of an appeal under this section bars review under section 950f
				or 950g of this title.
										950d.Appeal by the
				United States
										(a)Interlocutory
				appeal(1)Except as provided in
				paragraph (2), in a trial by military commission under this chapter, the United
				States may take an interlocutory appeal to the Court of Military Commission
				Review of any order or ruling of the military judge that—
												(A)terminates commission proceedings with
				respect to a charge or specification;
												(B)excludes evidence that is substantial
				proof of a fact material in the proceeding; or
												(C)relates to a matter under subsection
				(d), (e), or (f) of section 949d of this title.
												(2)The United States may not appeal
				under paragraph (1) an order or ruling that is, or amounts to, a finding of not
				guilty by the commission with respect to the charge or specification.
											(b)Notice of
				appealThe United States shall take an appeal of an order or
				ruling under subsection (a) by filing a notice of appeal with the military
				judge within 5 days after the date of such order or ruling.
										(c)AppealAn
				appeal under this section shall be forwarded by means prescribed under
				regulations of the Secretary directly to the Court of Military Commission
				Review. In ruling on an appeal under this section, the Court of Military
				Commission Review may act only with respect to matters of law.
										(d)Court of
				appealsThe United States may appeal an adverse ruling under
				subsection (c) to the United States Court of Appeals for the District of
				Columbia Circuit by filing a petition for review in the Court of Appeals within
				10 days after the date of such ruling. Review under this subsection shall be at
				the discretion of the Court of Appeals.
										950e.Rehearings
										(a)Composition of
				military commission for rehearingEach rehearing under this
				chapter shall take place before a military commission composed of members not
				members of the commission which first heard the case.
										(b)Scope of
				rehearing(1)Upon a
				rehearing—
												(A)the accused may not be tried for any
				offense of which he was found not guilty by the first commission; and
												(B)no sentence in excess of or more than
				the original sentence may be imposed unless—
													(i)the sentence is based upon a
				finding of guilty of an offense not considered upon the merits in the original
				proceedings; or
													(ii)unless the sentence prescribed for
				the offense is mandatory.
													(2)Upon a rehearing, if the sentence
				approved after the first 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 pre-trial agreement was based, or
				otherwise does not comply with pre-trial agreement, the sentence as to those
				charges or specifications may include any punishment not in excess of that
				lawfully adjudged at the first commission.
											950f.Review by
				Court of Military Commission Review
										(a)Court
				established(1)The Secretary shall
				establish a Court of Military Commission Review which shall be composed of 1 or
				more panels, and each such panel shall be composed of not less than three
				appellate military judges.
											(2)For the purpose of reviewing military
				commission decisions, the court may sit in panels or as a whole in accordance
				with rules prescribed by the Secretary.
											(b)Composition of
				the court(1)The Secretary shall
				assign appellate military judges to a Court of Military Commission
				Review.
											(2)Each appellate military judge shall
				meet the qualifications for military judges prescribed by section 948j(b) of
				this title or shall be a civilian with comparable qualifications.
											(3)No person may be appointed to serve
				as an appellate military judge in any case in which that person acted as a
				military judge, counsel, or reviewing official.
											(c)Right of
				appealThe accused may appeal from the final decision of a
				military commission, and the United States may appeal as provided in section
				950d of this title, to the Court of Military Commission Review in accordance
				with procedures prescribed under regulations of the Secretary.
										(d)Scope of
				reviewIn ruling on an appeal under this section, the Court of
				Military Commission Review may act only with respect to matters of law.
										950g.Review by the
				United States Court of Appeals for the District of Columbia Circuit and the
				Supreme Court of the United States
										(a)In
				general(1)(A)Except as provided in
				subparagraph (B), the United States Court of Appeals for the District of
				Columbia Circuit shall have exclusive jurisdiction to determine the validity of
				a final judgment rendered by a military commission, pursuant to Section
				1005(e)(3) of the Detainee Treatment Act of 2005.
												(B)The Court of Appeals shall not review
				the final judgment until all other appeals under this chapter have been waived
				or exhausted.
												(2)A petition for review must be filed
				by the accused in the Court of Appeals by no longer than 20 days from the
				earlier of when—
												(A)written notice of the final decision
				of the Court of Military Commission Review is served on the accused or on
				defense counsel; or
												(B)the accused submits, in the form
				prescribed by section 950c of this title, a written notice waiving his right to
				appeal under section 950f of this title.
												(b)Review by
				Supreme CourtThe Supreme Court of the United States may review
				by writ of certiorari the final judgment of the Court of Appeals pursuant to
				section 1257 of title 28, United States Code.
										950h.Appellate
				counsel
										(a)AppointmentThe
				Secretary shall, by regulation, establish procedures for the appointment of
				appellate counsel for the United States and for the accused in military
				commissions under this chapter. Appellate counsel shall meet the qualifications
				for appearing before military commissions under this chapter.
										(b)Representation
				of United StatesAppellate counsel may represent the United
				States in any appeal or review proceeding under this chapter. Appellate
				Government counsel may represent the United States before the Supreme Court in
				cases arising under this chapter when requested to do so by the Attorney
				General.
										(c)Representation
				of accusedThe accused shall be represented by appellate military
				counsel before the Court of Military Commission Review, the United State Court
				of Appeals for the District of Columbia Circuit, or the Supreme Court, or by
				civilian counsel if retained by him.
										950i.Execution of
				sentence; suspension of sentence
										(a)Execution of
				sentence of death only upon approval by the PresidentIf the
				sentence of a military commission under this chapter extends to death, that
				part of the sentence providing for death may not be executed until approved by
				the President. In such a case, the President may commute, remit, or suspend the
				sentence, or any part thereof, as he sees fit.
										(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 judgment as to the legality of the
				proceedings (and with respect to death, approval under subsection (a)).
											(2)A judgment as to legality of the
				proceedings is final for purposes of paragraph (1) when—
												(A)review is completed by the Court of
				Military Commission Review and—
													(i)the time for the accused to file a
				petition for review by the Court of Appeals for the District of Columbia
				Circuit has expired;
													(ii)the accused has not filed a timely
				petition for such review; and
													(iii)the case is not otherwise under
				review by that Court; or
													(B)review is completed in accordance with
				the judgment of the Court of Appeals for the District of Columbia Circuit
				and—
													(i)a petition for a writ of certiorari
				is not timely filed;
													(ii)such a petition is denied by the
				Supreme Court; or
													(iii)review is otherwise completed in
				accordance with the judgment of the Supreme Court.
													(c)Suspension of
				sentencesThe Secretary, or the convening authority acting on the
				case (if other than the Secretary), may suspend the execution of any sentence
				or part thereof in the case, except a sentence of death.
										950j.Finality of
				proceedings, findings, and sentences
										(a)FinalityThe
				appellate review of records of trial provided by this chapter, the proceedings,
				findings, and sentences of military commissions as approved, reviewed, or
				affirmed as required by this chapter, are final and conclusive. Orders
				publishing the proceedings of military commissions are binding upon all
				departments, courts, agencies, and officers of the United States, subject only
				to the authority of the President.
										(b)Provisions of
				chapter sole basis for review of military commission procedures and
				actionsExcept as otherwise provided in this chapter, and
				notwithstanding any other law (including section 2241 of title 28 or any other
				habeas corpus provision), no court, justice, or judge shall have jurisdiction
				to hear or consider any claim or cause of action whatsoever, including any
				action pending on or filed after the date of enactment of this chapter,
				relating to the prosecution, trial, or judgment of a military commission
				convened under this section, including challenges to the lawfulness of the
				procedures of military commissions under this chapter.
										VIIPunitive
				matters

										Sec.
										950p. Substantive offenses generally.
										950q. Principals.
										950r. Accessory after the fact.
										950s. Conviction of lesser offenses.
										950t. Attempts.
										950u. Solicitation.
										950v. Crimes triable by military commission.
										950w. Perjury and obstruction of justice.
										950x. Contempt.

									950p.Substantive
				offenses generally
										(a)PurposeThe
				following provisions codify offenses that have traditionally been triable by
				military commissions. This chapter does not establish new crimes that did not
				exist before its establishment, but rather codifies those crimes for trial by
				military commission.
										(b)EffectBecause
				these provisions are declarative of existing law, they do not preclude trial
				for crimes that occurred prior to their effective date.
										950q.PrincipalsAny person is punishable as a principal
				under this chapter who—
										(1)commits an
				offense punishable by this chapter, or aids, abets, counsels, commands, or
				procures its commission;
										(2)causes an act to
				be done which if directly performed by him would be punishable by this chapter;
				or
										(3)is a superior
				commander who, with regard to acts punishable under this chapter, knew, had
				reason to know, or should have known, that a subordinate was about to commit
				such acts or had done so and the superior failed to take the necessary and
				reasonable measures to prevent such acts or to punish the perpetrators
				thereof.
										950r.Accessory
				after the factAny 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 may direct.
									950s.Conviction of
				lesser offensesAn accused may
				be found guilty of an offense necessarily included in the offense charged or of
				an attempt to commit either the offense charged or an offense necessarily
				included therein.
									950t.Attempts
										(a)In
				generalAny person subject to this chapter who attempts to commit
				any offense punishable by this chapter shall be punished as a military
				commission may direct.
										(b)Scope of
				offenseAn 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
				consummationAny 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.SolicitationAny person subject to this chapter who
				solicits or advises another or others to commit one or more substantive
				offenses triable by military commission shall, if the offense solicited or
				advised is attempted or committed, be punished with the punishment provided for
				the commission of the offense, but, if the offense solicited or advised is not
				committed or attempted, he shall be punished as a military commission may
				direct.
									950v.Crimes
				triable by military commission
										(a)Definitions and
				construction(1)For purposes of this
				chapter, the term military objective refers to combatants and
				those objects during an armed conflict which, by their nature, location,
				purpose, or use, effectively contribute to the opposing force’s war-fighting or
				war-sustaining capability 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 the attack.
											(2)For purposes of this section only,
				protected person refers to any person entitled to protection under
				one or more of the Geneva Conventions, including civilians not taking an active
				part in hostilities, military personnel placed hors de combat by sickness,
				wounds, or detention, and military medical or religious personnel.
											(3)For purposes of this chapter, the
				term protected property refers to property specifically protected
				by the law of war such as buildings dedicated to religion, education, art,
				science or charitable purposes, historic monuments, hospitals, or places where
				the sick and wounded are collected, provided they are not being used for
				military purposes or are not otherwise military objectives. Such property would
				include objects properly identified by one of the distinctive emblems of the
				Geneva Conventions but does not include all civilian property.
											(4)The intent required for offenses (1),
				(2), (3), (4), and (12) under subsection (b) precludes their applicability with
				regard to collateral damage or to death, damage, or injury incident to a lawful
				attack.
											(b)OffensesThe
				following enumerated offenses, when committed in the context of and associated
				with armed conflict, shall be triable by military commission under this chapter
				at any time without limitation:
											(1)Murder of
				protected personsAny person who intentionally kills one or more
				protected persons is guilty of the offense of intentionally killing protected
				persons and shall be subject to whatever punishment the commission may direct,
				including the penalty of death.
											(2)Attacking
				civiliansAny person who intentionally engages in an attack upon
				a civilian population as such or individual civilians not taking active part in
				hostilities is guilty of the offense of attacking civilians and shall be
				subject to whatever punishment the commission may direct, including, if death
				results to one or more of the victims, the penalty of death.
											(3)Attacking
				civilian objectsAny person who intentionally engages in an
				attack upon civilian objects (property that is not a military objective) shall
				be guilty of the offense of attacking civilian objects and shall be subject to
				whatever punishment the commission may direct.
											(4)Attacking
				protected propertyAny person who intentionally engages in an
				attack upon protected property shall be guilty of the offense of attacking
				protected property and shall be subject to whatever punishment the commission
				may direct.
											(5)PillagingAny
				person who intentionally and in the absence of military necessity appropriates
				or seizes property for private or personal use, without the consent of a person
				with authority to permit such appropriation or seizure, shall be guilty of the
				offense of pillaging and shall be subject to whatever punishment the commission
				may direct.
											(6)Denying
				quarterAny person who, with effective command or control over
				subordinate groups, declares, orders, or otherwise indicates to those forces
				that there shall be no survivors or surrender accepted, with the intent
				therefore to threaten an adversary or to conduct hostilities such that there
				would be no survivors or surrender accepted, shall be guilty of denying quarter
				and shall be subject to whatever punishment the commission may direct.
											(7)Taking
				hostagesAny person who, having knowingly seized or detained one
				or more persons, threatens to kill, injure, or continue to detain such person
				or persons with the intent of compelling any nation, person other than the
				hostage, or group of persons to act or refrain from acting as an explicit or
				implicit condition for the safety or release of such person or persons, shall
				be guilty of the offense of taking hostages and shall be subject to whatever
				punishment the commission may direct, including, if death results to one or
				more of the victims, the penalty of death.
											(8)Employing
				poison or analogous weaponsAny person who intentionally, as a
				method of warfare, employs a substance or a weapon that releases a substance
				that causes death or serious and lasting damage to health in the ordinary
				course of events, through its asphyxiating, bacteriological, or toxic
				properties, shall be guilty of employing poison or analogous weapons and shall
				be subject to whatever punishment the commission may direct, including, if
				death results to one or more of the victims, the penalty of death.
											(9)Using protected
				persons as shieldsAny person who positions, or otherwise takes
				advantage of, a protected person with the intent to shield a military objective
				from attack or to shield, favor, or impede military operations, shall be guilty
				of the offense of using protected persons as shields and shall be subject to
				whatever punishment the commission may direct, including, if death results to
				one or more of the victims, the penalty of death.
											(10)Using
				protected property as shieldsAny person who positions, or
				otherwise takes advantage of the location of, protected property under the law
				of war with the intent to shield a military objective from attack or to shield,
				favor, or impede military operations, shall be guilty of the offense of using
				protected property as shields and shall be subject to whatever punishment the
				commission may direct.
											(11)TortureAny
				person who commits an act specifically intended to inflict severe physical or
				mental pain or suffering (other than pain or suffering incidental to lawful
				sanctions) upon another person within his custody or physical control for the
				purpose of obtaining information or a confession, punishment, intimidation,
				coercion, or any reason based on discrimination of any kind, shall be guilty of
				torture and subject to whatever punishment the commission may direct,
				including, if death results to one or more of the victims, the penalty of
				death. The term severe mental pain or suffering has the meaning
				provided in paragraph (2) of section 2340 of title 18.
											(12)Cruel or
				inhuman treatmentAny person who commits an act intended to
				inflict severe physical or mental pain or suffering (other than pain or
				suffering incidental to lawful sanctions), including severe physical abuse,
				upon another person within his custody or physical control shall be guilty of
				cruel or inhuman treatment and subject to whatever punishment the commission
				may direct, including, if death results to one or more of the victims, the
				penalty of death. The term severe mental pain or suffering has the
				meaning provided in paragraph (2) of section 2340 of title 18.
											(13)Intentionally
				causing serious bodily injuryAny person who intentionally causes
				serious bodily injury to one or more persons, including lawful combatants, in
				violation of the law of war shall be guilty of the offense of causing serious
				bodily injury and shall be subject to whatever punishment the commission may
				direct, including, if death results to one or more of the victims, the penalty
				of death. The term serious bodily injury has the meaning provided
				in subsection (b)(2) of section 113 of title 18.
											(14)Mutilating or
				maimingAny person who intentionally injures one or more
				protected persons, by disfiguring the person or persons by any mutilation
				thereof or by permanently disabling any member, limb, or organ of his body,
				without any legitimate medical or dental purpose, shall be guilty of the
				offense of mutilation or maiming and shall be subject to whatever punishment
				the commission may direct, including, if death results to one or more of the
				victims, the penalty of death.
											(15)Murder in
				violation of the law of warAny person who intentionally kills
				one or more persons, including lawful combatants, in violation of the law of
				war shall be guilty of the offense of murder in violation of the law of war and
				shall be subject to whatever punishment the commission may direct, including
				the penalty of death.
											(16)Destruction of
				property in violation of the law of warAny person who
				intentionally destroys property belonging to another person in violation of the
				law of war shall be guilty of the offense of destruction of property in
				violation of the law of war and shall be subject to whatever punishment the
				commission may direct.
											(17)Using
				treachery or perfidyAny person who, after inviting the
				confidence or belief of one or more persons that they were entitled to, or
				obliged to accord, protection under the law of war, intentionally makes use of
				that confidence or belief in killing, injuring, or capturing such person or
				persons, shall be guilty of using treachery or perfidy and shall be subject to
				whatever punishment the commission may direct.
											(18)Improperly
				using a flag of truceAny person who uses a flag of truce to
				feign an intention to negotiate, surrender, or otherwise to suspend hostilities
				when there is no such intention, shall be guilty of improperly using a flag of
				truce and shall be subject to whatever punishment the commission may
				direct.
											(19)Improperly
				using a distinctive emblemAny person who intentionally uses a
				distinctive emblem recognized by the law of war for combatant purposes in a
				manner prohibited by the law of war shall be guilty of improperly using a
				distinctive emblem and shall be subject to whatever punishment the commission
				may direct.
											(20)Intentionally
				mistreating a dead bodyAny person who intentionally mistreats
				the body of a dead person, without justification by legitimate military
				necessary, shall be guilty of the offense of mistreating a dead body and shall
				be subject to whatever punishment the commission may direct.
											(21)RapeAny
				person who forcibly or with coercion or threat of force wrongfully invades the
				body of a person by penetrating, however slightly, the anal or genital opening
				of the victim with any part of the body of the accused or with any foreign
				object shall be guilty of the offense of rape and shall be subject to whatever
				punishment the commission may direct.
											(22)Hijacking or
				hazarding a vessel or aircraftAny person subject to this chapter
				who intentionally seizes, exercises unauthorized control over, or endangers the
				safe navigation of, a vessel or aircraft that was not a legitimate military
				target is guilty of the offense of hijacking or hazarding a vessel or aircraft
				and shall be subject to whatever punishment the commission may direct,
				including, if death results to one or more of the victims, the penalty of
				death.
											(23)TerrorismAny
				person subject to this chapter who intentionally kills or inflicts great bodily
				harm on one or more persons, or intentionally engages in an act that evinces a
				wanton disregard for human life, in a manner calculated to influence or affect
				the conduct of government or civilian population by intimidation or coercion,
				or to retaliate against government conduct, shall be guilty of the offense of
				terrorism and shall be subject to whatever punishment the commission may
				direct, including, if death results to one or more of the victims, the penalty
				of death.
											(24)Providing
				material support for terrorismAny person who provides material
				support or resources, knowing or intending that they are to be used in
				preparation for, or in carrying out, an act of terrorism (as defined in
				subsection (b)(23)), or who intentionally provides material support or
				resources to an international terrorist organization engaged in hostilities
				against the United States, knowing that such organization has engaged or
				engages in terrorism (as defined in subsection (b)(23)), shall be guilty of the
				offense of providing material support for terrorism and shall be subject to
				whatever punishment the commission may direct. The term material support
				or resources has the meaning provided in subsection (b) of section 2339A
				of title 18.
											(25)Wrongfully
				aiding the enemyAny person who, in breach of an allegiance or
				duty to the United States, knowingly and intentionally aids an enemy of the
				United States or one its cobelligerents shall be guilty of the offense of
				wrongfully aiding the enemy and shall be subject to whatever punishment the
				commission may direct.
											(26)SpyingAny
				person who, with intent or reason to believe that it is to be used to the
				injury of the United States or to the advantage of a foreign power, collects or
				attempts to collect certain information by clandestine means or while acting
				under false pretenses, for the purpose of conveying such information to an
				enemy of the United States or one of its cobelligerents, shall be guilty of the
				offense of spying and shall be subject to whatever punishment the commission
				may direct, including the penalty of death.
											(27)ConspiracyAny
				person who conspires to commit one or more substantive offenses triable under
				this section, and who knowingly does any overt act to effect the object of the
				conspiracy, shall be guilty of conspiracy and shall be subject to whatever
				punishment the commission may direct, including, if death results to one or
				more of the victims, the penalty of death.
											950w.Perjury and
				obstruction of justiceThe
				military commissions also may try offenses and impose punishments for perjury,
				false testimony, or obstruction of justice related to military
				commissions.
									950x.ContemptA military commission may punish for
				contempt any person who uses any menacing word, sign, or gesture in its
				presence, or who disturbs its proceedings by any riot or
				disorder.
									.
					(2)Tables of
			 chapters amendmentsThe tables of chapters at the beginning of
			 subtitle A and part II of subtitle A of title 10, United States Code, are each
			 amended by inserting after the item relating to chapter 47 the following new
			 item:

								CHAPTER 47A—MILITARY
				COMMISSIONS
								SUBCHAPTER I—GENERAL
				PROVISIONS
								SUBCHAPTER II—COMPOSITION OF
				COURTS-MARTIAL
								SUBCHAPTER III—PRE-TRIAL
				PROCEDURE
								SUBCHAPTER IV—TRIAL
				PROCEDURE
								SUBCHAPTER
				V—SENTENCES
								SUBCHAPTER VI—POST-TRIAL
				PROCEDURE AND REVIEW OF MILITARY COMMISSIONS
								SUBCHAPTER VII—PUNITIVE
				MATTERS

							.
					(b)Submittal of
			 procedures to Congress
					(1)Submittal of
			 proceduresNot later than 90 days after the date of the enactment
			 of this Act, the Secretary shall submit to the Committees on Armed Forces of
			 the Senate and the House of Representatives a report setting forth the
			 procedures for military commissions prescribed under chapter 47A of title 10,
			 United States Code (as added by subsection (a)).
					(2)Submittal of
			 modificationsNot later than 60 days before the date on which any
			 proposed modification of the procedures described in paragraph (1) shall go
			 into effect, the Secretary shall submit to the committees of Congress referred
			 to in that paragraph a report describing such modifications.
					105.Judicial
			 reviewSection 2241 of title
			 28, United States Code, is amended by replacing subsection (e) with the
			 following:

					(e)Except as
				provided for in this subsection, and notwithstanding any other law, no court,
				justice, or judge shall have jurisdiction to hear or consider any claim or
				cause of action, including an application for a writ of habeas corpus, pending
				on or filed after the date of enactment of this subsection, against the United
				States or its agents, brought by or on behalf of any alien detained by the
				United States as an unlawful enemy combatant, relating to any aspect of the
				alien’s detention, transfer, treatment, or conditions of confinement:
						(1)Combatant
				status review tribunalsThe United States Court of Appeals for
				the District of Columbia Circuit shall have exclusive jurisdiction to determine
				the validity of any final decision of a Combatant Status Review Tribunal. The
				scope of such review is defined in section 1005(e)(2) of the Detainee Treatment
				Act of 2005. If the Court grants a detainee’s petition for review, the
				Department of Defense may conduct a new Combatant Status Review
				Tribunal.
						(2)Military
				commissionsReview shall be had only of final judgments of
				military commissions as provided for pursuant to section 247 of the Military
				Commissions Act of 2006.
						(3)Information
				consideredThe court may consider classified information
				submitted in camera and ex parte in making any determination under this
				section.
						.
			106.Satisfaction
			 of treaty obligations
				(a)In
			 generalSatisfaction of the prohibitions against cruel, inhuman,
			 and degrading treatment set forth in section 1003 of the Detainee Treatment Act
			 of 2005 (title X of Public Law 109–148; 119 Stat. 2739; 42 U.S.C. 2000dd) shall
			 fully satisfy United States obligations with respect to the standards for
			 detention and treatment established by section 1 of common Article 3 of the
			 Geneva Conventions, with the exception of the obligations imposed by sections
			 1(b) and 1(d) of such Article.
				(b)Rights not
			 judicially enforceable
					(1)In
			 generalNo person in any habeas action or any other action may
			 invoke the Geneva Conventions or any protocols thereto as a source of rights,
			 whether directly or indirectly, for any purpose in any court of the United
			 States or its States or territories.
					(2)ConstructionParagraph
			 (1) may not be construed to affect the obligations of the United States under
			 the Geneva Conventions.
					(c)Geneva
			 conventions definedIn this section, the term Geneva
			 Conventions means the international conventions signed at Geneva on
			 August 12, 1949, including common Article 3.
				107.War Crimes Act
			 amendmentSection 2441 of
			 title 18, United States Code, is amended by replacing subsection (c)(3) with
			 the following:

					(3)which constitutes
				any of the following serious violations of common Article 3 of the
				international conventions signed at Geneva on August 12, 1949, when committed
				in the context of and in association with an armed conflict not of an
				international character:
						(A)TortureAny
				person who commits, or conspires or attempts to commit, an act specifically
				intended to inflict severe physical or mental pain or suffering (other than
				pain or suffering incidental to lawful sanctions) upon another person within
				his custody or physical control for the purpose of obtaining information or a
				confession, punishment, intimidation, coercion, or any reason based on
				discrimination of any kind, shall be guilty of a violation of this subsection.
				The term severe mental pain or suffering has the meaning provided
				in paragraph (2) of section 2340 of this title.
						(B)Cruel or
				inhuman treatmentAny person who commits, or conspires or
				attempts to commit, an act intended to inflict severe physical or mental pain
				or suffering (other than pain or suffering incidental to lawful sanctions),
				including severe physical abuse, upon another person within his custody or
				physical control shall be guilty of a violation of this subsection. The term
				severe mental pain or suffering has the meaning provided in
				paragraph (2) of section 2340 of this title.
						(C)Performing
				biological experimentsAny person who subjects, or conspires or
				attempts to subject, one or more persons within his custody or physical control
				to biological experiments without a legitimate medical purpose and in so doing
				endangers the body or health of such person or persons shall be guilty of a
				violation of this subsection.
						(D)MurderAny
				person who intentionally kills, or conspires or attempts to kill, or kills
				whether intentionally or unintentionally in the course of committing any other
				offense under this section, one or more persons taking no active part in the
				hostilities, including those placed hors de combat by sickness, wounds,
				detention, or any other cause, shall be guilty of a violation of this
				subsection. The intent required for this offense precludes its applicability
				with regard to collateral damage or to death, damage, or injury incident to a
				lawful attack.
						(E)Mutilation or
				maimingAny person who intentionally injures, or conspires or
				attempts to injure, or injures whether intentionally or unintentionally in the
				course of committing any other offense under this section, one or more persons
				taking no active part in the hostilities, including those placed hors de combat
				by sickness, wounds, detention, or any other cause, by disfiguring the person
				or persons by any mutilation thereof or by permanently disabling any member,
				limb, or organ of his body, without any legitimate medical or dental purpose,
				shall be guilty of a violation of this subsection. The intent required for this
				offense precludes its applicability with regard to collateral damage or to
				death, damage, or injury incident to a lawful attack.
						(F)Intentionally
				causing great suffering or serious injuryAny person who
				intentionally causes, or conspires or attempts to cause, serious bodily injury
				to one or more persons taking no active part in the hostilities, including
				those placed hors de combat by sickness, wounds, detention, or any other cause,
				shall be guilty of a violation of this subsection. The intent required for this
				offense precludes its applicability with regard to collateral damage or to
				death, damage, or injury incident to a lawful attack. The term serious
				bodily injury has the meaning provided in subsection (b)(2) of section
				113 of this title.
						(G)RapeAny
				person who forcibly or with coercion or threat of force wrongfully invades, or
				conspires or attempts to invade, the body of a person by penetrating, however
				slightly, the anal or genital opening of the victim with any part of the body
				of the accused or with any foreign object shall be guilty of a violation of
				this subsection.
						(H)Sexual assault
				or abuseAny person who forcibly or with coercion or threat of
				force engages, or conspires or attempts to engage, in sexual contact with one
				or more persons, or causes, or conspires or attempts to cause, one or more
				persons to engage in sexual contact, shall be guilty of a violation of this
				subsection. For purposes of this offense, the term sexual contact
				has the meaning provided in paragraph (3) of section 2246 of this title.
						(I)Taking
				hostagesAny person who, having knowingly seized or detained one
				or more persons, threatens to kill, injure, or continue to detain such person
				or persons with the intent of compelling any nation, person other than the
				hostage, or group of persons to act or refrain from acting as an explicit or
				implicit condition for the safety or release of such person or persons, shall
				be guilty of a violation of this subsection. Any person who attempts to engage
				or conspires to engage in this offense shall also be guilty under this
				subsection.
						.
			108.Conforming
			 amendments
				(a)Section 1004(b)
			 of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note) is amended to
			 conform with this title as follows—
					(1)by replacing
			 may provide with shall provide;
					(2)by adding
			 or investigation after criminal prosecution;
			 and
					(3)by adding
			 whether before United States courts or agencies, foreign courts or
			 agencies, or international courts or agencies, after described
			 in that subsection.
					(b)Section 1005 of
			 the Detainee Treatment Act of 2005 (10 U.S.C. 801 note) is amended to conform
			 with this title as follows—
					(1)by striking
			 subsection (e)(3)(B) and renumbering subsections (e)(3)(C) and (e)(3)(D) as
			 subsections (e)(3)(B) and (e)(3)(C), respectively;
					(2)in subsection
			 (e)(3)(A), by striking pursuant to Military Commission Order No. 1,
			 August 31, 2005 (or any successor military order) and inserting
			 by a military commission under chapter 47a of title 10, United States
			 Code;
					(3)in former
			 subsection (e)(3)(C)(i), by striking pursuant to the military
			 order and inserting by a military commission;
					(4)in former
			 subsection (e)(3)(C)(ii), by striking pursuant to such military
			 order and inserting by such a military
			 commission;
					(5)in former
			 subsection (e)(3)(D)(i) by striking specified in the military
			 order and inserting specified for a military
			 commission;
					(6)in former
			 subsection (e)(3)(C)(i), by striking at Guantanamo Bay, Cuba;
			 and
					(7)in former
			 subsection (e)(2)(B)(i) by replacing the Department of Defense at
			 Guantanamo Bay, Cuba with United States.
					(c)Section 802 of
			 title 10, United States Code, is amended to conform with this title by adding,
			 (a)(13) Lawful enemy combatants who violate the law of
			 war..
				(d)Section 821 of
			 title 10, United States Code, is amended to conform with this title by striking
			 the phrase by statute or the law of war.
				(e)Section 836 of
			 title 10, United States Code, is amended to conform with this title as
			 follows—in subsection (a), by replacing military commissions and other
			 military tribunals with and other military tribunals (excluding
			 military commissions).
				109.Retroactive
			 applicationThis title shall
			 take effect on the date of the enactment of this title and shall apply
			 retroactively, including to any aspect of the detention, treatment, or trial of
			 any person detained at any time since September 11, 2001, and to any claim or
			 cause of action pending on or after the date of the enactment of this
			 Act.
			110.SeverabilityIf any provision of this title, or the
			 application of a provision to any person or circumstance, is held to be
			 unconstitutional, the remainder of this title, and the application of the
			 provisions to any other person or circumstance, shall not be affected
			 thereby.
			IIForeign
			 Intelligence Surveillance
			201.Short
			 titleThis title may be cited
			 as the National Security Surveillance
			 Act of 2006.
			202.FindingsCongress finds the following:
				(1)After the
			 terrorist attacks of September 11, 2001, President Bush authorized the National
			 Security Agency to intercept communications between people inside the United
			 States, including American citizens, and terrorism suspects overseas.
				(2)One of the
			 lessons learned from September 11, 2001, is that the enemies who seek to
			 greatly harm and terrorize our Nation utilize technologies and techniques that
			 defy conventional law enforcement practices.
				(3)For days before
			 September 11, 2001, the Federal Bureau of Investigation suspected that
			 confessed terrorist Zacarias Moussaoui was planning to hijack a commercial
			 plane. The Federal Bureau of Investigation, however, could not meet the
			 requirements to obtain a traditional criminal warrant or an order under the
			 Foreign Intelligence Surveillance Act of 1978 to search his laptop computer
			 (Report of the 9/11 Commission 273–76).
				(4)The President, as
			 the constitutional officer most directly responsible for protecting the United
			 States from attack, requires the ability and means to detect and track an enemy
			 that can master and exploit modern technology.
				(5)It is equally
			 essential, however, that in protecting the United Sates against our enemies,
			 the President does not compromise the very civil liberties that he seeks to
			 safeguard. As Justice Hugo Black observed, The President's power, if
			 any, to issue [an] order must stem either from an Act of Congress or from the
			 Constitution itself. Youngstown Sheet & Tube Co. v. Sawyer, 343
			 U.S. 579, 585 (1952) (opinion by Black, J.). Similarly, in 2004, Justice Sandra
			 Day O'Connor explained in her plurality opinion for the Supreme Court in Hamdi
			 v. Rumsfeld: We have long since made clear that a state of war is not a
			 blank check for the President when it comes to the rights of the Nation's
			 citizens. Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations
			 omitted).
				(6)When deciding
			 issues of national security, it is in our Nation's best interest that, to the
			 extent feasible, all 3 branches of the Federal Government should be involved.
			 This helps guarantee that electronic surveillance programs do not infringe on
			 the constitutional rights of Americans, while at the same time ensuring that
			 the President has all the powers and means necessary to detect and track our
			 enemies and protect our Nation from attack.
				(7)As Justice Sandra
			 Day O'Connor explained in her plurality opinion for the Supreme Court in Hamdi
			 v. Rumsfeld, Whatever power the United States Constitution envisions for
			 the Executive in its exchanges with other nations or with enemy organizations
			 in times of conflict, it most assuredly envisions a role for all 3 branches
			 when individual liberties are at stake. Hamdi v. Rumsfeld, 542 U.S.
			 507, 536 (2004) (citations omitted).
				(8)Similarly,
			 Justice Jackson famously explained in his Youngstown concurrence: When
			 the President acts pursuant to an express or implied authorization of Congress,
			 his authority is at its maximum, for it includes all that he possesses in his
			 own right plus all that Congress can delegate... When the President acts in
			 absence of either a congressional grant or denial of authority, he can only
			 rely upon his own independent powers, but there is a zone of twilight in which
			 he and Congress may have concurrent authority, or in which its distribution is
			 uncertain. Therefore, congressional inertia, indifference or quiescence may
			 sometimes, at least as a practical matter, enable, if not invite, measures on
			 independent presidential responsibility... When the President takes measures
			 incompatible with the expressed or implied will of Congress, his power is at
			 its lowest ebb, for then he can rely only upon his own constitutional powers
			 minus any constitutional powers of Congress over the matter. Courts can sustain
			 exclusive Presidential control in such a case only by disabling the Congress
			 from acting upon the subject. Youngstown Sheet & Tube Co. v.
			 Sawyer, 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring).
				(9)Congress clearly
			 has the authority to enact legislation with respect to electronic surveillance
			 programs. The Constitution provides Congress with broad powers of oversight
			 over national security and foreign policy, under article I, section 8 of the
			 Constitution of the United States, which confers on Congress numerous powers,
			 including the powers—
					(A)To declare
			 War, grant Letters of Marque and Reprisal, and make Rules concerning Captures
			 on Land and Water;
					(B)To raise
			 and support Armies;
					(C)To provide
			 and maintain a Navy;
					(D)To make
			 Rules for the Government and Regulation of the land and naval
			 Forces;
					(E)To provide
			 for calling forth the Militia to execute the Laws of the Union, suppress
			 Insurrections and repel Invasions; and
					(F)To provide
			 for organizing, arming, and disciplining the Militia, and for governing such
			 Part of them as may be employed in the Service of the United
			 States.
					(10)While Attorney
			 General Alberto Gonzales explained that the executive branch reviews the
			 electronic surveillance program of the National Security Agency every 45 days
			 to ensure that the program is not overly broad, it is the belief of Congress
			 that approval and supervision of electronic surveillance programs should be
			 conducted outside of the executive branch, by the article III court established
			 under section 103 of the Foreign Intelligence Surveillance Act of 1978 (50
			 U.S.C. 1803). It is also the belief of Congress that it is appropriate for an
			 article III court to pass upon the constitutionality of electronic surveillance
			 programs that may implicate the rights of Americans.
				(11)The Foreign
			 Intelligence Surveillance Court is the proper court to approve and supervise
			 classified electronic surveillance programs because it is adept at maintaining
			 the secrecy with which it was charged and it possesses the requisite expertise
			 and discretion for adjudicating sensitive issues of national security.
				(12)In 1975, [then]
			 Attorney General Edward Levi, a strong defender of executive authority,
			 testified that in times of conflict, the President needs the power to conduct
			 long-range electronic surveillance and that a foreign intelligence surveillance
			 court should be empowered to issue special approval orders in these
			 circumstances.
				(13)The Foreign
			 Intelligence Surveillance Act of 1978 clarifies and definitively establishes
			 that the Foreign Intelligence Surveillance Court has the authority to review
			 electronic surveillance programs and pass upon their constitutionality. Such
			 authority is consistent with well-established, longstanding practices.
				(14)The Foreign
			 Intelligence Surveillance Court already has broad authority to approve
			 surveillance of members of international conspiracies, in addition to granting
			 warrants for surveillance of a particular individual under sections 104, 105,
			 and 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804,
			 1805, and 1842).
				(15)Prosecutors have
			 significant flexibility in investigating domestic conspiracy cases. Courts have
			 held that flexible warrants comply with the 4th amendment to the Constitution
			 of the United States when they relate to complex, far-reaching, and
			 multifaceted criminal enterprises like drug conspiracies and money laundering
			 rings. The courts recognize that applications for search warrants must be
			 judged in a common sense and realistic fashion, and the courts permit broad
			 warrant language where, due to the nature and circumstances of the
			 investigation and the criminal organization, more precise descriptions are not
			 feasible.
				(16)Federal agents
			 investigating international terrorism by foreign enemies are entitled to tools
			 at least as broad as those used by law enforcement officers investigating
			 domestic crimes by United States citizens. The Supreme Court, in the
			 Keith Case, United States v. United States District Court for
			 the Eastern District of Michigan, 407 U.S. 297 (1972), recognized that the
			 standards and procedures used to fight ordinary crime may not be applicable to
			 cases involving national security. The Court recognized that national
			 security surveillance may involve different policy and practical
			 considerations from the surveillance of ordinary crime and that courts
			 should be more flexible in issuing warrants in national security cases. United
			 States v. United States District Court for the Eastern District of Michigan,
			 407 U.S. 297, 322 (1972).
				(17)By authorizing
			 the Foreign Intelligence Surveillance Court to review electronic surveillance
			 programs, Congress preserves the ability of the President to use the necessary
			 means to guard our national security, while also protecting the civil liberties
			 and constitutional rights that we cherish.
				203.DefinitionsThe Foreign Intelligence Surveillance Act of
			 1978 (50 U.S.C. 1801 et seq.) is amended—
				(1)by redesignating title VII as title
			 IX;
				(2)by redesignating
			 section 701 as section 901; and
				(3)by inserting
			 after title VI the following:

						VIIElectronic
				surveillance
							701.DefinitionAs used in this title—
								(1)the terms
				agent of a foreign power, Attorney General,
				foreign power, international terrorism,
				minimization procedures, person, United
				States, and United States person have the same meaning as
				in section 101;
								(2)the term
				congressional intelligence committees means the Select Committee
				on Intelligence of the Senate and the Permanent Select Committee on
				Intelligence of the House of Representatives;
								(3)the term
				electronic communication means any transfer of signs, signals,
				writing, images, sounds, data, or intelligence of any nature transmitted, in
				whole or in part, by a wire, radio, electro magnetic, photo electronic or photo
				optical system, cable, or other like connection furnished or operated by any
				person engaged as a common carrier in providing or operating such facilities
				for the transmission of communications;
								(4)the term
				electronic tracking means the acquisition by an electronic,
				mechanical, or other surveillance device of the substance of any electronic
				communication sent by, received by, or intended to be received by a person who
				is reasonably believed to be in the United States, through the intentional
				targeting of that person's communications, where a person in the United States
				participating in the communication has a reasonable expectation of
				privacy;
								(5)the term
				electronic surveillance program means a program to engage in
				electronic tracking—
									(A)that has as a
				significant purpose the gathering of foreign intelligence information or
				protecting against international terrorism;
									(B)where it is not
				technically feasible to name every person or address every location to be
				subjected to electronic tracking;
									(C)where effective
				gathering of foreign intelligence information requires the flexibility to begin
				electronic surveillance immediately after learning of suspect activity;
				and
									(D)where effective
				gathering of foreign intelligence information requires an extended period of
				electronic surveillance;
									(6)the term
				foreign intelligence information has the same meaning as in
				section 101 and includes information necessary to protect against international
				terrorism;
								(7)the term
				Foreign Intelligence Surveillance Court means the court
				established under section 103(a);
								(8)the term
				Foreign Intelligence Surveillance Court of Review means the court
				established under section 103(b);
								(9)the term
				intercept means the acquisition of the substance of any electronic
				communication by a person through the use of any electronic, mechanical, or
				other device; and
								(10)the term
				substance means any information concerning the symbols, sounds,
				words, purport, or meaning of a communication, and does not include dialing,
				routing, addressing, or
				signaling.
								.
				204.Foreign
			 intelligence surveillance court jurisdiction to review electronic surveillance
			 programs
				(a)In
			 generalTitle VII of the Foreign Intelligence Surveillance Act of
			 1978, as amended by section 203, is amended by adding at the end the
			 following:

						702.Foreign
				intelligence surveillance court jurisdiction to review electronic surveillance
				programs
							(a)Authorization
				of review
								(1)Initial
				authorizationThe Foreign Intelligence Surveillance Court shall
				have jurisdiction to issue an order under this title, lasting not longer than
				90 days, that authorizes an electronic surveillance program to obtain foreign
				intelligence information or to protect against international terrorism.
								(2)ReauthorizationThe
				Foreign Intelligence Surveillance Court shall have jurisdiction to reauthorize
				an electronic surveillance program for a period of time not longer than such
				court determines to be reasonable.
								(3)Resubmission or
				appealIn the event that the Foreign Intelligence Surveillance
				Court refuses to approve an application under this subsection, the Attorney
				General may submit a new application. There shall be no limit on the number of
				times the Attorney General may seek approval of an electronic surveillance
				program. Alternatively, the Attorney General may appeal the decision of the
				Foreign Intelligence Surveillance Court to the Foreign Intelligence
				Surveillance Court of Review.
								(b)Mandatory
				transfer for review
								(1)In
				generalIn any case before any court challenging the legality of
				classified communications intelligence activity relating to a foreign threat,
				including an electronic surveillance program, or in which the legality of any
				such activity or program is in issue, if the Attorney General files an
				affidavit under oath that the case should be transferred to the Foreign
				Intelligence Court of Review because further proceedings in the originating
				court would harm the national security of the United States, the originating
				court shall transfer the case to the Foreign Intelligence Surveillance Court of
				Review for further proceedings under this subsection.
								(2)Retransfer to
				originating courtUpon completion of review pursuant to this
				subsection, the Foreign Intelligence Surveillance Court of Review shall remand
				the case to the originating court for further proceedings consistent with its
				opinion.
								(3)Preservation of
				litigationIn any case that is transferred and received under
				this subsection, all litigation privileges shall be preserved.
								(4)Certiorari and
				effects of decisionsThe decision the Foreign Intelligence
				Surveillance Court of Review made under paragraph (1), including a decision
				that the disclosure of national security information is constitutionally
				required, shall be subject to certiorari review in the United States Supreme
				Court, and shall otherwise be binding in all other courts.
								(5)DismissalThe
				Foreign Intelligence Surveillance Court of Review or a court that is an
				originating court under paragraph (1) may dismiss a challenge to the legality
				of an electronic surveillance program for any reason provided for under
				law.
								(c)Modifications
				and appeal in event application is deniedIn the event that the Foreign Intelligence
				Surveillance Court declines to approve an application under subsection
				(a)—
								(1)the court shall
				state its reasons in a written opinion, which it shall submit to the Attorney
				General; and
								(2)the Attorney
				General may submit a new application under section 703 for the electronic
				surveillance
				program.
								.
				205.Applications
			 for approval of electronic surveillance programsTitle VII of the Foreign Intelligence
			 Surveillance Act of 1978, as amended by section 204, is amended by adding at
			 the end the following:

					703.Applications
				for approval of electronic surveillance programs
						(a)In
				generalEach application for approval of an electronic
				surveillance program under this title (including for reauthorization)
				shall—
							(1)be made by the
				Attorney General or his designee;
							(2)include a
				statement of the authority conferred on the Attorney General by the President
				of the United States;
							(3)include a
				statement setting forth the legal basis for the conclusion by the Attorney
				General that the electronic surveillance program is consistent with the
				Constitution of the United States;
							(4)certify that a
				significant purpose of the electronic surveillance program is to gather foreign
				intelligence information or to protect against international terrorism;
							(5)certify that the
				information sought cannot reasonably be obtained by normal investigative
				techniques or through an application under section 104;
							(6)include a
				statement of the means and operational procedures by which the electronic
				tracking will be executed and effected;
							(7)include an
				explanation of how the electronic surveillance program is reasonably designed
				to ensure that the communications that are intercepted are communications of or
				with—
								(A)a foreign power
				that is engaged in international terrorism activities or in preparation
				therefor;
								(B)an agent of a
				foreign power that is engaged in international terrorism activities or in
				preparation therefor; or
								(C)a person
				reasonably believed to have communication with or be associated with a foreign
				power that is engaged in international terrorism activities or in preparation
				therefor or an agent of a foreign power that is engaged in international
				terrorism activities or in preparation therefor;
								(8)include a
				statement of the proposed minimization procedures;
							(9)if the electronic
				surveillance program that is the subject of the application was initiated prior
				to the date the application was submitted, specify the date that the program
				was initiated;
							(10)include a
				description of all previous applications that have been made under this title
				involving the electronic surveillance program in the application (including the
				minimization procedures and the means and operational procedures proposed) and
				the decision on each previous application; and
							(11)include a
				statement of facts concerning the implementation of the electronic surveillance
				program described in the application, including, for any period of operation of
				the program authorized not less than 90 days prior to the date of submission of
				the application—
								(A)the minimization
				procedures implemented; and
								(B)the means and
				operational procedures by which the electronic tracking was executed and
				effected.
								(b)Additional
				informationThe Foreign Intelligence Surveillance Court may
				require the Attorney General to furnish such other information as may be
				necessary to make a determination under section
				704.
						.
			206.Approval of
			 electronic surveillance programsTitle VII of the Foreign Intelligence
			 Surveillance Act of 1978, as amended by section 205, is amended by adding at
			 the end the following:

					704.Approval of
				electronic surveillance programs
						(a)Necessary
				findingsUpon receipt of an application under section 703, the
				Foreign Intelligence Surveillance Court shall enter an ex parte order as
				requested, or as modified, approving the electronic surveillance program if it
				finds that—
							(1)the President has
				authorized the Attorney General to make the application for electronic
				surveillance for foreign intelligence information or to protect against
				international terrorism;
							(2)approval of the
				electronic surveillance program in the application is consistent with the
				Constitution of the United States;
							(3)the electronic
				surveillance program is reasonably designed to ensure that the communications
				that are intercepted are communications of or with—
								(A)a foreign power
				that is engaged in international terrorism activities or in preparation
				therefor;
								(B)an agent of a
				foreign power that is engaged in international terrorism activities or in
				preparation therefor; or
								(C)a person
				reasonably believed to have communication with or be associated with a foreign
				power that is engaged in international terrorism activities or in preparation
				therefor or an agent of a foreign power that is engaged in international
				terrorism activities or in preparation therefor;
								(4)the proposed
				minimization procedures meet the definition of minimization procedures under
				section 101(h); and
							(5)the application
				contains all statements and certifications required by section 703.
							(b)ConsiderationsIn
				considering the constitutionality of the electronic surveillance program under
				subsection (a), the Foreign Intelligence Surveillance Court may
				consider—
							(1)whether the
				electronic surveillance program has been implemented in accordance with the
				proposal by the Attorney General by comparing—
								(A)the minimization
				procedures proposed with the minimization procedures actually
				implemented;
								(B)the nature of the
				information sought with the nature of the information actually obtained;
				and
								(C)the means and
				operational procedures proposed with the means and operational procedures
				actually implemented; and
								(2)whether foreign
				intelligence information has been obtained through the electronic surveillance
				program.
							(c)Contents of
				orderAn order approving an electronic surveillance program under
				this section shall direct—
							(1)that the
				minimization procedures be followed;
							(2)that, upon the
				request of the applicant, specified communication or other common carriers,
				landlords, custodians, or other specified person, furnish the applicant
				forthwith with all information, facilities, or technical assistance necessary
				to undertake the electronic surveillance program in such a manner as will
				protect its secrecy and produce a minimum of interference with the services
				that such carriers, landlords, custodians, or other persons are providing
				potential targets of the electronic surveillance program;
							(3)that any record
				concerning the electronic surveillance program or the aid furnished or retained
				by such carriers, landlords, custodians, or other persons are maintained under
				security procedures approved by the Attorney General and the Director of
				National Intelligence; and
							(4)that the
				applicant compensate, at the prevailing rate, such carriers, landlords,
				custodians, or other persons for furnishing such
				aid.
							.
			207.Congressional
			 oversightTitle VII of the
			 Foreign Intelligence Surveillance Act of 1978, as amended by section 206, is
			 amended by adding at the end the following:

					705.Congressional
				oversight
						(a)In
				generalNot less often than every 180 days, the Attorney General
				shall submit to the congressional intelligence committees a report in
				classified form on the activities during the previous 180-day period under any
				electronic surveillance program authorized under this title.
						(b)ContentsEach
				report submitted under subsection (a) shall provide, with respect to the
				previous 180-day period, a description of—
							(1)the minimization
				procedures implemented;
							(2)the means and
				operational procedures by which the surveillance was executed and
				effected;
							(3)significant
				decisions of the Foreign Intelligence Surveillance Court on applications made
				under section 703;
							(4)the total number
				of applications made for orders approving electronic surveillance pursuant to
				this title; and
							(5)the total number
				of orders applied for that are granted, modified, or denied.
							(c)Rule of
				constructionNothing in this title shall be construed to limit
				the authority or responsibility of any committee of either House of Congress to
				obtain such information as such committee may need to carry out its respective
				functions and
				duties.
						.
			208.Clarification
			 of the Foreign Intelligence Surveillance Act of 1978
				(a)In
			 generalThe Foreign Intelligence Surveillance Act of 1978 (50
			 U.S.C. 1801 et seq.) is amended by inserting after title VII, as amended by
			 this title, the following:

						VIIIExecutive
				authority
							801.Executive
				authorityNothing in this Act
				shall be construed to limit the constitutional authority of the President to
				collect intelligence with respect to foreign powers and agents of foreign
				powers.
							.
				(b)RepealSections
			 111, 309, and 404 of the Foreign Intelligence Surveillance Act of 1978 (50
			 U.S.C. 1811, 1829, and 1844) are repealed.
				(c)Conforming
			 amendments
					(1)Title
			 18Section 2511(2) of title 18, United States Code, is
			 amended—
						(A)in paragraph (e),
			 by striking , as defined in section 101 and all that follows
			 through the end of the paragraph and inserting the following: under the
			 Constitution or the Foreign Intelligence Surveillance Act of 1978.;
			 and
						(B)in paragraph (f),
			 by striking from international or foreign communications, and
			 all that follows through the end of the paragraph and inserting that is
			 authorized under a Federal statute or the Constitution of the United
			 States.
						(2)FISASection
			 109 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809) is
			 amended—
						(A)in subsection
			 (a)—
							(i)in
			 paragraph (1)—
								(I)by inserting
			 or under the Constitution after authorized by
			 statute; and
								(II)by striking
			 or at the end;
								(ii)in
			 paragraph (2)—
								(I)by inserting
			 or under the Constitution after authorized by
			 statute; and
								(II)by striking the
			 period and inserting ; or; and
								(iii)by adding at
			 the end the following:

									(3)knowingly
				discloses or uses information obtained under color of law by electronic
				surveillance in a manner or for a purpose not authorized by
				law.
									;
				and
							(B)in subsection
			 (c)—
							(i)by
			 striking $10,000 and inserting $100,000;
			 and
							(ii)by
			 striking five years and inserting 15
			 years.
							209.Other
			 conforming amendments to FISA
				(a)ReferenceIn
			 this section, a reference to FISA shall mean the Foreign
			 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)
				(b)DefinitionsSection
			 101 of FISA (50 U.S.C. 1801) is amended—
					(1)in subsection
			 (b)(1)—
						(A)in subparagraph
			 (B), by striking or after the semicolon; and
						(B)by adding at the
			 end the following:

								(D)otherwise
				possesses or is expected to transmit or receive foreign intelligence
				information within the United States;
				or
								;
						(2)by striking
			 subsection (f) and inserting the following:

							(f)Electronic
				surveillance means—
								(1)the installation
				or use of an electronic, mechanical, or other surveillance device for the
				intentional collection of information concerning a particular known person who
				is reasonably believed to be in the United States by intentionally targeting
				that person under circumstances in which that person has a reasonable
				expectation of privacy and a warrant would be required for law enforcement
				purposes; or
								(2)the intentional
				acquisition of the contents of any communication under circumstances in which a
				person has a reasonable expectation of privacy and a warrant would be required
				for law enforcement purposes, and if both the sender and all intended
				recipients are located within the United
				States.
								;
					(3)in subsection
			 (g), by inserting before the period the following: or a person or
			 persons designated by the Attorney General or Acting Attorney
			 General;
					(4)in subsection
			 (h)—
						(A)in paragraph (2),
			 by inserting and after the semicolon;
						(B)in paragraph (3),
			 by striking ; and and inserting a period; and
						(C)by striking
			 paragraph (4); and
						(5)by striking
			 subsection (n) and inserting the following:

							(n)contents
				has the meaning set forth in section 2510(8) of title 18, United States
				Code.
							.
					(c)Electronic
			 surveillance authorizationSection 102 of FISA (50 U.S.C. 1802)
			 is amended to read as follows:

						102.Electronic surveillance authorization without court order;
		  certification by Attorney General; reports to congressional committees;
		  transmittal under seal; duties and compensation of communication common
		  carrier; applications; jurisdiction of court(a)(1)Notwithstanding any other law, the
				President through the Attorney General, may authorize electronic surveillance
				without a court order under this title to acquire foreign intelligence
				information for periods of up to 1 year if the Attorney General certifies in
				writing under oath that—
									(A)(i)the acquisition of the contents of
				communications of foreign powers, as defined in section 101(a), an agent of a
				foreign power as defined in section 101(b)(1); or
										(ii)the acquisition of technical intelligence,
				other than the spoken communications of individuals, from property or premises
				under the open and exclusive control of a foreign power, as defined in
				paragraph (1), (2), or (3) of section 101(a); and
										(B)the proposed minimization procedures with
				respect to such surveillance meet the definition of minimization procedures
				under section 101(h);
									if the
				Attorney General reports such minimization procedures and any changes thereto
				to the Senate Select Committee on Intelligence and the House Permanent Select
				Committee on Intelligence at least 30 days prior to their effective date,
				unless the Attorney General determines immediate action is required and
				notifies the committees immediately of such minimization procedures and the
				reason for their becoming effective immediately.(2)An electronic surveillance authorized
				by this subsection may be conducted only in accordance with the Attorney
				General's certification and the minimization procedures. The Attorney General
				shall assess compliance with such procedures and shall report such assessments
				to the Senate Select Committee on Intelligence and the House Permanent Select
				Committee on Intelligence under the provisions of section 108(a).
								(3)The Attorney General shall
				immediately transmit under seal to the court established under section 103(a) a
				copy of his certification. Such certification shall be maintained under
				security measures established by the Chief Justice with the concurrence of the
				Attorney General, in consultation with the Director of National Intelligence,
				and shall remain sealed unless—
									(A)an application for a court order with
				respect to the surveillance is made under section 104; or
									(B)the certification is necessary to
				determine the legality of the surveillance under section 106(f).
									(b)The Attorney
				General is also authorized to deliver to a provider of any electronic
				communication service, landlord, custodian, or other person (including any
				officer, employee, agent, or other specified person thereof) who has access to
				electronic communications, either as they are transmitted or while they are
				stored, or equipment that is being or may be used to transmit or store such
				communications, a certificate requiring that such person or persons furnish any
				information, facilities, or technical assistance to an official authorized by
				the President to engage in electronic surveillance for foreign intelligence
				purposes, for periods of up to 1 year if the Attorney General certifies in
				writing to the carrier under oath that such provision of information,
				facilities, or technical assistance does not constitute electronic surveillance
				as defined in section 101(f).
							(c)With respect to
				electronic surveillance or the furnishing of any information, facilities, or
				technical assistance authorized by this section, the Attorney General may
				direct a provider of any electronic communication service, landlord, custodian
				or other person (including any officer, employee, agent, or other specified
				person thereof) who has access to electronic communications, either as they are
				transmitted or while they are stored or equipment that is being or may be used
				to transmit or store such communications to—
								(1)furnish all
				information, facilities, or technical assistance necessary to accomplish the
				electronic surveillance in such a manner as will protect its secrecy and
				produce a minimum of interference with the services that such provider of any
				electronic communication service, landlord, custodian, or other person is
				providing its customers; and
								(2)maintain under
				security procedures approved by the Attorney General and the Director of
				National Intelligence any records concerning the surveillance or the aid
				furnished which such provider of any electronic communication service,
				landlord, custodian, or other person wishes to retain.
								The
				Government shall compensate, at the prevailing rate, such provider of any
				electronic communication service, landlord, custodian, or other person for
				furnishing such aid.(d)Electronic
				surveillance directed solely at the collection of international radio
				communications of diplomatically immune persons in the United States may be
				authorized by an official authorized by the President to engage in electronic
				surveillance for foreign intelligence purposes in accordance with procedures
				approved by the Attorney
				General.
							.
				(d)Designation of
			 judgesSection 103 of FISA (50 U.S.C. 1803) is amended in
			 subsection (a), by inserting, at least before seven of
			 the United States Judiciary.
				(e)Applications
			 for court ordersSection 104 of FISA (50 U.S.C. 1804) is
			 amended:
					(1)in subsection
			 (a), by striking paragraphs (6) through (11) and inserting the
			 following:

							(6)a certification
				or certifications by the Assistant to the President for National Security
				Affairs or an executive branch official authorized by the President to conduct
				electronic surveillance for foreign intelligence purposes—
								(A)that the
				certifying official deems the information sought to be foreign intelligence
				information;
								(B)that a
				significant purpose of the surveillance is to obtain foreign intelligence
				information;
								(C)that such
				information cannot reasonably be obtained by normal investigative techniques;
				and
								(D)including a
				statement of the basis for the certification that—
									(i)the information
				sought is the type of foreign intelligence information designated; and
									(ii)such information
				cannot reasonably be obtained by normal investigative techniques; and
									(7)a statement of
				the period of time for which the electronic surveillance is required to be
				maintained, and if the nature of the intelligence gathering is such that the
				approval of the use of electronic surveillance under this title should not
				automatically terminate when the described type of information has first been
				obtained, a description of facts supporting the belief that additional
				information of the same type will be obtained
				thereafter.
							;
					(2)by striking
			 subsection (b); and
					(3)by redesignating
			 subsections (c) through (e) as subsections (b) through (d),
			 respectively.
					(f)Issuance of
			 orderSection 105 of FISA (50 U.S.C. 1805) is amended—
					(1)in subsection
			 (a), by—
						(A)striking
			 paragraph (1); and
						(B)redesignating
			 paragraphs (2) through (5) as paragraphs (1) through (4), respectively;
						(2)by striking
			 paragraph (1) of subsection (c) and inserting the following:

							(1)An order approving an electronic
				surveillance under this section shall specify—
								(A)the identity, if known, or a
				description of the specific target of the electronic surveillance identified or
				described in the application pursuant to section 104(a)(3);
								(B)the nature and location of each of the
				facilities or places at which the electronic surveillance will be directed, if
				known; and
								(C)the period of time during which the
				electronic surveillance is
				approved.
								;
					(3)by striking
			 subsection (d) and inserting the following:

							(d)Each order under
				this section shall specify the type of electronic surveillance involved,
				including whether physical entry is
				required.
							;
					(4)by striking
			 paragraphs (1) and (2) of subsection (e) and inserting the following:

							(1)An order issued under this section
				may approve an electronic surveillance may be for a period not to exceed 1
				year. If such emergency employment of electronic surveillance is authorized,
				the official authorizing the emergency employment of electronic surveillance
				shall require that the minimization procedures required by this title for the
				issuance of a judicial order be followed.
							(2)Extensions of an order issued under
				this title may be granted on the same basis as an original order upon an
				application for an extension and new findings made in the same manner as
				required for an original order and may be for a period not to exceed 1
				year.
							;
					(5)by striking
			 subsection (f) and inserting the following:

							(f)(1)Notwithstanding any
				other provision of this title, when an official authorized by the President to
				conduct electronic surveillance reasonably determines that—
									(A)an emergency situation exists with
				respect to the employment of electronic surveillance to obtain foreign
				intelligence information before an order authorizing such surveillance can with
				due diligence be obtained; and
									(B)the factual basis for issuance of an
				order under this title to approve such surveillance exists;
									that
				official may authorize the emergency employment of electronic surveillance in
				accordance with paragraph (2).(2)Under paragraph (1), the following
				requirements shall be satisfied:
									(A)The Attorney General shall be informed
				of the emergency electronic surveillance.
									(B)A judge having jurisdiction under
				section 103 shall be informed by the Attorney General or his designee as soon
				as practicable following such authorization that the decision has been made to
				employ emergency electronic surveillance.
									(C)An application in accordance with this
				title shall be made to that judge or another judge having jurisdiction under
				section 103 as soon as practicable, but not more than 7 days after such
				surveillance is authorized. In the absence of a judicial order approving such
				electronic surveillance, the surveillance shall terminate when the information
				sought is obtained, when the application for the order is denied, or after the
				expiration of 7 days from the time of emergency authorization, whichever is
				earliest. In the event that such application for approval is denied, or in any
				other case where the electronic surveillance is terminated and no order is
				issued approving the surveillance, no information obtained or evidence derived
				from such surveillance shall be received in evidence or otherwise disclosed in
				any trial, hearing, or other proceeding in or before any court, grand jury,
				department, office, agency, regulatory body, legislative committee, or other
				authority of the United States, a State, or political subdivision thereof, and
				no information concerning any United States person acquired from such
				surveillance shall subsequently be used or disclosed in any other manner by
				Federal officers or employees without the consent of such person, except with
				the approval of the Attorney General if the information indicates a threat of
				death or serious bodily harm to any person. A denial of the application made
				under this subsection may be reviewed as provided in section
				103.
									;
				and
					(6)in subsection (i)
			 by—
						(A)striking a
			 wire or and inserting any;
						(B)striking
			 chapter and inserting title; and
						(C)by adding at the
			 end , or in response to certification by the Attorney General or his
			 designee seeking information, facilities, or technical assistance from such
			 person that does not constitute electronic surveillance as defined in section
			 101(f ).
						(g)Use of
			 informationSection 106 of FISA (50U.S.C. 1806) is
			 amended—
					(1)in subsection
			 (i), by—
						(A)deleting
			 radio; and
						(B)inserting
			 Attorney General determines that the content after
			 contain significant foreign intelligence or; and
						(2)in subsection
			 (k), by deleting 104(a)(7) and inserting
			 104(a)(6).
					(h)Congressional
			 oversightSection 108 of FISA (50 U.S.C. 1808) is amended by
			 adding at the end the following:

						(c)Document
				management system for applications for orders approving electronic
				surveillance
							(1)System
				proposedThe Attorney General and Director of National
				Intelligence shall, in consultation with the Director of the Federal Bureau of
				Investigation, the Director of the National Security Agency, the Director of
				the Central Intelligence Agency, and the Foreign Intelligence Surveillance
				Court, conduct a feasibility study to develop and implement a secure,
				classified document management system that permits the prompt preparation,
				modification, and review by appropriate personnel of the Department of Justice,
				the Federal Bureau of Investigation, the National Security Agency, and other
				applicable elements of the United States Government of applications under
				section 104 before their submittal to the Foreign Intelligence Surveillance
				Court.
							(2)Scope of
				systemThe document management system proposed in paragraph (1)
				shall—
								(A)permit and
				facilitate the prompt submittal of applications and all other matters,
				including electronic filings, to the Foreign Intelligence Surveillance Court
				under section 104 or 105(g)(5); and
								(B)permit and
				facilitate the prompt transmittal of rulings of the Foreign Intelligence
				Surveillance Court to personnel submitting applications described in paragraph
				(1).
								.
				(i)Criminal
			 sanctionsSection 109 of FISA
			 (50 U.S.C. 1809) is amended by striking subsection (a) and inserting the
			 following:

						(a)Prohibited
				activitiesA person is guilty of an offense if he
				intentionally—
							(1)engages in
				electronic surveillance, as defined in section 101(f), under color of law
				except as authorized by law; or
							(2)discloses or uses
				information obtained under color of law by electronic surveillance, knowing or
				having reason to know that the information was obtained through electronic
				surveillance not authorized by
				law.
							.
				(j)Authorization
			 during time of warTitle I of
			 FISA is amended by striking section 111.
				(k)Physical
			 searchesTitle III of Foreign
			 Intelligence Surveillance Act of 1978 (50 U.S.C. 1821 et seq.) is
			 amended—
					(1)in section 301
			 (50 U.S.C. 1821), by striking paragraph (5) and inserting the following:

							(5)Physical
				search means any physical intrusion within the United States into
				premises or property (including examination of the interior of property by
				technical means) that is intended to result in a seizure, reproduction,
				inspection, or alteration of information, material, or property, under
				circumstances in which a person has a reasonable expectation of privacy and a
				warrant would be required for law enforcement purposes, but does not include
				activities conducted in accordance with sections 102 or
				105.
							;
					(2)in section 307,
			 by striking subsection (a) and inserting the following:

							(a)A person is
				guilty of an offense if he intentionally—
								(1)under color of
				law for the purpose of obtaining foreign intelligence information, executes a
				physical search within the United States except as authorized by statute or
				under the Constitution; or
								(2)discloses or uses
				information obtained under color of law by physical search within the United
				States, knowing or having reason to know that the information was obtained
				through physical search not authorized by statute or the
				Constitution.
								;
				and
					(3)by striking
			 section 309.
					210.Conforming
			 amendment to table of contentsThe table of contents for the Foreign
			 Intelligence Surveillance Act of 1978 is amended by striking the items related
			 to title VII and section 701 and inserting the following:

						TITLE VII—Electronic surveillance
						Sec. 701. Definition.
						Sec. 702. Foreign intelligence surveillance court jurisdiction
				to review electronic surveillance programs.
						Sec. 703. Applications for approval of electronic surveillance
				programs.
						Sec. 704. Approval of electronic surveillance
				programs.
						Sec. 705. Congressional oversight.
						TITLE VIII—Executive authority
						Sec. 801. Executive
				authority.

					.

		September 12, 2006
		Read the second time and placed on the
		  calendar