		II
		Calendar No. 633
		109th CONGRESS
		2d Session
		S. 3929
		IN THE SENATE OF THE UNITED STATES

			September 22, 2006
			Mr. McConnell (for
			 himself and Mr. Frist) introduced the
			 following bill; which was read the first time pursuant to the order of
			 September 21, 2006, as modified on September 22, 2006

			September 25, 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.

		IMILITARY
			 COMMISSIONS
			101.Short
			 titleThis title may be cited
			 as the Military Commissions Act of
			 2006.
			102.FindingsCongress makes the following
			 findings:
				(1)The Constitution
			 of the United States grants to Congress the power To define and punish …
			 Offenses against the Law of Nations, as well as the power To
			 declare War … To raise and support Armies … [and] To provide and maintain a
			 Navy.
				(2)The military
			 commission is the traditional tribunal for the trial of persons engaged in
			 hostilities for violations of the law of war.
				(3)Congress has, in
			 the past, both authorized the use of military commission by statute and
			 recognized the existence and authority of military commissions.
				(4)Military
			 commissions have been convened both by the President and by military commanders
			 in the field to try offenses against the law of war.
				(5)It is in the
			 national interest for Congress to exercise its authority under the Constitution
			 to enact legislation authorizing and regulating the use of military commissions
			 to try and punish violations of the law of war.
				103.Authorization
			 for military commissions
				(a)In
			 generalThe President is authorized to establish military
			 commissions for the trial of alien unlawful enemy combatants engaged in
			 hostilities against the United States for violations of the law of war and
			 other offenses specifically made triable by military commission as provided in
			 chapter 47 of title 10, United States Code, and chapter 47A of title 10, United
			 States Code (as enacted by this Act).
				(b)ConstructionThe
			 authority in subsection (a) may not be construed to alter or limit the
			 authority of the President under the Constitution and laws of the United States
			 to establish military commissions for areas declared to be under martial law or
			 in occupied territories 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
			 under a proceeding under chapter 47A of title 10, United States Code (as so
			 enacted), a sentence that is appropriate for the offense or offenses for which
			 there is a finding of guilt, including a sentence of death if authorized under
			 such chapter, 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
			 military commission shall direct.
				(d)Execution of
			 punishmentThe Secretary of Defense is authorized to carry out a
			 sentence of punishment imposed by a military commission established pursuant to
			 subsection (a) in accordance with such procedures as the Secretary may
			 prescribe.
				(e)Annual report
			 on trials by military commissions
					(1)Annual report
			 requiredNot later than December 31 each year, the Secretary of
			 Defense shall submit to the Committees on Armed Services of the Senate and the
			 House of Representatives a report on any trials conducted by military
			 commissions established pursuant to subsection (a) during such year.
					(2)FormEach
			 report under this subsection shall be submitted in unclassified form, but may
			 include a classified annex.
					104.Military
			 commissions
				(a)Military
			 commissions
					(1)In
			 generalSubtitle A of title 10, United States Code, is amended by
			 inserting after chapter 47 the following new chapter:

							47AMilitary
				commissions

									SUBCHAPTER
					 Sec.

									I. General Provisions948a.

									II. Composition of Military
					 Commissions948h.

									III. Pre-Trial Procedure948q.

									IV. Trial Procedure949a.

									V. Sentences949s.

									VI. Post-Trial Procedure and Review of Military
					 Commissions950a.

									VII. Punitive Matters950aa.

								IGeneral
				Provisions

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

									948a.DefinitionsIn 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)Lawful enemy
				combatantThe term lawful enemy combatant means an
				individual who is—
											(A)a member of the
				regular forces of a State party engaged in hostilities against the United
				States;
											(B)a member of a
				militia, volunteer corps, or organized resistance movement 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 force who professes allegiance to a government engaged in such
				hostilities, but not recognized by the United States.
											(4)Unlawful enemy
				combatantThe term unlawful enemy combatant means an
				individual engaged in hostilities against the United States who is not a lawful
				enemy combatant.
										948b.Military
				commissions generally
										(a)PurposeThis
				chapter establishes procedures governing the use of military commissions to try
				alien unlawful enemy combatants engaged in hostilities against the United
				States for violations of the law of war and other offenses triable by military
				commission.
										(b)Construction of
				provisionsThe procedures for military commissions set forth in
				this chapter are based upon the procedures for trial by general courts-martial
				under chapter 47 of this title (the Uniform Code of Military Justice). Chapter
				47 of this title does not, by its terms, apply to trial by military commission
				except as specifically provided therein or in this chapter, and many of the
				provisions of chapter 47 of this title are by their terms inapplicable to
				military commissions. The judicial construction and application of chapter 47
				of this title is therefore not binding on military commissions established
				under this chapter.
										(c)Inapplicability
				of certain provisions(1)The following
				provisions of this title shall not apply to trial by military commission under
				this chapter:
												(A)Section 810 (article 10 of the Uniform
				Code of Military Justice), relating to speedy trial, including any rule of
				courts-martial relating to speedy trial.
												(B)Sections 831(a), (b), and (d)
				(articles 31(a), (b), and (d) of the Uniform Code of Military Justice),
				relating to compulsory self-incrimination.
												(C)Section 832 (article 32 of the Uniform
				Code of Military Justice), relating to pretrial investigation.
												(2)Other provisions of chapter 47 of
				this title shall apply to trial by military commission under this chapter only
				to the extent provided by the terms of such provisions or by this
				chapter.
											(d)Status of
				military commissions under Common Article 3A 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.
										(e)Treatment of
				rulings and precedentsThe findings, holdings, interpretations,
				and other precedents of military commissions under this chapter may not be
				introduced or considered in any hearing, trial, or other proceeding of a
				court-martial convened under chapter 47 of this title. The findings, holdings,
				interpretations, and other precedents of military commissions under this
				chapter may not form the basis of any holding, decision, or other determination
				of a court-martial convened under that chapter.
										(f)Geneva
				conventions not establishing source of rightsNo alien enemy
				unlawful combatant subject to trial by military commission under this chapter
				may invoke the Geneva Conventions as a source of rights at his trial by
				military commission.
										948c.Persons
				subject to military commissionsAny alien unlawful enemy combatant engaged
				in hostilities or having supported hostilities against the United States is
				subject to trial by military commission as set forth in this chapter.
									948d.Jurisdiction
				of military commissions
										(a)JurisdictionA military commission under this chapter
				shall have jurisdiction to try any offense made punishable by this chapter,
				sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of
				Military Justice), or the law of war when committed by an alien unlawful enemy
				combatant before, on, or after September 11, 2001.
										(b)Lawful enemy
				combatantsMilitary
				commissions under this chapter shall not have jurisdiction over lawful enemy
				combatants. Lawful enemy combatants who violate the law of war are subject to
				chapter 47 of this title. Courts-martial established under that chapter shall
				have jurisdiction to try a lawful enemy combatant for any offense made
				punishable under this chapter.
										(c)PunishmentsA miliary commission under this chapter
				may, under such limitations as the President may prescribe, adjudge any
				punishment not forbidden by this chapter, including the penalty of death when
				authorized under this chapter, chapter 47 of this title, or the law of
				war.
										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 commissionsMilitary commissions under this chapter may
				be convened by the Secretary of Defense or by any officer or official of the
				United States designated by the Secretary for that purpose.
									948i.Who may serve
				on military commissions
										(a)In
				generalAny commissioned officer of the armed forces on active
				duty is eligible to serve on a military commission under this chapter,
				including commissioned officers of the reserve components of the armed forces
				on active duty, commissioned officers of the National Guard on active duty in
				Federal service, or retired commissioned officers recalled to active
				duty.
										(b)Detail of
				membersWhen convening a military commission under this chapter,
				the convening authority shall detail as members thereof such members of the
				armed forces eligible under subsection (a) who, as in the opinion of the
				convening authority, are best qualified for the duty by reason of age,
				education, training, experience, length of service, and judicial temperament.
				No member of an armed force is eligible to serve as a member of a military
				commission when such member is the accuser or a witness for the prosecution or
				has acted as an investigator or counsel in the same case.
										(c)Excuse of
				membersBefore a military commission under this chapter is
				assembled for the trial of a case, the convening authority may excuse a member
				from participating in the case.
										948j.Military
				judge of a military commission
										(a)Detail of
				military judgeA military judge shall be detailed to each
				military commission under this chapter. The Secretary of Defense shall
				prescribe regulations providing for the manner in which military judges are so
				detailed to military commissions. The military judge shall preside over each
				military commission to which he has been detailed.
										(b)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 under section
				826 of this title (article 26 of the Uniform Code of Military Justice) as a
				military judge in general courts-martial by the Judge Advocate General of the
				armed force of which such military judge is a member.
										(c)Ineligibility
				of certain individualsNo person is eligible to act as military
				judge in a case of a military commission under this chapter if he is the
				accuser or a witness or has acted as investigator or a counsel in the same
				case.
										(d)Consultation
				with members; Ineligibility to voteA military judge detailed to
				a military commission under this chapter may not consult with the members
				except in the presence of the accused (except as otherwise provided in section
				949d of this title), trial counsel, and defense counsel, nor may he vote with
				the members.
										(e)Other
				dutiesA commissioned officer who is certified to be qualified
				for duty as a military judge of a military commission under this chapter may
				perform such other duties as are assigned to him by or with the approval of the
				Judge Advocate General of the armed force of which such officer is a member or
				the designee of such Judge Advocate General.
										(f)Prohibition on
				evaluation of fitness by convening authorityThe convening
				authority of a military commission under this chapter shall not prepare or
				review any report concerning the effectiveness, fitness, or efficiency of a
				military judge detailed to the military commission which relates to his
				performance of duty as a military judge on the military commission.
										948k.Detail of
				trial counsel and defense counsel
										(a)Detail of
				counsel generally(1)Trial counsel and
				military defense counsel shall be detailed for each military commission under
				this chapter.
											(2)Assistant trial counsel and assistant
				and associate defense counsel may be detailed for a military commission under
				this chapter.
											(3)Military defense counsel for a
				military commission under this chapter shall be detailed as soon as practicable
				after the swearing of charges.
											(4)The Secretary of Defense shall
				prescribe regulations providing for the manner in which trial counsel and
				military defense counsel are detailed for military commissions under this
				chapter and for the persons who are authorized to detail such counsel for such
				military commissions.
											(b)Trial
				counselSubject to subsection (e), trial counsel detailed for a
				military commission under this chapter must be—
											(1)a judge advocate
				(as that term is defined in section 801 of this title (article 1 of the Uniform
				Code of Military Justice)) who 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 military commission pursuant to regulations
				prescribed by the Secretary of Defense.
												(c)Military
				defense counselSubject to subsection (e), military defense
				counsel detailed for a military commission under this chapter must be a judge
				advocate (as so defined) who is—
											(1)a graduate of an
				accredited law school or is a member of the bar of a Federal court or of the
				highest court of a State; and
											(2)certified as
				competent to perform duties as defense counsel before general courts-martial by
				the Judge Advocate General of the armed force of which he is a member.
											(d)Chief
				Prosecutor; Chief Defense Counsel(1)The Chief Prosecutor in
				a military commission under this chapter shall meet the requirements set forth
				in subsection (b)(1).
											(2)The Chief Defense Counsel in a
				military commission under this chapter shall meet the requirements set forth in
				subsection (c)(1).
											(e)Ineligibility
				of certain individualsNo person who has acted as an
				investigator, military judge, or member of a military commission under this
				chapter in any case may act later as trial counsel or military defense counsel
				in the same case. No person who has acted for the prosecution before a military
				commission under this chapter may act later in the same case for the defense,
				nor may any person who has acted for the defense before a military commission
				under this chapter act later in the same case for the prosecution.
										948l.Detail or
				employment of reporters and interpreters
										(a)Court
				reportersUnder such
				regulations as the Secretary of Defense may prescribe, the convening authority
				of a military commission under this chapter shall detail to or employ for the
				military commission qualified court reporters, who shall prepare a verbatim
				record of the proceedings of and testimony taken before the military
				commission.
										(b)InterpretersUnder such regulations as the Secretary of
				Defense may prescribe, the convening authority of a military commission under
				this chapter may detail to or employ for the military commission interpreters
				who shall interpret for the military commission, and, as necessary, for trial
				counsel and defense counsel for the military commission, and for the
				accused.
										(c)Transcript;
				recordThe transcript of a
				military commission under this chapter shall be under the control of the
				convening authority of the military commission, who shall also be responsible
				for preparing the record of the proceedings of the military commission.
										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 five members.
											(2)In a case in which the accused before
				a military commission under this chapter may be sentenced to a penalty of
				death, 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 under this chapter may
				be absent or excused after the military commission has been assembled for the
				trial of a case 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 under this
				chapter is reduced below the number of members required by subsection (a), the
				trial may not proceed unless the convening authority details new members
				sufficient to provide not less than such number. The trial may proceed with the
				new members present after the recorded evidence previously introduced before
				the members has been read to the military commission in the presence of the
				military judge, the accused (except as provided in 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 or other methods of
				  coercion.
										948s. Service of charges.

									948q.Charges and
				specifications
										(a)Charges and
				specificationsCharges and specifications against an accused in a
				military commission under this chapter shall be signed by a person subject to
				chapter 47 of this title under oath before a commissioned officer of the armed
				forces authorized to administer oaths and shall state—
											(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 or other methods
				of coercion
										(a)In
				generalNo person shall be required to testify against himself at
				a proceeding of a military commission under this chapter.
										(b)Statements
				obtained by tortureA statement obtained by use of torture shall
				not be admissible in a military commission under this chapter, except against a
				person accused of torture as evidence the statement was made.
										(c)Statements
				obtained before enactment of Detainee Treatment Act of 2005A
				statement obtained before December 30, 2005 (the date of the enactment of the
				Detainee Treatment Act of 2005), in which the degree of coercion is disputed
				may be admitted only if the military judge finds that—
											(1)the totality of
				the circumstances renders it reliable and possessing sufficient probative
				value; and
											(2)the interests of
				justice would best be served by admission of the statement into
				evidence.
											(d)Statements
				obtained after enactment of Detainee Treatment Act of 2005A
				statement obtained on or after December 30, 2005 (the date of the enactment of
				the Detainee Treatment Act of 2005), in which the degree of coercion is
				disputed may be admitted only if the military judge finds that—
											(1)the totality of
				the circumstances renders it reliable and possessing sufficient probative
				value;
											(2)the interests of
				justice would best be served by admission of the statement into evidence;
				and
											(3)the interrogation
				methods used to obtain the statement do not violate the cruel, unusual, or
				inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th
				Amendments to the United States Constitution.
											948s.Service of
				chargesThe trial counsel
				assigned to a case before a military commission under this chapter shall cause
				to be served upon the accused and military defense counsel a copy of the
				charges upon which trial is to be had 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)Procedures and
				Rules of EvidencePretrial, trial, and post-trial procedures,
				including elements and modes of proof, for cases triable by military commission
				under this chapter may be prescribed by the Secretary of Defense. Such
				procedures may not be contrary to or inconsistent with this chapter. Except as
				otherwise provided in this chapter or chapter 47 of this title, the procedures
				and rules of evidence applicable in trials by general courts-martial of the
				United States shall apply in trials by military commission under this
				chapter.
										(b)Exceptions(1)The Secretary of
				Defense, in consultation with the Attorney General, may make such exceptions in
				the applicability in trials by military commission under this chapter from the
				procedures and rules of evidence otherwise applicable in general courts-martial
				as may be required by the unique circumstances of the conduct of military and
				intelligence operations during hostilities or by other practical need.
											(2)Notwithstanding any exceptions
				authorized by paragraph (1), the procedures and rules of evidence in trials by
				military commission under this chapter shall include, at a minimum, the
				following rights:
												(A)To examine and respond to all evidence
				considered by the military commission on the issue of guilt or innocence and
				for sentencing.
												(B)To be present at all sessions of the
				military commission (other than those for deliberations or voting), except when
				excluded under section 949d of this title.
												(C)To the assistance of counsel.
												(D)To self-representation, if the accused
				knowingly and competently waives the assistance of counsel, subject to the
				provisions of paragraph (4).
												(E)To the suppression of evidence that is
				not reliable or probative.
												(F)To the suppression of evidence the
				probative value of which is substantially outweighed by—
													(i)the danger of unfair prejudice,
				confusion of the issues, or misleading the members; or
													(ii)considerations of undue delay,
				waste of time, or needless presentation of cumulative evidence.
													(3)In making exceptions in the
				applicability in trials by military commission under this chapter from the
				procedures and rules otherwise applicable in general courts-martial, the
				Secretary of Defense may provide the following:
												(A)Evidence seized outside the United
				States shall not be excluded from trial by military commission on the grounds
				that the evidence was not seized pursuant to a search warrant or
				authorization.
												(B)A statement of the accused that is
				otherwise admissible shall not be excluded from trial by military commission on
				grounds of alleged coercion or compulsory self-incrimination so long as the
				evidence complies with the provisions of section 948r of this title.
												(C)Evidence shall be admitted as
				authentic so long as—
													(i)the military judge of the military
				commission determines that there is sufficient evidence that the evidence is
				what it is claimed to be; and
													(ii)the military judge instructs the
				members that they may consider any issue as to authentication or identification
				of evidence in determining the weight, if any, to be given to the
				evidence.
													(D)(i)Except as provided in
				clause (ii), hearsay evidence not otherwise admissible under the rules of
				evidence applicable in trial by general courts-martial may be admitted in a
				trial by military commission if the proponent of the evidence makes known to
				the adverse party, sufficiently in advance to provide the adverse party with a
				fair opportunity to meet the evidence, the intention of the proponent to offer
				the evidence, and the particulars of the evidence (including information on the
				general circumstances under which the evidence was obtained). The disclosure of
				evidence under this clause is subject to the requirements and limitations
				applicable to the disclosure of classified information in section 949j(b) of
				this title.
													(ii)Hearsay evidence not otherwise
				admissible under the rules of evidence applicable in trial by general
				courts-martial shall not be admitted in a trial by military commission if the
				party opposing the admission of the evidence demonstrates that the evidence is
				unreliable or lacking in probative value.
													(4)(A)The accused in a
				military commission under this chapter who exercises the right to
				self-representation under paragraph (2)(D) shall conform his deportment and the
				conduct of the defense to the rules of evidence, procedure, and decorum
				applicable to trials by military commission.
												(B)Failure of the accused to conform to
				the rules described in subparagraph (A) may result in a partial or total
				revocation by the military judge of the right of self-representation under
				paragraph (2)(D). In such case, the detailed defense counsel of the accused or
				an appropriately authorized civilian counsel shall perform the functions
				necessary for the defense.
												(c)Delegation of
				authority to prescribe regulationsThe Secretary of Defense may
				delegate the authority of the Secretary to prescribe regulations under this
				chapter.
										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 military commission, or any member, military judge, or counsel thereof,
				with respect to the findings or sentence adjudged by the military commission,
				or with respect to any other exercises of its or their functions in the conduct
				of the proceedings.
											(2)No person may attempt to coerce or,
				by any unauthorized means, influence—
												(A)the action of a military commission
				under this chapter, or any member thereof, in reaching the findings or sentence
				in any case;
												(B)the action of any convening,
				approving, or reviewing authority with respect to their judicial acts;
				or
												(C)the exercise of professional judgment
				by trial counsel or defense counsel.
												(3)The provisions of this subsection
				shall not apply with respect to—
												(A)general instructional or informational
				courses in military justice if such courses are designed solely for the purpose
				of instructing members of a command in the substantive and procedural aspects
				of military commissions; or
												(B)statements and instructions given in
				open proceedings by a military judge or counsel.
												(b)Prohibition on
				consideration of actions on commission in evaluation of
				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 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 under this
				chapter shall prosecute in the name of the United States.
										(b)Defense
				counsel(1)The accused shall be
				represented in his defense before a military commission under this chapter as
				provided in this subsection.
											(2)The accused shall be represented by
				military counsel detailed under section 948k of this title.
											(3)The accused may be represented by
				civilian counsel if retained by the accused, provided that such civilian
				counsel—
												(A)is a United States citizen;
												(B)is admitted to the practice of law in
				a State, district, or possession of the United States, or before a Federal
				court;
												(C)has not been the subject of any
				sanction of disciplinary action by any court, bar, or other 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.
												(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 such person's sole discretion, may detail additional military
				counsel to represent the accused.
											(6)Defense counsel may cross-examine
				each witness for the prosecution who testifies before a military commission
				under this chapter.
											949d.Sessions
										(a)Sessions
				without presence of members(1)At any time after the
				service of charges which have been referred for trial by military commission
				under this chapter, the military judge may call the military 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;
												(C)if permitted by regulations prescribed
				by the Secretary of Defense, receiving the pleas of the accused; and
												(D)performing any other procedural
				function which may be performed by the military judge under this chapter or
				under rules prescribed pursuant to section 949a of this title and which does
				not require the presence of the members.
												(2)Except as provided in subsections
				(b), (c), and (d), 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)Deliberation or
				vote of membersWhen the members of a military commission under
				this chapter deliberate or vote, only the members may be present.
										(c)Closure of
				proceedings(1)The military judge may
				close to the public all or part of the proceedings of a military commission
				under this chapter.
											(2)The military judge may close to the
				public all or a portion of the proceedings under paragraph (1) only upon making
				a specific finding that such closure is necessary to—
												(A)protect information the disclosure of
				which could reasonably be expected to cause damage to the national security,
				including intelligence or law enforcement sources, methods, or activities;
				or
												(B)ensure the physical safety of
				individuals.
												(3)A finding under paragraph (2) may be
				based upon a presentation, including a presentation ex parte or in camera, by
				either trial counsel or defense counsel.
											(d)Exclusion of
				accused from certain proceedingsThe military judge may exclude
				the accused from any portion of a proceeding upon a determination that, after
				being warned by the military judge, the accused persists in conduct that
				justifies exclusion from the courtroom—
											(1)to ensure the
				physical safety of individuals; or
											(2)to prevent
				disruption of the proceedings by the accused.
											(e)Protection of
				classified information
											(1)National
				security privilege(A)Classified information
				shall be protected and is privileged from disclosure if disclosure would be
				detrimental to the national security. This rule applies to all stages of the
				proceedings of military commissions under this chapter.
												(B)The privilege referred to in
				subparagraph (A) may be claimed by the head of the executive or military
				department or government agency concerned based on a finding by the head of
				that department or agency that—
													(i)the information is properly
				classified; and
													(ii)disclosure would be detrimental to
				the national security.
													(C)A person who may claim the privilege
				referred to in subparagraph (A) may authorize a representative, witness, or
				trial counsel to claim the privilege and make the finding described in
				subparagraph (B) on behalf of such person. The authority of the representative,
				witness, or trial counsel to do so is presumed in the absence of evidence to
				the contrary.
												(2)Introduction of
				classified information
												(A)Alternatives to
				disclosureTo protect classified information from disclosure, the
				military judge, upon motion of trial counsel, shall authorize, to the extent
				practicable—
													(i)the deletion of
				specified items of classified information from documents to be introduced as
				evidence before the military commission;
													(ii)the substitution
				of a portion or summary of the information for such classified documents;
				or
													(iii)the
				substitution of a statement of relevant facts that the classified information
				would tend to prove.
													(B)Protection of
				sources, methods, or activitiesThe military judge, upon motion
				of trial counsel, shall permit trial counsel to introduce otherwise admissible
				evidence before the military commission, while protecting from disclosure the
				sources, methods, or activities by which the United States acquired the
				evidence if the military judge finds that (i) the sources, methods, or
				activities by which the United States acquired the evidence are classified, and
				(ii) the evidence is reliable. The military judge may require trial counsel to
				present to the military commission and the defense, to the extent practicable
				and consistent with national security, an unclassified summary of the sources,
				methods, or activities by which the United States acquired the evidence.
												(C)Assertion of
				national security privilege at trialDuring the examination of
				any witness, trial counsel may object to any question, line of inquiry, or
				motion to admit evidence that would require the disclosure of classified
				information. Following such an objection, the military judge shall take
				suitable action to safeguard such classified information. Such action may
				include the review of trial counsel's claim of privilege by the military judge
				in camera and on an ex parte basis, and the delay of proceedings to permit
				trial counsel to consult with the department or agency concerned as to whether
				the national security privilege should be asserted.
												(3)Consideration
				of privilege and related materialsA claim of privilege under
				this subsection, and any materials submitted in support thereof, shall, upon
				request of the Government, be considered by the military judge in camera and
				shall not be disclosed to the accused.
											(4)Additional
				regulationsThe Secretary of Defense may prescribe additional
				regulations, consistent with this subsection, for the use and protection of
				classified information during proceedings of military commissions under this
				chapter. A report on any regulations so prescribed, or modified, shall be
				submitted to the Committees on Armed Services of the Senate and the House of
				Representatives not later than 60 days before the date on which such
				regulations or modifications, as the case may be, go into effect.
											949e.ContinuancesThe military judge in a military commission
				under this chapter may, for reasonable cause, grant a continuance to any party
				for such time, and as often, as may appear to be just.
									949f.Challenges
										(a)Challenges
				authorizedThe military judge and members of a military
				commission under this chapter may be challenged by the accused or trial counsel
				for cause stated to the military commission. The military judge shall determine
				the relevance and validity of challenges for cause, and may not receive a
				challenge to more than one person at a time. Challenges by trial counsel shall
				ordinarily be presented and decided before those by the accused are
				offered.
										(b)Peremptory
				challengesThe accused and trial counsel are each entitled to one
				peremptory challenge, but the military judge may not be challenged except for
				cause.
										(c)Challenges
				against additional membersWhenever additional members are
				detailed to a military commission under this chapter, and after any challenges
				for cause against such additional members are presented and decided, the
				accused and trial counsel are each entitled to one peremptory challenge against
				members not previously subject to peremptory challenge.
										949g.Oaths
										(a)In
				general(1)Before performing their
				respective duties in a military commission under this chapter, military judges,
				members, trial counsel, defense counsel, reporters, and interpreters shall take
				an oath to perform their duties faithfully.
											(2)The form of the oath required by
				paragraph (1), the time and place of the taking thereof, the manner of
				recording thereof, and whether the oath shall be taken for all cases in which
				duties are to be performed or for a particular case, shall be as provided in
				regulations prescribed by the Secretary of Defense. The regulations may provide
				that—
												(A)an oath to perform faithfully duties
				as a military judge, trial counsel, or defense counsel may be taken at any time
				by any judge advocate or other person certified to be qualified or competent
				for the duty; and
												(B)if such an oath is taken, such oath
				need not again be taken at the time the judge advocate or other person is
				detailed to that duty.
												(b)WitnessesEach
				witness before a military commission under this chapter shall be examined on
				oath.
										(c)Oath
				definedIn this section, the term oath includes an
				affirmation.
										949h.Former
				jeopardy
										(a)In
				generalNo person may, without his consent, be tried by a
				military commission under this chapter a second time for the same
				offense.
										(b)Scope of
				trialNo proceeding in which the accused has been found guilty by
				military commission under this chapter upon any charge or specification is a
				trial in the sense of this section until the finding of guilty has become final
				after review of the case has been fully completed.
										949i.Pleas of the
				accused
										(a)Plea of not
				guiltyIf an accused in a military commission under this chapter
				after a plea of guilty sets up matter inconsistent with the plea, or if it
				appears that the accused has entered the plea of guilty through lack of
				understanding of its meaning and effect, or if the accused fails or refuses to
				plead, a plea of not guilty shall be entered in the record, and the military
				commission shall proceed as though the accused had pleaded not guilty.
										(b)Finding of
				guilt after guilty pleaWith respect to any charge or
				specification to which a plea of guilty has been made by the accused in a
				military commission under this chapter and accepted by the military judge, a
				finding of guilty of the charge or specification may be entered immediately
				without a vote. The finding shall constitute the finding of the military
				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 as provided in regulations prescribed by
				the Secretary of Defense.
											(2)Process issued in military
				commissions under this chapter to compel witnesses to appear and testify and to
				compel the production of other evidence—
												(A)shall be similar to that which courts
				of the United States having criminal jurisdiction may lawfully issue;
				and
												(B)shall run to any place where the
				United States shall have jurisdiction thereof.
												(b)Protection of
				classified information(1)With respect to the
				discovery obligations of trial counsel under this section, the military judge,
				upon motion of trial counsel, shall authorize, to the extent
				practicable—
												(A)the deletion of specified items of
				classified information from documents to be made available to the
				accused;
												(B)the substitution of a portion or
				summary of the information for such classified documents; or
												(C)the substitution of a statement
				admitting relevant facts that the classified information would tend
				prove.
												(2)The military judge, upon motion of
				trial counsel, shall authorize trial counsel, in the course of complying with
				discovery obligations under this section, to protect from disclosure the
				sources, methods, or activities by which the United States acquired evidence if
				the military judge finds that the sources, methods, or activities by which the
				United States acquired such evidence are classified. The military judge may
				require trial counsel to provide, to the extent practicable, an unclassified
				summary of the sources, methods, or activities by which the United States
				acquired such evidence.
											(c)Exculpatory
				evidence(1)As soon as practicable,
				trial counsel shall disclose to the defense the existence of any evidence known
				to trial counsel that reasonably tends to exculpate the accused. Where
				exculpatory evidence is classified, the accused shall be provided with an
				adequate substitute in accordance with the procedures under subsection
				(b).
											(2)In this subsection, the term
				evidence known to trial counsel, in the case of exculpatory
				evidence, means exculpatory evidence that the prosecution would be required to
				disclose in a trial by courts-martial under chapter 47 of this title.
											949k.Defense of
				lack of mental responsibility
										(a)Affirmative
				defenseIt is an affirmative defense in a trial by military
				commission under this chapter that, at the time of the commission of the acts
				constituting the offense, the accused, as a result of a severe mental disease
				or defect, was unable to appreciate the nature and quality or the wrongfulness
				of the acts. Mental disease or defect does not otherwise constitute a
				defense.
										(b)Burden of
				proofThe accused in a military commission under this chapter has
				the burden of proving the defense of lack of mental responsibility by clear and
				convincing evidence.
										(c)Findings
				following assertion of defenseWhenever lack of mental
				responsibility of the accused with respect to an offense is properly at issue
				in a military commission under this chapter, the military judge shall instruct
				the members as to the defense of lack of mental responsibility under this
				section and shall charge the members to find the accused—
											(1)guilty;
											(2)not guilty;
				or
											(3)subject to
				subsection (d), not guilty by reason of lack of mental responsibility.
											(d)Majority vote
				required for findingThe accused shall be found not guilty by
				reason of lack of mental responsibility under subsection (c)(3) only if a
				majority of the members present at the time the vote is taken determines that
				the defense of lack of mental responsibility has been established.
										949l.Voting and
				rulings
										(a)Vote by secret
				written ballotVoting by members of a military commission under
				this chapter on the findings and on the sentence shall be by secret written
				ballot.
										(b)Rulings(1)The military judge in a
				military commission under this chapter shall rule upon all questions of law,
				including the admissibility of evidence and all interlocutory questions arising
				during the proceedings.
											(2)Any ruling made by the military judge
				upon a question of law or an interlocutory question (other than the factual
				issue of mental responsibility of the accused) is conclusive and constitutes
				the ruling of the military commission. However, a military judge may change his
				ruling at any time during the trial.
											(c)Instructions
				prior to voteBefore a vote is taken of the findings of a
				military commission under this chapter, the military judge shall, in the
				presence of the accused and counsel, instruct the members as to the elements of
				the offense and charge the members—
											(1)that the accused
				must be presumed to be innocent until his guilt is established by legal and
				competent evidence beyond a reasonable doubt;
											(2)that in the case
				being considered, if there is a reasonable doubt as to the guilt of the
				accused, the doubt must be resolved in favor of the accused and he must be
				acquitted;
											(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 by a military commission under this chapter of any
				offense, except as provided in section 949i(b) of this title or by concurrence
				of two-thirds of the members present at the time the vote is taken.
										(b)Sentences(1)Except as provided in
				paragraphs (2) and (3), sentences shall be determined by a military commission
				by the concurrence of two-thirds of the members present at the time the vote is
				taken.
											(2)No person may be sentenced to death
				by a military commission, except insofar as—
												(A)the penalty of death has been
				expressly authorized under this chapter, chapter 47 of this title, or the law
				of war for an offense of which the accused has been found guilty;
												(B)trial counsel expressly sought the
				penalty of death by filing an appropriate notice in advance of trial;
												(C)the accused was convicted of the
				offense by the concurrence of all the members present at the time the vote is
				taken; and
												(D)all members present at the time the
				vote was taken concurred in the sentence of death.
												(3)No person may be sentenced to life
				imprisonment, or to confinement for more than 10 years, by a military
				commission under this chapter except by the concurrence of three-fourths of the
				members present at the time the vote is taken.
											(c)Number of
				members required for penalty of death(1)Except as provided in
				paragraph (2), in a case in which the penalty of death is sought, the number of
				members of the military commission under this chapter shall be not less than 12
				members.
											(2)In any case described in paragraph
				(1) in which 12 members are not reasonably available for a military commission
				because of physical conditions or military 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 less than the number of members so specified. In any such
				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 under this chapter
				shall announce its findings and sentence to the parties as soon as
				determined.
									949o.Record of
				trial
										(a)Record;
				authenticationEach military commission under this chapter shall
				keep a separate, 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 a member if the trial counsel is unable to
				authenticate it by reason of his death, disability, or absence. Where
				appropriate, and as provided in regulations prescribed by the Secretary of
				Defense, the record of a military commission under this chapter may contain a
				classified annex.
										(b)Complete record
				requiredA complete record of the proceedings and testimony shall
				be prepared in every military commission under this chapter.
										(c)Provision of
				copy to accusedA copy of the record of the proceedings of the
				military commission under this chapter shall be given the accused as soon as it
				is authenticated. If the record contains classified information, or a
				classified annex, the accused shall receive a redacted version of the record
				consistent with the requirements of section 949d(e) of this title. Defense
				counsel shall have access to the unredacted record, as provided in regulations
				prescribed by the Secretary of Defense.
										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 under this chapter or inflicted
				under this chapter upon any person subject to this chapter. The use of irons,
				single or double, except for the purpose of safe custody, is prohibited under
				this chapter.
									949t.Maximum
				limitsThe punishment which a
				military commission under this chapter may direct for an offense may not exceed
				such limits as the President or Secretary of Defense may prescribe for that
				offense.
									949u.Execution of
				confinement
										(a)In
				generalUnder such
				regulations as the Secretary of Defense may prescribe, a sentence of
				confinement adjudged by a military commission under this chapter 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 an armed force are
				subject to the same discipline and treatment as persons confined or committed
				by the courts of the United States or of the State, District of Columbia, or
				place in which the institution is situated.
										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.
										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 under this
				chapter 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 by a military commission under this chapter 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 accused has been give an authenticated record of trial
				under section 949o(c) of this title.
												(B)If the accused shows that additional
				time is required for the accused to make a submittal under paragraph (1), the
				convening authority may, for good cause, extend the applicable period under
				subparagraph (A) for not more than an additional 20 days.
												(3)The accused may waive his right to
				make a submittal to the convening authority under paragraph (1). Such a waiver
				shall be made in writing, and may not be revoked. For the purposes of
				subsection (c)(2), the time within which the accused may make a submittal under
				this subsection shall be deemed to have expired upon the submittal of a waiver
				under this paragraph to the convening authority.
											(c)Action by
				convening authority(1)The authority under
				this subsection to modify the findings and sentence of a military commission
				under this chapter is a matter of the sole discretion and prerogative of the
				convening authority.
											(2)The convening authority is not
				required to take action on the findings of a military commission under this
				chapter. If the convening authority takes action on the findings, the convening
				authority may, in his sole discretion, only—
												(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.
												(3)(A)The convening authority
				shall take action on the sentence of a military commission under this
				chapter.
												(B)Subject to regulations prescribed by
				the Secretary of Defense, action under this paragraph may be taken only after
				consideration of any matters submitted by the accused under subsection (b) or
				after the time for submitting such matters expires, whichever is
				earlier.
												(C)In taking action under this
				paragraph, the convening authority may, in his sole discretion, approve,
				disapprove, commute, or suspend the sentence in whole or in part. The convening
				authority may not increase a sentence beyond that which is found by the
				military commission.
												(4)The convening authority shall serve
				on the 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 of a military commission under this
				chapter may, in his sole discretion, order a proceeding in revision or a
				rehearing.
											(2)(A)Except as provided in
				subparagraph (B), a proceeding in revision may be ordered by the convening
				authority if—
													(i)there is an apparent error or omission
				in the record; or
													(ii)the record shows improper or
				inconsistent action by the military commission with respect to the findings or
				sentence that can be rectified without 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
				a 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; or
													(iii)increase the severity of the
				sentence unless the sentence prescribed for the offense is mandatory.
													(3)A rehearing may be ordered by the
				convening authority if the convening authority disapproves the findings and
				sentence and states the reasons for disapproval of the findings. If the
				convening authority disapproves the finding and sentence and does not order a
				rehearing, the convening authority shall dismiss the charges. A rehearing as to
				the findings may not be ordered by the convening authority when there is a lack
				of sufficient evidence in the record to support the findings. A rehearing as to
				the sentence may be ordered by the convening authority if the convening
				authority disapproves the sentence.
											950c.Waiver or
				withdrawal of appeal
										(a)Waiver of right
				of review(1)An accused may file
				with the convening authority a statement expressly waiving the right of the
				accused to appellate review by the Court of Military Commission Review under
				section 950f of this title of the final decision of the military commission
				under this chapter.
											(2)A waiver under paragraph (1) shall be
				signed by both the accused and a defense counsel.
											(3)A waiver under paragraph (1) must be
				filed, if at all, within 10 days after notice of the action is served on the
				accused or on defense counsel under section 950b(c)(4) of this title. The
				convening authority, for good 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 extends to 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
				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 under section 950f of this title of any order or ruling of the military
				judge that—
												(A)terminates proceedings of the military
				commission 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
				(c), (d), or (e) 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 military commission with respect to a 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 five days after the date of the order or ruling.
										(c)AppealAn
				appeal under this section shall be forwarded, by means specified in regulations
				prescribed the Secretary of Defense, directly to the Court of Military
				Commission Review. In ruling on an appeal under this section, the Court may act
				only with respect to matters of law.
										950e.Rehearings
										(a)Composition of
				military commission for rehearingEach rehearing under this chapter shall
				take place before a military commission under this chapter composed of members
				who were not members of the military 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 military commission;
				and
												(B)no
				sentence in excess of or more than the original sentence may be imposed
				unless—
													(i)the sentence is based upon a finding of
				guilty of an offense not considered upon the merits in the original
				proceedings; or
													(ii)the sentence prescribed for the offense is
				mandatory.
													(2)Upon a rehearing, if the sentence approved
				after the first military commission was in accordance with a pretrial agreement
				and the accused at the rehearing changes his plea with respect to the charges
				or specifications upon which the pretrial agreement was based, or otherwise
				does not comply with pretrial agreement, the sentence as to those charges or
				specifications may include any punishment not in excess of that lawfully
				adjudged at the first military commission.
											950f.Review by
				Court of Military Commission Review
										(a)EstablishmentThe
				Secretary of Defense shall establish a Court of Military Commission Review
				which shall be composed of one or more panels, and each such panel shall be
				composed of not less than three appellate military judges. For the purpose of
				reviewing military commission decisions under this chapter, the Court may sit
				in panels or as a whole in accordance with rules prescribed by the
				Secretary.
										(b)Appellate
				military judgesThe Secretary shall assign appellate military
				judges to a Court of Military Commission Review. 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. No person
				may 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 a 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 a case reviewed by the Court of Military Commission
				Review under this section, the Court 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
										(a)Review by
				United States Court of Appeals for the District of Columbia
				Circuit(1)Subject to the
				provisions of this subsection, the United States Court of Appeals for the
				District of Columbia Circuit shall have exclusive jurisdiction to determine the
				final validity of any judgment rendered by a military commission under this
				chapter.
											(2)The United States Court of Appeals
				for the District of Columbia Circuit may not determine the final validity of a
				judgment of a military commission under this subsection until all other appeals
				from the judgment under this chapter have been waived or exhausted.
											(3)(A)An accused may seek a
				determination by the United States Court of Appeals for the District of
				Columbia Circuit of the final validity of the judgment of the military
				commission under this subsection only upon petition to the Court for such
				determination.
												(B)A petition on a judgment under
				subparagraph (A) shall be filed by the accused in the Court not later than 20
				days after the date on which—
													(i)written notice of the final decision
				of the military commission is served on the accused or defense counsel;
				or
													(ii)the accused submits, in the form
				prescribed by section 950c of this title, a written notice waiving the right of
				the accused to review by the Court of Military Commission Review under section
				950f of this title.
													(C)The accused may not file a petition
				under subparagraph (A) if the accused has waived the right to appellate review
				under section 950c(a) of this title.
												(4)The determination by the United
				States Court of Appeals for the District of Columbia Circuit of the final
				validity of a judgment of a military commission under this subsection shall be
				governed by the provisions of section 1005(e)(3) of the Detainee Treatment Act
				of 2005 (42 U.S.C. 801 note).
											(b)Review by
				Supreme CourtThe Supreme Court of the United States may review
				by writ of certiorari pursuant to section 1257 of title 28 the final judgment
				of the United States Court of Appeals for the District of Columbia Circuit in a
				determination under subsection (a).
										950h.Appellate
				counsel
										(a)AppointmentThe
				Secretary of Defense shall, by regulation, establish procedures for the
				appointment of appellate counsel for the United States and for the accused in
				military commissions under this chapter. Appellate counsel shall meet the
				qualifications of counsel for 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 United States
				Court of Appeals for the District of Columbia Circuit and 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 before the United
				States Court of Appeals for the District of Columbia Circuit or the Supreme
				Court by military appellate counsel, 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 judgement as to the legality of the
				proceedings (and with respect to death, approval under subsection (a)).
											(2)A judgement as to legality of
				proceedings is final for purposes of paragraph (1) when—
												(A)the time for the accused to file a
				petition for review by the United States Court of Appeals for the District of
				Columbia Circuit has expired and the accused has not filed a timely petition
				for such review and the case is not otherwise under review by the Court;
				or
												(B)review is completed in accordance with
				the judgment of the United States Court of Appeals for the District of Columbia
				Circuit and (A) a petition for a writ of certiorari is not timely filed, (B)
				such a petition is denied by the Supreme Court, or (C) review is otherwise
				completed in accordance with the judgment of the Supreme Court.
												(c)Suspension of
				sentenceThe Secretary of the Defense, or the convening authority
				acting on the case (if other than the Secretary), may suspend the execution of
				any sentence or part thereof in the case, except a sentence of death.
										950j.Finality of
				proceedings, findings, and sentences
										(a)FinalityThe
				appellate review of records of trial provided by this chapter, and the
				proceedings, findings, and sentences of military commissions as approved,
				reviewed, or affirmed as required by this chapter, are final and conclusive.
				Orders publishing the proceedings of military commissions under this chapter
				are binding upon all departments, courts, agencies, and officers of the United
				States, except as otherwise provided by 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 provision of 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 under this chapter, including challenges to the lawfulness of
				procedures of military commissions under this chapter.
										VIIPunitive
				Matters

										Sec.
										950aa. Definitions; construction of certain offenses; common
				  circumstances.
										950bb. Statement of substantive offenses.
										950cc. Principals.
										950dd. Accessory after the fact.
										950ee. Conviction of lesser offenses.
										950ff. Attempts.
										950gg. Solicitation.
										950hh. Murder of protected persons.
										950ii. Attacking civilians.
										950jj. Attacking civilian objects.
										950kk. Attacking protected property.
										950ll. Pillaging.
										950mm. Denying quarter.
										950nn. Taking hostages.
										950oo. Employing poison or similar weapons.
										950pp. Using protected persons as a shield.
										950qq. Using protected property as a shield.
										950rr. Torture.
										950ss. Cruel or inhuman
				  treatment.
										950tt. Intentionally causing serious bodily injury.
										950uu. Mutilating or maiming.
										950vv. Murder in violation of the law of war.
										950ww. Destruction of property in violation of the law of
				  war.
										950xx. Using treachery or perfidy.
										950yy. Improperly using a flag of truce.
										950zz. Improperly using a distinctive emblem.
										950aaa. Intentionally mistreating a dead body.
										950bbb. Rape.
										950ccc. Hijacking or hazarding a vessel or
				  aircraft.
										950ddd. Terrorism.
										950eee. Providing material support for terrorism.
										950fff. Wrongfully aiding the enemy.
										950ggg. Spying.
										950hhh. Conspiracy.
										950iii. Contempt.
										950jjj. Perjury and obstruction of justice.

									950aa.Definitions;
				construction of certain offenses; common circumstances
										(a)DefinitionsIn this subchapter:
											(1)The term
				military objective means combatants and those objects during an
				armed conflict which, by their nature, location, purpose, or use, effectively
				contribute to the war-fighting or war-sustaining capability of an opposing
				force and whose total or partial destruction, capture, or neutralization would
				constitute a definite military advantage to the attacker under the
				circumstances at the time of an attack.
											(2)The term
				protected person means 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 out of combat by sickness,
				wounds, or detention, and military medical or religious personnel.
											(3)The term
				protected property means any property specifically protected by
				the law of war, including buildings dedicated to religion, education, art,
				science, or charitable purposes, historic monuments, hospitals, and places
				where the sick and wounded are collected, but only if and to the extent such
				property is not being used for military purposes or is not otherwise a military
				objective. The term includes objects properly identified by one of the
				distinctive emblems of the Geneva Conventions, but does not include civilian
				property that is a military objective.
											(b)Construction of
				certain offensesThe intent required for offenses under sections
				950hh, 950ii, 950jj, 950kk, and 950ss of this title precludes their
				applicability with regard to collateral damage or to death, damage, or injury
				incident to a lawful attack.
										(c)Common
				circumstancesAn offense specified in this subchapter is triable
				by military commission under this chapter only if the offense is committed in
				the context of and associated with armed conflict.
										950bb.Statement of
				substantive offenses
										(a)PurposeThe
				provisions of this subchapter codify offenses that have traditionally been
				triable by military commissions. This chapter does not establish new crimes
				that did not exist before its enactment, but rather codifies those crimes for
				trial by military commission.
										(b)EffectBecause
				the provisions of this subchapter (including provisions that incorporate
				definitions in other provisions of law) are declarative of existing law, they
				do not preclude trial for crimes that occurred before the date of the enactment
				of this chapter.
										950cc.PrincipalsAny person is punishable as a principle
				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.
										950dd.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 under this chapter may direct.
									950ee.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 attempt to commit
				either the offense charged or an offense necessarily included therein.
									950ff.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 under this chapter 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.
										950gg.SolicitationAny person subject to this chapter who
				solicits or advises another or others to commit one or more substantive
				offenses triable by military commission under this chapter shall, if the
				offense solicited or advised is attempted or 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 under this chapter may direct.
									950hh.Murder of
				protected personsAny person
				subject to this chapter who intentionally kills one or more protected persons
				shall be punished by death or such other punishment as a military commission
				under this chapter may direct.
									950ii.Attacking
				civiliansAny person subject
				to this chapter who intentionally engages in an attack upon a civilian
				population as such, or individual civilians not taking active part in
				hostilities, shall be punished, if death results to one or more of the victims,
				by death or such other punishment as a military commission under this chapter
				may direct, and, if death does not result to any of the victims, by such
				punishment, other than death, as a military commission under this chapter may
				direct.
									950jj.Attacking
				civilian objectsAny person
				subject to this chapter who intentionally engages in an attack upon a civilian
				object that is not a military objective shall be punished as a military
				commission under this chapter may direct.
									950kk.Attacking
				protected propertyAny person
				subject to this chapter who intentionally engages in an attack upon protected
				property shall be punished as a military commission under this chapter may
				direct.
									950ll.PillagingAny person subject to this chapter 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 punished as a
				military commission under this chapter may direct.
									950mm.Denying
				quarterAny person subject to
				this chapter who, with effective command or control over subordinate groups,
				declares, orders, or otherwise indicates to those groups that there shall be no
				survivors or surrender accepted, with the intent to threaten an adversary or to
				conduct hostilities such that there would be no survivors or surrender
				accepted, shall be punished as a military commission under this chapter may
				direct.
									950nn.Taking
				hostagesAny person subject to
				this chapter 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 punished, if death
				results to one or more of the victims, by death or such other punishment as a
				military commission under this chapter may direct, and, if death does not
				result to any of the victims, by such punishment, other than death, as a
				military commission under this chapter may direct.
									950oo.Employing
				poison or similar weaponsAny
				person subject to this chapter who intentionally, as a method of warfare,
				employs a substance or weapon that releases a substance that causes death or
				serious and lasting damage to health in the ordinary course of events, through
				its asphyxiating, bacteriological, or toxic properties, shall be punished, if
				death results to one or more of the victims, by death or such other punishment
				as a military commission under this chapter may direct, and, if death does not
				result to any of the victims, by such punishment, other than death, as a
				military commission under this chapter may direct.
									950pp.Using
				protected persons as a shieldAny person subject to this chapter 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 punished, if death results to one or more of the
				victims, by death or such other punishment as a military commission under this
				chapter may direct, and, if death does not result to any of the victims, by
				such punishment, other than death, as a military commission under this chapter
				may direct.
									950qq.Using
				protected property as a shieldAny person subject to this chapter who
				positions, or otherwise takes advantage of the location of, protected property
				with the intent to shield a military objective from attack, or to shield,
				favor, or impede military operations, shall be punished as a military
				commission under this chapter may direct.
									950rr.Torture
										(a)OffenseAny
				person subject to this chapter 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 punished, if death results to one or more
				of the victims, by death or such other punishment as a military commission
				under this chapter may direct, and, if death does not result to any of the
				victims, by such punishment, other than death, as a military commission under
				this chapter may direct.
										(b)Severe mental
				pain or suffering definedIn this section, the term severe
				mental pain or suffering has the meaning given that term in section
				2340(2) of title 18.
										950ss.Cruel or
				inhuman treatment
										(a)OffenseAny person subject to this chapter who
				commits, or conspires or attempts to commit, an act intended to inflict severe
				or serious physical or mental pain or suffering (other than pain or suffering
				incidental to lawful sanctions), including serious physical abuse, upon another
				within his custody or control shall be punished, if death results to the
				victim, by death or such other punishment as a military commission under this
				chapter may direct, and, if death does not result to the victim, by such
				punishment, other than death, as a military commission under this chapter may
				direct.
										(b)DefinitionsIn
				this section:
											(1)The term
				severe mental pain or suffering has the meaning given that term in
				section 2340(2) of title 18.
											(2)The term
				serious physical pain or suffering means bodily injury that
				involves—
												(A)a substantial
				risk of death;
												(B)extreme physical
				pain;
												(C)a burn or
				physical disfigurement of a serious nature (other than cuts, abrasions, or
				bruises); or
												(D)significant loss
				or impairment of the function of a bodily member, organ, or mental
				faculty.
												(3)The term
				serious mental pain or suffering has the meaning given the term
				severe mental pain or suffering in section 2340(2) of title 18,
				except that—
												(A)the term
				serious shall replace the term severe where it
				appears; and
												(B)as to conduct
				occurring after the date of the enactment of the Military Commission Act of
				2006, the term serious and non-transitory mental harm (which need not be
				prolonged) shall replace the term prolonged mental harm
				where it appears.
												950tt.Intentionally
				causing serious bodily injury
										(a)OffenseAny
				person subject to this chapter who intentionally causes serious bodily injury
				to one or more persons, including lawful combatants, in violation of the law of
				war shall be punished, if death results to one or more of the victims, by death
				or such other punishment as a military commission under this chapter may
				direct, and, if death does not result to any of the victims, by such
				punishment, other than death, as a military commission under this chapter may
				direct.
										(b)Serious bodily
				injury definedIn this section, the term serious bodily
				injury means bodily injury which involves—
											(1)a substantial
				risk of death;
											(2)extreme physical
				pain;
											(3)protracted and
				obvious disfigurement; or
											(4)protracted loss
				or impairment of the function of a bodily member, organ, or mental
				faculty.
											950uu.Mutilating
				or maimingAny person subject
				to this chapter who intentionally injures one or more protected persons by
				disfiguring the person or persons by any mutilation of the person or persons,
				or by permanently disabling any member, limb, or organ of the body of the
				person or persons, without any legitimate medical or dental purpose, shall be
				punished, if death results to one or more of the victims, by death or such
				other punishment as a military commission under this chapter may direct, and,
				if death does not result to any of the victims, by such punishment, other than
				death, as a military commission under this chapter may direct.
									950vv.Murder in
				violation of the law of warAny person subject to this chapter who
				intentionally kills one or more persons, including lawful combatants, in
				violation of the law of war shall be punished by death or such other punishment
				as a military commission under this chapter may direct.
									950ww.Destruction
				of property in violation of the law of warAny person subject to this chapter who
				intentionally destroys property belonging to another person in violation of the
				law of war shall punished as a military commission under this chapter may
				direct.
									950xx.Using
				treachery or perfidyAny
				person subject to this chapter who, after inviting the confidence or belief of
				one or more persons that they were entitled to, or obliged to accord,
				protection under the law of war, intentionally makes use of that confidence or
				belief in killing, injuring, or capturing such person or persons shall be
				punished, if death results to one or more of the victims, by death or such
				other punishment as a military commission under this chapter may direct, and,
				if death does not result to any of the victims, by such punishment, other than
				death, as a military commission under this chapter may direct.
									950yy.Improperly
				using a flag of truceAny
				person subject to this chapter who uses a flag of truce to feign an intention
				to negotiate, surrender, or otherwise suspend hostilities when there is no such
				intention shall be punished as a military commission under this chapter may
				direct.
									950zz.Improperly
				using a distinctive emblemAny
				person subject to this chapter 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 punished as a military commission under this chapter
				may direct.
									950aaa.Intentionally
				mistreating a dead bodyAny
				person subject to this chapter who intentionally mistreats the body of a dead
				person, without justification by legitimate military necessary, shall be
				punished as a military commission under this chapter may direct.
									950bbb.RapeAny person subject to this chapter 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 punished as a military commission under this chapter may
				direct.
									950ccc.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 is not a legitimate military
				objective shall be punished, if death results to one or more of the victims, by
				death or such other punishment as a military commission under this chapter may
				direct, and, if death does not result to any of the victims, by such
				punishment, other than death, as a military commission under this chapter may
				direct.
									950ddd.TerrorismAny person subject to this chapter who
				intentionally kills or inflicts great bodily harm on one or more protected
				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 punished, if death results to one or more
				of the victims, by death or such other punishment as a military commission
				under this chapter may direct, and, if death does not result to any of the
				victims, by such punishment, other than death, as a military commission under
				this chapter may direct.
									950eee.Providing
				material support for terrorism
										(a)OffenseAny
				person subject to this chapter 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 set forth in section 950ddd of this
				title), 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
				so set forth), shall be punished as a military commission under this chapter
				may direct.
										(b)Material
				support or resources definedIn this section, the term
				material support or resources has the meaning given that term in
				section 2339A(b) of title 18.
										950fff.Wrongfully
				aiding the enemyAny person
				subject to this chapter who, in breach of an allegiance or duty to the United
				States, knowingly and intentionally aids an enemy of the United States, or one
				of the co-belligerents of the enemy, shall be punished as a military commission
				under this chapter may direct.
									950ggg.SpyingAny person subject to this chapter who, in
				violation of the law of war and 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 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 the co-belligerents of
				the enemy, shall be punished by death or such other punishment as a military
				commission under this chapter may direct.
									950hhh.ConspiracyAny person subject to this chapter who
				conspires to commit one or more substantive offenses triable by military
				commission under this subchapter, and who knowingly does any overt act to
				effect the object of the conspiracy, shall be punished, if death results to one
				or more of the victims, by death or such other punishment as a military
				commission under this chapter may direct, and, if death does not result to any
				of the victims, by such punishment, other than death, as a military commission
				under this chapter may direct.
									950iii.ContemptA military commission under this chapter 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.
									950jjj.Perjury and
				obstruction of justiceA
				military commission under this chapter may try offenses and impose such
				punishment as the military commission may direct for perjury, false testimony,
				or obstruction of justice related to the military
				commission.
									.
					(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 Commissions948a.”.

					(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 of Defense shall submit to the Committees on Armed
			 Services 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 modification.
					105.Amendments to
			 other laws
				(a)Detainee
			 Treatment Act of 2005Section 1004(b) of the Detainee Treatment
			 Act of 2005 (title X of Public Law 109–148; 119 Stat. 2740; 42 U.S.C.
			 200dd–1(b)) is amended—
					(1)by striking
			 may provide and inserting shall provide;
					(2)by inserting
			 or investigation after criminal prosecution;
			 and
					(3)by inserting
			 whether before United States courts or agencies, foreign courts or
			 agencies, or international courts or agencies, after described
			 in that subsection,.
					(b)Uniform Code of
			 Military JusticeChapter 47 of title, 10, United States Code (the
			 Uniform Code of Military Justice), is amended as follows:
					(1)Section 802
			 (article 2 of the Uniform Code of Military Justice) is amended by adding at the
			 end the following new paragraph:

							(13)Lawful enemy
				combatants (as that term is defined in section 948a(3) of this title) who
				violate the law of
				war.
							.
					(2)Section 821
			 (article 21 of the Uniform Code of Military Justice) is amended by striking
			 by statute or law of war.
					(3)Section 836(a)
			 (article 36(a) of the Uniform Code of Military Justice) is amended by inserting
			 (other than military commissions under chapter 47A of this
			 title) after other military tribunals.
					(c)Punitive
			 Article of ConspiracySection 881 of title 10, United States Code
			 (article 81 of the Uniform Code of Military Justice)), is amended—
					(1)by inserting
			 (a) before Any person; and
					(2)by adding at the
			 end the following new subsection:

							(b)Any person
				subject to this chapter or chapter 47A of this title who conspires with any
				other person to commit an offense under the law of war, and who knowingly does
				an overt act to effect the object of the conspiracy, shall be punished, if
				death results to one or more of the victims, by death or such other punishment
				as a court-martial or military commission may direct, and, if death does not
				result to any of the victims, by such punishment, other than death, as a
				court-martial or military commission may
				direct.
							.
					(d)Review of
			 judgments of military commissions
					(1)Review by
			 supreme courtSection 1259 of title 28, United States Code, is
			 amended by adding at the end the following new paragraph:

							(5)Cases tried by
				military commission and reviewed by the United States Court of Appeals for the
				District of Columbia Circuit under section 950g of title
				10.
							.
					(2)Detainee
			 treatment act of 2005Section 1005(e)(3) of the Detainee
			 Treatment Act of 2005 (title X of Public Law 109–148; 119 Stat. 2740; 10 U.S.C.
			 801 note) is amended—
						(A)in subparagraph (A), by striking
			 pursuant to Military Commission Order No. 1. dated August 31, 2005 (or
			 any successor military order) and inserting by a military
			 commission under chapter 47A of title 10, United States Code;
						(B)by striking subparagraph (B) and
			 inserting the following new subparagraph (B):

								(B)Grant of
				reviewReview under this paragraph shall be as of
				right.
								;
						(C)in subparagraph (C)—
							(i)in clause (i)—
								(I)by striking pursuant to the military
			 order and inserting by a military commission; and
								(II)by striking at Guantanamo Bay,
			 Cuba; and
								(ii)in clause (ii), by striking
			 pursuant to such military order and inserting by the
			 military commission; and
							(D)in subparagraph (D)(i), by striking
			 specified in the military order and inserting specified
			 for a military commission.
						106.Habeas corpus
			 matters
				(a)In
			 generalSection 2241 of title 28, United States Code, is
			 amended—
					(1)by striking
			 subsection (e) (as added by section 1005(e)(1) of Public Law 109–148 (119 Stat.
			 2742)) and by striking subsection (e) (as added by added by section 1405(e)(1)
			 of Public Law 109–163 (119 Stat. 3477)); and
					(2)by adding at the
			 end the following new subsection:

							(e)(1)No court, justice, or
				judge shall have jurisdiction to hear or consider an application for a writ of
				habeas corpus filed by or on behalf of an alien detained by the United States
				who—
									(A)is currently in United States custody;
				and
									(B)has been determined by the United
				States to have been properly detained as an enemy combatant or is awaiting such
				determination.
									(2)Except as provided in paragraphs (2)
				and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801
				note), no court, justice, or judge shall have jurisdiction to hear or consider
				any other action against the United States or its agents relating to any aspect
				of the detention, transfer, treatment, trial, or conditions of confinement of
				an alien detained by the United States who—
									(A)is currently in United States custody;
				and
									(B)has been determined by the United
				States to have been properly detained as an enemy combatant or is awaiting such
				determination.
									.
					(b)Effective
			 dateThe amendments made by subsection (a) shall take effect on
			 the date of the enactment of this Act, and shall apply to all cases, without
			 exception, pending on or after the date of the enactment of this Act which
			 relate to any aspect of the detention, transfer, treatment, trial, or
			 conditions of detention of an alien detained by the United States since
			 September 11, 2001.
				107.Treaty
			 obligations not establishing grounds for certain claims
				(a)In
			 generalNo person may invoke the Geneva Conventions, or any
			 protocols thereto, in any habeas or civil action or proceeding to which the
			 United States, or a current or former officer, employee, member of the Armed
			 Forces, or other agent of the United States, is a party, as a source of rights
			 in any court of the United States or its States or territories.
				(b)Geneva
			 conventions definedIn this section, the term Geneva
			 Conventions means—
					(1)the Convention
			 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
			 in the Field, done at Geneva August 12, 1949 (6 UST 3217);
					(2)the Convention
			 for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked
			 Members of the Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST
			 3217);
					(3)the Convention
			 Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949
			 (6 UST 3316); and
					(4)the Convention
			 Relative to the Protection of Civilian Persons in Time of War, done at Geneva
			 August 12, 1949 (6 UST 3516).
					108.Implementation
			 of treaty obligations
				(a)Implementation
			 of treaty obligations
					(1)In
			 generalThe acts enumerated in subsection (d) of section 2441 of
			 title 18, United States Code, as added by subsection (b) of this section, and
			 in subsection (c) of this section, constitute violations of common Article 3 of
			 the Geneva Conventions prohibited by United States law.
					(2)Prohibition on
			 grave breachesThe provisions of section 2441 of title 18, United
			 States Code, as amended by this section, fully satisfy the obligation under
			 Article 129 of the Third Geneva Convention for the United States to provide
			 effective penal sanctions for grave breaches which are encompassed in common
			 Article 3 in the context of an armed conflict not of an international
			 character. No foreign or international source of law shall supply a basis for a
			 rule of decision in the courts of the United States in interpreting the
			 prohibitions enumerated in subsection (d) of such section 2441.
					(3)Interpretation
			 by the president(A)As provided by the
			 Constitution and by this section, the President has the authority for the
			 United States to interpret the meaning and application of the Geneva
			 Conventions and to promulgate higher standards and administrative regulations
			 for violations of treaty obligations which are not grave breaches of the Geneva
			 Conventions.
						(B)The President shall issue
			 interpretations described by subparagraph (A) by Executive Order published in
			 the Federal Register.
						(C)Any Executive Order published under
			 this paragraph shall be authoritative (as to non-grave breach provisions of
			 common Article 3) as a matter of United States law, in the same manner as other
			 administrative regulations.
						(D)Nothing in this section shall be
			 construed to affect the constitutional functions and responsibilities of
			 Congress and the judicial branch of the United States.
						(4)DefinitionsIn
			 this subsection:
						(A)The term
			 Geneva Conventions means—
							(i)the
			 Convention for the Amelioration of the Condition of the Wounded and Sick in
			 Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3217);
							(ii)the Convention
			 for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked
			 Members of the Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST
			 3217);
							(iii)the Convention
			 Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949
			 (6 UST 3316); and
							(iv)the Convention
			 Relative to the Protection of Civilian Persons in Time of War, done at Geneva
			 August 12, 1949 (6 UST 3516).
							(B)The term
			 Third Geneva Convention means the international convention
			 referred to in subparagraph (A)(iii).
						(b)Revision to war
			 crimes offense under Federal criminal code
					(1)In
			 generalSection 2441 of title 18, United States Code, is
			 amended—
						(A)in subsection
			 (c), by striking paragraph (3) and inserting the following new paragraph
			 (3):

								(3)which constitutes
				a grave breach of common Article 3 as defined in subsection (d) when committed
				in the context of and in association with an armed conflict not of an
				international character; or
								;
				and
						(B)by adding at the
			 end the following new subsection:

								(d)Common article
				3 violations
									(1)Prohibited
				conductIn subsection (c)(3), the term grave breach of
				common Article 3 means any conduct (such conduct constituting a grave
				breach of common Article 3 of the international conventions done at Geneva
				August 12, 1949), as follows:
										(A)TortureThe
				act of a 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.
										(B)Cruel or
				inhuman treatmentThe act of a person who commits, or conspires
				or attempts to commit, an act intended to inflict severe or serious physical or
				mental pain or suffering (other than pain or suffering incidental to lawful
				sanctions), including serious physical abuse, upon another within his custody
				or control.
										(C)Performing
				biological experimentsThe act of a 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 or
				dental purpose and in so doing endangers the body or health of such person or
				persons.
										(D)MurderThe
				act of a 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 subsection, one or more persons taking no active part
				in the hostilities, including those placed out of combat by sickness, wounds,
				detention, or any other cause.
										(E)Mutilation or
				maimingThe act of a 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
				subsection, one or more persons taking no active part in the hostilities,
				including those placed out of 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.
										(F)Intentionally
				causing serious bodily injuryThe act of a person who
				intentionally causes, or conspires or attempts to cause, serious bodily injury
				to one or more persons, including lawful combatants, in violation of the law of
				war.
										(G)RapeThe
				act of a 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.
										(H)Sexual assault
				or abuseThe act of a 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.
										(I)Taking
				hostagesThe act of a 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.
										(2)DefinitionsIn
				the case of an offense under subsection (a) by reason of subsection
				(c)(3)—
										(A)the term
				severe mental pain or suffering shall be applied for purposes of
				paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in
				section 2340(2) of this title;
										(B)the term
				serious bodily injury shall be applied for purposes of paragraph
				(1)(F) in accordance with the meaning given that term in section 113(b)(2) of
				this title;
										(C)the term
				sexual contact shall be applied for purposes of paragraph (1)(G)
				in accordance with the meaning given that term in section 2246(3) of this
				title;
										(D)the term
				serious physical pain or suffering shall be applied for purposes
				of paragraph (1)(B) as meaning bodily injury that involves—
											(i)a
				substantial risk of death;
											(ii)extreme physical
				pain;
											(iii)a burn or
				physical disfigurement of a serious nature (other than cuts, abrasions, or
				bruises); or
											(iv)significant loss
				or impairment of the function of a bodily member, organ, or mental faculty;
				and
											(E)the term
				serious mental pain or suffering shall be applied for purposes of
				paragraph (1)(B) in accordance with the meaning given the term severe
				mental pain or suffering (as defined in section 2340(2) of this title),
				except that—
											(i)the term
				serious shall replace the term severe where it
				appears; and
											(ii)as to conduct
				occurring after the date of the enactment of the Military Commission Act of
				2006, the term serious and non-transitory mental harm (which need not be
				prolonged) shall replace the term prolonged mental harm
				where it appears.
											(3)Inapplicability
				of certain provisions with respect to collateral damage or incident of lawful
				attackThe intent specified for the conduct stated in
				subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of
				those subparagraphs to an offense under subsection (a) by reasons of subsection
				(c)(3) with respect to—
										(A)collateral
				damage; or
										(B)death, damage, or
				injury incident to a lawful attack.
										(4)Inapplicability
				of taking hostages to prisoner exchangeParagraph (1)(I) does not
				apply to an offense under subsection (a) by reason of subsection (c)(3) in the
				case of a prisoner exchange during
				wartime.
									.
						(2)Retroactive
			 applicabilityThe amendments made by this subsection, except as
			 specified in subsection (d)(2)(E) of section 2441 of title 18, United States
			 Code, shall take effect as of November 26, 1997, as if enacted immediately
			 after the amendments made by section 583 of Public Law 105–118 (as amended by
			 section 4002(e)(7) of Public Law 107–273).
					(c)Additional
			 prohibition on cruel, inhuman, or degrading treatment or punishment
					(1)In
			 generalNo individual in the custody or under the physical
			 control of the United States Government, regardless of nationality or physical
			 location, shall be subject to cruel, inhuman, or degrading treatment or
			 punishment.
					(2)Cruel, inhuman,
			 or degrading treatment or punishment definedIn this subsection,
			 the term cruel, inhuman, or degrading treatment or punishment
			 means cruel, unusual, and inhumane treatment or punishment prohibited by the
			 Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United
			 States, as defined in the United States Reservations, Declarations and
			 Understandings to the United Nations Convention Against Torture and Other Forms
			 of Cruel, Inhuman or Degrading Treatment or Punishment done at New York,
			 December 10, 1984.
					(3)ComplianceThe
			 President shall take appropriate action to ensure compliance with this
			 subsection, including through the establishment of administrative rules and
			 procedures.
					109.Detention
			 covered by review of decisions of Combatant Status Review Tribunals of
			 propriety of detentionSection
			 1005(e)(2)(B)(i) of the Detainee Treatment Act of 2005 (title X of Public Law
			 109–148; 119 Stat. 2742; 10 U.S.C. 801 note) is amended by striking the
			 Department of Defense at Guantanamo Bay, Cuba and inserting the
			 United States.
			110.SeverabilityIf any provision of this Act or amendment
			 made by a provision of this Act, or the application of such provision or
			 amendment to any person or circumstance, is held to be unconstitutional, the
			 remainder of this Act and the amendments made by this Act, and the application
			 of such provisions and amendments to any other person or circumstance, shall
			 not be affected thereby.
			IITERRORIST
			 SURVEILLANCE ACT
			201.Short
			 titleThis title may be cited
			 as the Terrorist 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)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.
				(4)It is equally
			 essential, however, that in protecting the United States 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).
				(5)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.
				(6)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).
				(7)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).
				(8)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.
					(9)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) and the congressional intelligence committees. 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 be directed
			 at Americans.
				(10)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.
				(11)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.
				(12)Granting the
			 Foreign Intelligence Surveillance Court the authority to review electronic
			 surveillance programs and pass upon their constitutionality is consistent with
			 well-established, longstanding practices.
				(13)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).
				(14)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.
				(15)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).
				(16)By authorizing
			 the Foreign Intelligence Surveillance Court to review electronic surveillance
			 programs, Congress enables 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 VIII;
				(2)by redesignating
			 section 701 as section 801; and
				(3)by inserting
			 after title VI the following:

						VIIElectronic
				surveillance programs
							701.DefinitionsAs used in this title—
								(1)the terms
				agent of a foreign power, Attorney General,
				contents, electronic surveillance, 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 surveillance program means a program to engage in
				electronic surveillance—
									(A)that has as a
				significant purpose the gathering of foreign intelligence information or
				protecting against international terrorism;
									(B)where it is not
				feasible to name every person, address, or location to be subjected to
				electronic surveillance;
									(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;
									(4)the term
				foreign intelligence information has the same meaning as in
				section 101(e) and includes information necessary to protect against
				international terrorism;
								(5)the term
				Foreign Intelligence Surveillance Court means the court
				established under section 103(a); and
								(6)the term
				Foreign Intelligence Surveillance Court of Review means the
				court established under section
				103(b).
								.
				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 3, 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. There shall be no limit on the number of
				times the Attorney General may seek reauthorization of an electronic
				surveillance program.
								(3)Resubmission or
				appealIn the event that the Foreign Intelligence Surveillance
				Court refuses to approve an application under this subsection, the court shall
				state its reasons in a written opinion, which it shall submit to the Attorney
				General. The Attorney General or his designee may submit a new application
				under section 703 for the electronic surveillance program, with no limit on the
				number of resubmissions that may be made. Alternatively, the Attorney General
				may appeal the decision of the Foreign Intelligence Surveillance Court to the
				Foreign Intelligence Surveillance Court of Review.
								(4)Continued
				surveillance under title I
									(A)In
				generalIf, at any time, the Attorney General determines that the
				known facts and circumstances relating to any target within the United States
				under this title satisfy the criteria for an application under section 104 for
				an order for electronic surveillance of the target under section 105, the
				Attorney General shall—
										(i)discontinue the
				surveillance of the target under this title; or
										(ii)continue the
				surveillance of the target under this title, subject to the requirements of
				subparagraph (B).
										(B)Continuation of
				surveillance
										(i)In
				generalThe Attorney General may continue surveillance of a
				target under this title as specified in subparagraph (A)(ii) only if the
				Attorney General makes an application under section 104 for an order for
				electronic surveillance of the target under section 105 as soon as the Attorney
				General determines practicable after the date on which the Attorney General
				makes the determination to continue surveillance of the target under
				subparagraph (A)(ii).
										(ii)PeriodThe
				period during which the Attorney General may continue surveillance of a target
				under this title after the Attorney General has determined that making an
				application is practicable shall be limited to a reasonable period, as
				determined by the Attorney General, during which the application is prepared
				and the period during which the application of the Attorney General under
				section 104 for an order for electronic surveillance of the target under
				section 105 is pending under title I, including during any period in which
				appeal from the denial of the application is pending with the Foreign
				Intelligence Surveillance Court of Review or the Supreme Court under section
				103(b).
										(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 Surveillance 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 of the Foreign Intelligence
				Surveillance for further proceedings under this subsection.
								(2)Procedures for
				reviewThe Foreign Intelligence Surveillance Court shall have
				jurisdiction as appropriate to determine standing and the legality of the
				program to the extent necessary for resolution of the underlying case. All
				proceedings under this paragraph shall be conducted in accordance with the
				procedures set forth in section 106(f). In the event the Foreign Intelligence
				Surveillance Court determines that, in the context of a criminal proceeding,
				the Constitution of the United States would require the disclosure of national
				security information, any such constitutionally required disclosure shall be
				governed by the Classified Information Procedures Act, (18 U.S.C. App.), or if
				applicable, section 2339B(f) of title 18, United States Code.
								(3)Appeal,
				certiorari, and effects of decisionsThe decision of the Foreign
				Intelligence Surveillance Court made under paragraphs (1) and (2), including a
				decision that the disclosure of national security information is
				constitutionally required, shall be subject to review by the Foreign
				Intelligence Surveillance Court of Review under section 103(b). The Supreme
				Court of the United States shall have jurisdiction to review decisions of the
				Foreign Intelligence Surveillance Court of Review by writ of certiorari granted
				upon the petition of the United States. The decision by the Foreign
				Intelligence Surveillance Court shall otherwise be binding in all other
				courts.
								(4)DismissalThe
				Foreign Intelligence Surveillance Court 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.
								(5)Preservation of
				litigation privilegesNothing in this Act shall be construed to
				abrogate, limit, or affect any litigation privileges in any
				court.
								.
				205.Applications
			 for approval of electronic surveillance programsTitle VII of the Foreign Intelligence
			 Surveillance Act of 1978, as amended by section 4, 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 resubmission or application
				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 obtain foreign
				intelligence information or to protect against international terrorism;
							(5)certify that the
				information sought cannot reasonably be obtained by normal investigative
				techniques
							(6)certify that the
				information sought cannot reasonably be obtained through an application under
				section 104;
							(7)include a
				statement of the means and operational procedures by which the electronic
				surveillance will be executed and effected;
							(8)include an
				explanation of how the electronic surveillance program is reasonably designed
				to ensure that the communications that are acquired are communications of or
				with—
								(A)a foreign power
				that engages in international terrorism or activities in preparation
				therefor;
								(B)an agent of a
				foreign power that engages in international terrorism or activities in
				preparation therefor;
								(C)a person
				reasonably believed to have communication with or be associated with a foreign
				power that engages in international terrorism or activities in preparation
				therefor or an agent of a foreign power that engages in international terrorism
				or activities in preparation therefor; or
								(D)a foreign power
				that poses an imminent threat of attack likely to cause death, serious injury,
				or substantial economic damage to the United States, or an agent of a foreign
				power thereof;
								(9)include a
				statement of the proposed minimization procedures;
							(9)include a
				statement of the proposed minimization procedures;
							(10)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;
							(11)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
							(12)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 surveillance 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 18 of 1978, as amended by section 5, 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 acquired are communications of or with—
								(A)a foreign power
				that engages in international terrorism or activities in preparation
				therefor;
								(B)an agent of a
				foreign power that is engaged in international terrorism or activities in
				preparation therefor;
								(C)a person
				reasonably believed to have communication with or be associated with a foreign
				power that is engaged in international terrorism or activities in preparation
				therefor or an agent of a foreign power that is engaged in international
				terrorism or activities in preparation therefor; or
								(D)a foreign power
				that poses an imminent threat of attack likely to cause death, serious injury,
				or substantial economic damage to the United States, or an agent of a foreign
				power thereof;
								(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 persons, 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 records
				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 6, 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 electronic surveillance program 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 programs
				pursuant to this title; and
							(5)the total number
				of orders applied for that have been 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)RepealSections
			 111, 309, and 404 of the Foreign Intelligence Surveillance Act of 1978 (50
			 U.S.C. 1811, 1829, and 1844) are repealed.
				(b)Clarifying
			 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 striking
			 authorized by statute and inserting authorized by
			 law; and
								(II)by striking
			 or at the end;
								(ii)in
			 paragraph (2)—
								(I)by striking
			 authorized by statute and inserting authorized by
			 law; and
								(II)by striking the
			 period and inserting ; or; and
								(iii)by adding at
			 the end the following:

									(3)and 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.Modernizing
			 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
			 (C), by striking or after the semicolon; and
						(B)by adding at the
			 end the following:

								(D)otherwise is
				reasonably expected to possess, control, transmit, or receive foreign
				intelligence information while that person is in the United States, provided
				that the official making the certification required by section 104(a)(6) deems
				such foreign intelligence information to be significant;
				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 acquiring
				information by intentionally directing the surveillance at a particular known
				person who is reasonably believed to be in the United States 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 reasonably believed to be located within the United
				States.
								;
					(3)in subsection
			 (h), by striking paragraph (4) and inserting the following:

							(4)notwithstanding
				paragraphs (1), (2), and (3), with respect to any electronic surveillance
				approved pursuant to section 102 or 704, procedures that require that no
				contents of any communication originated or sent by a United States person
				shall be disclosed, disseminated, used or retained for longer than 7 days
				unless a court order under section 105 is obtained or unless the Attorney
				General determines that the information indicates a threat of death or serious
				bodily harm to any
				person.
							.
					(4)by striking
			 subsection (l); and
					(5)by striking
			 subsection (n) and inserting the following:

							(n)contents,
				when used with respect to a communication, includes any information concerning
				the substance, symbols, sounds, words, purport, or meaning of a communication,
				and does not include dialing, routing, addressing, or signaling
				information.
							.
					(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 the electronic surveillance is directed
				at—
									(A)(i)the acquisition of the
				contents of communications of foreign powers, as defined in paragraph (1), (2),
				or (3) of section 101(a), or a person other than a United States person acting
				as an agent of a foreign power, as defined in section 101(b)(1)(A) or (B);
				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 Select Committee on Intelligence of
				the Senate and the Permanent Select Committee on Intelligence of the House of
				Representatives 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 Select Committee on Intelligence of the Senate and the Permanent Select
				Committee on Intelligence of the House of Representatives under section 108(a).
				If an electronic surveillance authorized by this subsection is directed at an
				agent of a foreign power, the Attorney General’s report assessing compliance
				with the minimization procedures shall also include a statement of the facts
				and circumstances relied upon to justify the belief that the target of the
				electronic surveillance is an agent of a foreign power.
								(3)The Attorney General shall
				immediately transmit under seal to the court established under section 103(a) a
				copy of any certification under this subsection. 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)(1)Notwithstanding any
				other provision of law, the President, through the Attorney General, may
				authorize the acquisition of foreign intelligence information for periods of up
				to 1 year concerning a person reasonably believed to be outside the United
				States if the Attorney General certifies in writing under oath that he has
				determined that—
									(A)the acquisition does not constitute
				electronic surveillance as defined in section 101(f);
									(B)the acquisition involves obtaining the
				foreign intelligence information from or with the assistance of a wire or
				electronic communications service provider, custodian, or other person
				(including any officer, employee, agent, or other specified person thereof) who
				has access to wire or 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;
									(C)a significant purpose of the
				acquisition is to obtain foreign intelligence information; and
									(D)the minimization procedures to be
				employed with respect to such acquisition activity meet the definition of
				minimization procedures under section 101(h).
									(2)Such certification need not identify
				the specific facilities, places, premises, or property at which the acquisition
				will be directed.
								(3)An acquisition undertaken pursuant to
				this subsection may be conducted only in accordance with the Attorney General's
				certification and the minimization procedures adopted by the Attorney General.
				The Attorney General shall assess compliance with such procedures and shall
				report such assessments to the Select Committee on Intelligence of the Senate
				and the Permanent Select Committee on Intelligence of the House of
				Representatives under section 108(a).
								(4)The Attorney General shall
				immediately transmit under seal to the court established under section 103(a) a
				copy of any certification of the Attorney General under this subsection. 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 the
				certification is necessary to determine the legality of the acquisition under
				subsection (o).
								(c)With respect to
				the acquisition authorized under this section, the Attorney General may direct
				a specified person to—
								(1)furnish the
				government forthwith all information, facilities, and assistance necessary to
				accomplish the acquisition in such a manner as will protect its secrecy and
				produce a minimum of interference with the services that such person is
				providing to the target; and
								(2)maintain under
				security procedures approved by the Attorney General and the Director of
				National Intelligence any records concerning the acquisition or the aid
				furnished that such person wishes to maintain.
								(d)The government
				shall compensate, at the prevailing rate, such specified person for furnishing
				the aid set forth in subsection (c).
							(e)In the case of a
				failure to comply with a directive issued pursuant to this section, the
				Attorney General may invoke the aid of the court established under section
				103(a) to compel compliance with the directive. The court shall issue an order
				requiring the person or entity to comply with the directive forthwith if it
				finds that the directive was issued in accordance with subsection (a) or (b)
				and is otherwise lawful. Any failure to obey the order of the court may be
				punished by the court as contempt thereof. Any process under this section may
				be served in any judicial district in which the person or entity may be
				found.
							(f)(1)(A)A person receiving an
				Attorney General directive issued pursuant to this section may challenge the
				legality of that directive by filing a petition with the pool established by
				section 103(e)(1).
									(B)The presiding judge shall immediately
				assign a petition to one of the judges serving in the pool established by
				section 103(e)(1). Not later than 24 hours after the assignment of such
				petition, the assigned judge shall conduct an initial review of the directive.
				If the assigned judge determines that the petition is frivolous, the assigned
				judge shall immediately deny the petition and affirm the directive or any part
				thereof that is the subject of the petition. If the assigned judge determines
				the petition is not frivolous, the assigned judge shall within 72 hours
				consider the petition in accordance with the procedures established under
				section 103(e)(2) and provide a written statement for the record of the reasons
				for any determination under this subsection.
									(2)A judge considering a petition to
				modify or set aside a directive may grant such petition only if the judge finds
				that such directive does not meet the requirements of this section or is
				otherwise unlawful. If the judge does not modify or set aside the directive,
				the judge shall immediately affirm such directive, and order the recipient to
				comply therewith.
								(3)Any directive not explicitly modified
				or set aside consistent with this subsection shall remain in full
				effect.
								(g)A petition for
				review of a decision under subsection (f) to affirm, modify, or set aside a
				directive by the Government or any person receiving such directive shall be
				made within 7 days of issuance of the decision required by subsection (f) to
				the court of review established under section 103(b), which shall have
				jurisdiction to consider such petitions. The court of review shall provide for
				the record a written statement of the reasons for its decision and, on petition
				by the Government or any person receiving such directive for a writ of
				certiorari, the record shall be transmitted under seal to the Supreme Court of
				the United States, which shall have jurisdiction to review such
				decision.
							(h)Judicial
				proceedings under this section shall be concluded as expeditiously as possible.
				The record of proceedings, including petitions filed, orders granted, and
				statements of reasons for decision, shall be maintained under security measures
				established by the Chief Justice of the United States, in consultation with the
				Attorney General and the Director of National Intelligence.
							(i)All petitions
				under this section shall be filed under seal. In any proceedings under this
				section, the court shall, upon request of the Government, review ex parte and
				in camera any Government submission, or portions thereof, which may include
				classified information.
							(j)No cause of
				action shall lie in any court against any provider of a communication service
				or other person (including any officer, employee, agent, or other specified
				person thereof) for furnishing any information, facilities, or assistance in
				accordance with a directive under subsection (a) or (b).
							(k)Information
				acquired pursuant to an Attorney General authorization under this section
				concerning any United States person may be used and disclosed by Federal
				officers and employees without the consent of the United States person only in
				accordance with the minimization procedures required by subsection (a) or (b),
				as applicable. No otherwise privileged communication obtained in accordance
				with, or in violation of, the provisions of this section shall lose its
				privileged character. No information from an acquisition under this section may
				be used or disclosed by Federal officers or employees except for lawful
				purposes.
							(l)No information
				acquired pursuant to this section shall be disclosed for law enforcement
				purposes unless such disclosure is accompanied by a statement that such
				information, or any information derived therefrom, may only be used in a
				criminal proceeding with the advance authorization of the Attorney
				General.
							(m)Whenever the
				Government intends to enter into evidence or otherwise use or disclose in any
				trial, hearing, or other proceeding in or before any court, department,
				officer, agency, regulatory body, or other authority of the United States,
				against an aggrieved person, any information obtained or derived from an
				acquisition under this section, the Government shall, prior to the trial,
				hearing, or other proceeding or at a reasonable time prior to an effort to so
				disclose or so use that information or submit it in evidence, notify the
				aggrieved person and the court or other authority in which the information is
				to be disclosed or used that the Government intends to so disclose or so use
				such information.
							(n)Whenever any
				State or political subdivision thereof intends to enter into evidence or
				otherwise use or disclose in any trial, hearing, or other proceeding in or
				before any court, department, officer, agency, regulatory body, or other
				authority of a State or a political subdivision thereof, against an aggrieved
				person any information obtained or derived from an acquisition under this
				section, the State or political subdivision thereof shall notify the aggrieved
				person, the court or other authority in which the information is to be
				disclosed or used, and the Attorney General that the State or political
				subdivision thereof intends to so disclose or so use such information.
							(o)Any person
				against whom evidence obtained or derived from an acquisition authorized
				pursuant to this section to which he is an aggrieved person is to be, or has
				been, introduced or otherwise used or disclosed in any trial, hearing, or other
				proceeding in or before any court, department, officer, agency, regulatory
				body, or other authority of the United States, a State, or a political
				subdivision thereof, may move to suppress the evidence obtained or derived from
				such acquisition on the grounds that—
								(1)the information
				was unlawfully acquired; or
								(2)the acquisition
				was not made in conformity with an order of authorization or approval.
								Such a
				motion shall be made before the trial, hearing, or other proceeding unless
				there was no opportunity to make such a motion or the person was not aware of
				the grounds of the motion.(p)Whenever a court
				or other authority is notified pursuant to subsection (m) or (n), whenever a
				motion is made pursuant to subsection (o), or whenever any motion or request is
				made by an aggrieved person pursuant to any other statute or rule of the United
				States or any State before any court or other authority of the United States or
				any State to discover or obtain an Attorney General directive or other
				materials relating to the acquisition authorized under this section or to
				discover, obtain, or suppress evidence or information obtained or derived from
				the acquisition authorized under this section, the United States district court
				or, where the motion is made before another authority, the United States
				district court in the same district as the authority, shall, notwithstanding
				any other law, if the Attorney General files an affidavit under oath that
				disclosure or an adversary hearing would harm the national security of the
				United States, review in camera and ex parte the directive, and such other
				materials relating to the acquisition as may be necessary to determine whether
				the acquisition authorized under this section was lawfully authorized and
				conducted. In making this determination, the court may disclose to the
				aggrieved person, under appropriate security procedures and protective orders,
				portions of the directive or other materials relating to the acquisition only
				where such disclosure is necessary to make an accurate determination of the
				legality of the acquisition.
							(q)If the United
				States district court pursuant to subsection (o) determines that the
				acquisition authorized under this section was not lawfully authorized or
				conducted, it shall, in accordance with the requirements of law, suppress the
				evidence which was unlawfully obtained or derived or otherwise grant the motion
				of the aggrieved person. If the court determines that such acquisition was
				lawfully authorized and conducted, it shall deny the motion of the aggrieved
				person except to the extent that due process requires discovery or
				disclosure.
							(r)Orders granting
				motions or requests under subsection (o), decisions under this section that an
				acquisition was not lawfully authorized or conducted, and orders of the United
				States district court requiring review or granting disclosure of directives or
				other materials relating to such acquisition shall be final orders and binding
				upon all courts of the United States and the several States except a United
				States court of appeals and the Supreme Court.
							(s)Federal officers
				who acquire foreign intelligence information under this section may consult
				with Federal law enforcement officers or law enforcement personnel of a State
				or political subdivision of a State (including the chief executive officer of
				that State or political subdivision who has the authority to appoint or direct
				the chief law enforcement officer of that State or political subdivision) to
				coordinate efforts to investigate or protect against—
								(1)actual or
				potential attack or other grave hostile acts of a foreign power or an agent of
				a foreign power;
								(2)sabotage,
				international terrorism, or the development or proliferation of weapons of mass
				destruction by a foreign power or an agent of a foreign power; or
								(3)clandestine
				intelligence activities by an intelligence service or network of a foreign
				power or by an agent of a foreign power.
								(t)Coordination
				authorized by subsection (s) shall not preclude the certification required by
				subsection (a) or (b), as applicable.
							(u)Retention of
				directives and ordersDirectives made and orders granted under
				this section shall be retained for a period of at least 10 years from the date
				when they were
				made.
							.
				(d)Designation of
			 judgesSection 103 of FISA (50 U.S.C. 1803) is amended—
					(1)in subsection
			 (a), by inserting, at least before seven of the United
			 States judicial circuits; and
					(2)at the end by
			 adding the following new subsection:

							(g)Applications for
				a court order under this title are authorized if the President has, by written
				authorization, empowered the Attorney General to approve applications to the
				court having jurisdiction under this section, and a judge to whom an
				application is made may, notwithstanding any other law, grant an order, in
				conformity with section 105, approving electronic surveillance of a foreign
				power or an agent of a foreign power for the purpose of obtaining foreign
				intelligence information.
							.

					(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;
									(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;
							(8)a summary
				description of the nature of the information sought and the type of
				communications or activities to be subject to the surveillance;
							(9)a summary
				statement of the facts concerning all previous applications that have been made
				to any judge under this title involving any of the persons, facilities, or
				places specified in the application, and the action taken on each previous
				application; and
							(10)a summary
				statement of the means by which the surveillance will be effected and a
				statement whether physical entry is required to effect the
				surveillance.
							;
					(2)by striking
			 subsection (b);
					(3)by redesignating
			 subsections (c) through (e) as subsections (b) through (d), respectively;
			 and
					(4)in subsection
			 (d)(1)(A), as redesignated by paragraph (3), by inserting after
			 Secretary of State inserting Director of the Central
			 Intelligence Agency.
					(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 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;
								(C)the period of
				time during which the electronic surveillance is approved;
								(D)the type of
				information sought to be acquired and the type of communications or activities
				to be subjected to the surveillance; and
								(E)the means by
				which the electronic surveillance will be effected and whether physical entry
				will be used to effect the
				surveillance.
								;
					(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
			 paragraph (2) of subsection (e) and inserting the following:

							(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 longer than the
				court determines to be reasonable or 1 year, whichever is
				less.
							;
					(5)by striking
			 subsection (f) and inserting the following:

							(f)(1)Notwithstanding any
				other provision of this title, when an executive branch officer appointed by
				the President with the advice and consent of the Senate who is 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.
									(D)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.
									;
				and
					(6)in subsection
			 (i)—
						(A)by striking
			 a wire or and inserting any;
						(B)by 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 under section 102 of this title.
						(g)Use of
			 informationSection 106 of FISA (50 U.S.C. 1806) is
			 amended—
					(1)in subsection
			 (i)—
						(A)by striking
			 radio; and
						(B)by inserting
			 contain foreign intelligence information or after the
			 Attorney General determines that the contents inserting contain
			 foreign intelligence information or; and
						(2)in subsection
			 (k), by striking 1804(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 court established under section
				103(b), 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 that 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 court established under section 103(b)
				under section 104 or 105(g)(5); and
								(B)permit and
				facilitate the prompt transmittal of rulings of that court to personnel
				submitting applications described in paragraph
				(1).
								.
				(i)Amendments to
			 fisa title i relating to weapons of mass destruction
					(1)Section 101 of
			 FISA, as amended by subsection (b) of this section, is further amended—
						(A)in subsection
			 (b)(1)—
							(i)by
			 striking or at the end of subparagraph (D);
							(ii)by
			 redesignating subparagraph (E) as subparagraph (F); and
							(iii)by inserting
			 after subparagraph (D) the following new subparagraph (E):

									(E)engages in the
				development or proliferation of weapons of mass destruction, or activities in
				preparation therefor;
				or;
									;
							(B)in subsection
			 (b)(2)(C), by striking sabotage or international terrorism and
			 inserting sabotage, international terrorism, or the development or
			 proliferation of weapons of mass destruction; and
						(C)by inserting
			 after subsection (k) the following new subsection (l):

								(l)Weapon of
				mass destruction means—
									(1)any destructive
				device (as that term is defined in section 921 of title 18, United States Code)
				that is intended or has the capability, to cause death or serious bodily injury
				to a significant number of people;
									(2)any weapon that
				is designed or intended to cause death or serious bodily injury through the
				release, dissemination, or impact of toxic or poisonous chemicals, or their
				precursors;
									(3)any weapon
				involving a biological agent, toxin, or vector (as those terms are defined in
				section 178 of title 18, United States Code); or
									(4)any weapon that
				is designed to release radiation or radioactivity at a level dangerous to human
				life.
									.
						(2)Sections
			 101(e)(1)(B), 106(k)(1)(B), and 305(k)(1)(B) of FISA are each amended by
			 striking sabotage or international terrorism and inserting
			 sabotage, international terrorism, or the development or proliferation
			 of weapons of mass destruction.
					(j)Conforming
			 amendments to titles I and III of fisa to accommodate international movements
			 of targets
					(1)Section 105(e) of
			 FISA is amended by adding at the end the following new paragraph:

							(4)An order issued under this section
				shall remain in force during the authorized period of surveillance
				notwithstanding the absence of the target from the United States, unless the
				Government files a motion to extinguish the order and the court grants the
				motion.
							.
					(2)Section 304(d) of
			 FISA is amended by adding at the end the following new paragraph:

							(4)An order issued under this section
				shall remain in force during the authorized period of physical search
				notwithstanding the absence of the target from the United States, unless the
				Government files a motion to extinguish the order and the court grants the
				motion.
							.
					210.Conforming
			 amendment to table of contentsThe table of contents for the Foreign
			 Intelligence Surveillance Act of 1978 is amended—
				(1)by striking the item relating to section
			 102 and inserting the following new item:

							Sec. 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.

						;

				(2)by striking the
			 items relating to sections 111, 309, and 404; and
				(3)by striking the items related to title VII
			 and section 701 and inserting the following:

							TITLE VII—Electronic surveillance programs
							Sec. 701. Definitions.
							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—Effective date
							Sec. 801. Effective
				date.

						.

		September 25, 2006
		Read the second time and placed on the
		  calendar