[Congressional Record: June 29, 2006 (Senate)] [Page S6796-S6801] STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS By Mr. SPECTER: S. 3614. A bill to provide comprehensive procedures for the adjudication of cases involving unprivileged combatants; to the Committee on Armed Services. Mr. SPECTER. Mr. President, I have sought recognition to discuss the case of Hamdan v. Rumsfeld which was decided by the Supreme Court of the United States today and to address the question as to where we go from here. There have already been many inquiries as to what is the import of this Supreme Court decision and what are the next steps in order to establish a framework to deal with the people who are detained at Guantanamo Bay. Since the opinions were released this morning, my staff and I have been reviewing them: 177 pages, 6 opinions. The essence of the decision of the Supreme Court of the United States on a 5-to-3 vote is that the President did not have the authority to establish the military commissions and that the authority rests with the Congress under the Constitution. The Court dealt with the issue of the resolution that authorizes the use of military force, a resolution which the administration has sought as authority for amending the Foreign Intelligence Surveillance Act, and when the Court dealt with the resolution authorizing the use of military force, the Court said that it did not give the President the authority to establish the military commissions. The Court did not deal with any issue of inherent authority. But the decision that the President lacked the authority to establish the military commissions makes it obvious that the conclusion of the Supreme Court is that there is no inherent authority, an inference and a proposition which may have some weight as we consider collateral matters, for example, on the electronic surveillance under NSA. The Constitution of the United States is explicit in article I, section 8, which states, and I am leaving out some of the irrelevant language: Congress has the authority ``to make rules concerning captures on land and water.'' So it is a congressional matter. In reaching its conclusion, the Supreme Court of the United States found that the military commissions violated the Code of Military Justice and also violated the terms of the Geneva Convention. The Court found that the military commissions violated the Code of Military Justice because they did not provide for very basic due process considerations. The Court said that the military commissions violated the Geneva Convention, which the Court found applicable, reversing the Court of Appeals for the District of Columbia where the Supreme Court said: The Geneva Convention, common article 3, plainly affords some minimal protection to individuals, associated with a signatory or even a nonsignatory, who are involved in a conflict. The Court dealt with the issue of jurisdiction by saying the Government contention that the Supreme Court had no jurisdiction was wrong. The Supreme Court referred to a provision of the Detainee Treatment Act of 2005, which provides: No court shall have jurisdiction to hear or consider an application for habeas corpus filed by an alien detained at Guantanamo Bay. . . . There was a reference to the statutory provision which gave exclusive jurisdiction, according to the statute, to the District of Columbia court. The statute provided specifically: . . . the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal which determines that an alien is properly detained as an enemy combatant. I argued as forcefully as I could when that amendment was considered, that it was really atrocious--without any hearings, without any extended floor debate, and I had 2 minutes to speak under the rules governing the amendment--that we would be taking away jurisdiction of the Federal courts except for the District of Columbia. On its face, that language would say that the Supreme Court of the United States had no jurisdiction. The Supreme Court made short shrift of that point, saying that it did have jurisdiction. When you deal with a constitutional issue, it is hard for this lawyer to understand how you can take away jurisdiction from the Supreme Court of the United States. How can you do that, when we know since Marbury v. Madison in 1803 that the Supreme Court of the United States is final arbiter of the Constitution? But this language, this clumsy language sought to vest exclusive jurisdiction in the Court of Appeals for the District of Columbia. The Supreme Court made short shrift of that. On a personal note, and relevant to this consideration as well, in Justice Scalia's dissent he cites my floor argument in a footnote saying, at page 12 of his opinion: An earlier part of the amendment provides that no court, justice or judge shall have jurisdiction to consider the application for writ of habeas corpus. . . .Under the language of exclusive jurisdiction in the D.C. Circuit, the U.S. Supreme Court would not have jurisdiction to hear the Hamdan case. . . . Id., at [Senate Congressional Record] S12796 (statement of Sen[ator] Specter). Interesting that Justice Scalia, who doesn't believe in congressional intent or congressional deliberation, would make that citation. But when I made the point that the statute, on its face, took away jurisdiction from the Supreme Court of the United States, I made it plain that I did not think it had any validity. A statute can not do that. What the statute was trying to do, in part, was to look to a favorable court. The DC Circuit was a favorable court--they engaged in a little court shopping--and there was an effort to take away the jurisdiction of the district court from habeas corpus proceedings. Under the logic of Hamdan, where you have a statutory provision that the DC Circuit has sole jurisdiction and the Supreme Court interprets that as not taking away jurisdiction of the Supreme Court, inferentially the same conclusion would follow for the district court. It doesn't say the district court does not have jurisdiction, just like it does not say the Supreme Court does not have jurisdiction. It just says exclusive jurisdiction is in the DC circuit. It is a little hard to see how that would work out if you filed a petition for a writ of habeas corpus in the DC Circuit. That [[Page S6797]] would be anomalous. Those petitions are filed in the district court. In any case, the Supreme Court claimed jurisdiction over the case and found that the procedures which the administration has prescribed do not comport with law. The Judiciary Committee held a hearing on Guantanamo and made a field trip there. A number of us, including myself, went to take a look at Guantanamo, to see it firsthand and to question people there. I had gone there with the expectation of having a field hearing there. I wanted to hear from the officials at Guantanamo. When I got to Guantanamo, after the flight in, I was told there would be no field hearing--which was a disappointment, and really contrary to what I had understood the arrangement to be. But we held a hearing and devoted a considerable amount of work to the issue. Knowing, or thinking that, the administration's military commissions would be struck down because they did so little and had no real relationship to due process, we prepared legislation. I had it put in final form last week when we considered the Department of Defense authorization bill, and one Senator did talk about legislation. I considered offering it at that time but decided that it was not a good time to do so. But we have it ready to go, ready for introduction. Senator Durbin and I introduced a bill to handle the Guantanamo detainees on February 13, 2002. The issue was not picked up again until the Judiciary Committee held hearings last June, and this bill, which I am introducing today, I believe, will satisfy the requirements of the Supreme Court of the United States. This bill provides for two divisions. One is for the people who are charged with specific offenses. We retain the description of a military commission. We provide that there would be three officers on the commission, one president--a presiding judge from the Judge Advocate General's Office. Also an attorney will be provided for the accused, there will be competent evidence, there will be cross-examination and a unanimous verdict. In the event of the use of classified information, we prescribe that the provisions of the Confidential Information Protection Act would govern, which is a statute which has been used in our courts for many years, which authorizes the presiding judge to sift through the information and make available to the defense whatever is appropriate and not classified. And if it is classified, then to make it available at the discretion of the judge to the attorney. The attorney for the accused would be cleared through regular channels to deal with classified information so that we would be protecting the classified information by having it viewed only by someone authorized to take a look at it, so that the defense lawyer would be able to use it in the defense of his client. That is not a perfect situation, but that is the way we have dealt with confidential information under the so-called Confidential Information Protection Act. In our legislation, we also deal with the enemy combatants. These are the individuals who have been detained at Guantanamo under an arrangement where there is no limit as to the length of their detention. That has caused considerable angst, considerable objection. But it is a very difficult matter. When we are in a war, fighting terrorists--and we should never lose our focus that we are in that war and that there are continuing dangers and we have to protect Americans--until somebody has a better idea, they are going to be detained. Some have been released and some of those released have been found on the battlefields killing Americans, so the detention of enemy combatants is an ongoing issue. Our legislation provides that there would be a classification tribunal so that there would be a review of their status, to make a determination on a periodic basis that they continue to be a threat to the United States, either on the continent or because they will go back and fight a war. We provide for an attorney, again, an attorney who would be cleared to view classified information. The issue of evidence is much more difficult because these enemy combatants are frequently taken into custody in a battlefield situation where competent evidence is not present, so we allow for hearsay. In the Supreme Court opinion, if there is a showing of necessity, there is leeway granted in terms of defining sufficient due process. The Supreme Court found, for example, that the President had demonstrated sufficiently that there could not be trials in the U.S. Federal district courts, so ruling that out was fine. It was acceptable. And leeway, too, for some deviation from all of the generalized rules might be acceptable. The Supreme Court really didn't reach the issue of granting leeway because they didn't have a specific situation, but there would have to be a showing of necessity, a showing that no other system would work. So in dealing with the enemy combatants, we are still struggling with how to handle the issue of indefinite detention, recognizing that they continue to be a threat. The legislation which I am introducing today has received considerable thought and considerable analysis. As I say, it picks up on legislation which Senator Durbin and I introduced on February 13, 2002. But it still requires a great deal more analysis and a great deal more thought, which we will give it in due course on the legislative process. We have altered our schedule in the Judiciary Committee to reserve July 11 for a hearing, the second day we are back--on that Tuesday we really swing into action--we will take up an analysis of Hamdan v. Rumsfeld in greater detail than we could do this afternoon in a short floor statement and with only a few hours to digest the 6 opinions and 177 pages. We will consider this legislation at that time. I ask unanimous consent that the full text of the bill be printed in the Congressional Record at the conclusion of my comments, and a short summary of the bill, which will enable the reader to follow without going through the extended text. There being no objection, the text of the bill was ordered to be printed in the Record, as follows: S. 3614 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; AUTHORITY; FINDINGS. (a) Short Title.--This Act may be cited as the ``Unprivileged Combatant Act of 2006''. (b) Authority.--The requirements, conditions, and restrictions established by this Act are made under the authority of Congress under clauses 1, 10, 11, 12, 13, 14, and 18 of article I, section 8 of the Constitution of the United States. (c) Findings.--Congress finds the following: (1) Article I, section 8, of the Constitution provides that the Congress has the power to ``constitute Tribunals inferior to the Supreme Court; ... define and punish ... Offenses against the Law of Nations; ... make Rules concerning Captures on Land and Water; ... make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof''. (2) The Supreme Court has repeatedly recognized military tribunals, as stated in Madsen v. Kinsella 343 U.S. 341, 1952, ``[s]ince our nation's earliest days, such tribunals have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war....They have taken many forms and borne many names. Neither their procedure nor their jurisdiction has been prescribed by statute. It has been adapted in each instance to the need that called it forth.'' Madsen, citing In re Yamashita, 327 U.S. 1 (1946). (3) The President has inherent authority to convene military tribunals arising from his role as Commander and Chief of the Armed Forces under article II of the Constitution and from title 10 of the United States Code. Due to the extraordinary circumstances of the ongoing war on terrorism, it is appropriate for Congress to provide additional and explicit authorization of and procedures for military tribunals to adjudicate and punish offenses relating to the war on terrorism. (4) This Act is in direct response to the United State Supreme Court's ruling in Rasul v. Bush. With the passage of this Act, the 109th Congress will have addressed the concerns of the Supreme Court's Rasul majority, and therefore alien enemy combatants detained or prosecuted under this Act may not challenge their detentions in the Federal courts of the United States via the habeas or any other statute. SEC. 2. DEFINITIONS. As used in this Act, the following definitions apply: (1) Classification tribunal.--The term ``classification tribunal'' means any tribunal conducted under section 9 or any related proceeding. (2) Classification tribunal board.--The term ``classification tribunal board'' means a board established pursuant to section 9(d). [[Page S6798]] (3) Classified information.--The term ``classified information'' has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.). (4) Commission.--The term ``commission'' means a military commission established pursuant to section 3. (5) Criminal prosecution.--The term ``criminal prosecution'' means a prosecution for a violation of any criminal law, including subchapter X of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) or pursuant to the Department of Defenses Military Commission Instruction number two. (6) Detainee.--The term ``detainee'' means a person who is in the custody of the Department of Defense at Guantanamo Bay, Cuba, and who has not been charged with a criminal offense during that period. (7) International terrorism.--The term ``international terrorism'' has the meaning given that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801). (8) Judge.--The term ``judge'' means a United States military judge designated by the Secretary of Defense to hear cases under this Act. (9) Protected information.--The term ``protected information'' means information-- (A) that is classified information; (B) protected by law or rule from unauthorized disclosure; (C) the disclosure of which may endanger the physical safety of participants in Commission proceedings, including prospective witnesses; (D) concerning intelligence and law enforcement sources, methods, or activities; or (E) the disclosure of which would otherwise jeopardize national security interests. (10) United states person.--The term ``United States person'' has the meaning given that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801). (11) Unprivileged combatant.--The term ``unprivileged combatant'' means an individual-- (A) who has been designated as an enemy combatant by a Combatant Status Review Tribunal prior to the enactment of this Act; or (B) who a Field Tribunal conducted by the United States military as provided in this Act determines-- (i) is not entitled to the protections set out in the Convention Relative to the Treatment of Prisoners of War, done at Geneva, August 12, 1948 (6 UST 3516) (referred to in this Act as the ``Geneva Convention''); and (ii) has-- (I) knowingly assisted, conspired with, or solicited for a group or an individual hostile to the United States; (II) knowingly attempted to assist others in taking up arms against the United States; (III) conspired with or solicited others to take up arms against the United States; or (IV) has taken up arms against, or intentionally assisted combat operations against, the United States. (12) Appropriate committees of congress.--The term ``appropriate committees of Congress'' means the Committee on the Judiciary and the Committee on Armed Services of the Senate and the Committee on the Judiciary and the Committee on Armed Services of the House of Representatives. SEC. 3. AUTHORIZING MILITARY COMMISSIONS. The President is authorized to establish military commissions for the trial of individuals for offenses as provided in this Act. SEC. 4. JURISDICTION. (a) Unprivileged Combatants.--This Act establishes exclusive jurisdiction to hear any matter involving an unprivileged combatant who has been detained by the Department of Defense for not less than 180 consecutive days at Guantanamo Bay, Cuba. (b) Offenses.-- (1) Criminal prosecutions.--A commission shall have jurisdiction to hear any criminal prosecution involving international terrorism, including any offense under chapter 113B of title 18, United States Code. (2) Offenses against the laws of war.--A commission shall have exclusive jurisdiction over violations of the laws of war committed by unprivileged combatants. (3) Other offenses.--A commission shall have jurisdiction over other offenses traditionally triable by military commissions or pursuant to the Department of Defense's Military Commission Instruction Number Two. SEC. 5. APPELLATE JURISDICTION. (a) Final Decisions.--The United States Court of Military Appeals shall have exclusive jurisdiction of appeals from all final decisions of a classification tribunal board or commission under this Act. (b) Review by Supreme Court.-- (1) Certiorari.--The decisions of the United States Court of Military Appeals are subject to review by the Supreme Court by writ of certiorari. (2) Exemption from certain petition requirements.--A person who files a petition for a writ of certiorari under paragraph (1) shall not be required to submit-- (A) prepayment of any fees and costs or security therefor; or (B) the affidavit required by section 1915(a) of title 28, United States Code. (c) Conforming Amendments.-- (1) In general.--Section 1005 of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note) is amended-- (A) in subsection (e), by striking paragraphs (2) through (4); and (B) by striking subsection (h) and inserting the following: ``(h) Effective Date.--This section shall take effect on the date of enactment of this Act.''. (2) Habeas.--Section 2241(e) of title 28, United States Code, is amended-- (A) in the matter preceding paragraph (1), by striking ``section 1005 of the Detainee Treatment Act of 2005'' and inserting ``the Unprivileged Combatant Act of 2006''; (B) by striking paragraph (2)(B) and inserting the following: ``(B) has been determined by a classification tribunal to meet the requirements of paragraph (1) or (2) of section 9(a) of the Unprivileged Combatant Act of 2006.''. SEC. 6. COMMISSION. (a) Commission Personnel.-- (1) Members.-- (A) Appointment.--The Secretary of Defense shall designate no less than 12 United States military judges to serve as members of a commission and to assume other duties assigned in this Act. (B) Number of members.--Each commission shall consist of at least 3 military officers, at least one of whom shall be a military judge. (C) Alternate members.--For each such commission, there shall also be 1 or 2 alternate members. The alternate member or members shall attend all sessions of the commission. In case of incapacity, resignation, or removal of any member, an alternate member shall take the place of that member. (D) Qualifications.--Each member and alternate member of the commission shall be a military officer. (E) Presiding officer.-- (i) In general.--From among the members of the commission, the Secretary of Defense shall designate a presiding officer who is a military judge to preside over the proceedings of that commission. (ii) Duties.--The duties of the presiding officer shall be as follows: (I) The presiding officer shall admit or exclude evidence at trial in accordance with the rules of this Act. The presiding officer shall have authority to close proceedings or portions of proceedings in accordance with this Act or for any other reason necessary for the conduct of a full and fair trial. (II) The presiding officer shall ensure that the discipline, dignity, and decorum of the proceedings are maintained, shall exercise control over the proceedings to ensure proper implementation of the President's Military Order and this Act, and shall have authority to act upon any contempt or breach of commission rules and procedures. Any attorney authorized to appear before a commission who is thereafter found not to satisfy the requirements for eligibility or who fails to comply with laws, rules, regulations, or other orders applicable to the commission proceedings or any other individual who violates such laws, rules, regulations, or orders may be disciplined as the presiding officer deems appropriate, including revocation of eligibility to appear before that commission. The Court may further revoke that attorney's or any other person's eligibility to appear before any other commission convened under this Act. (III) The presiding officer shall ensure the expeditious conduct of the trial. In no circumstance shall accommodation of counsel be allowed to delay proceedings unreasonably. (IV) The presiding officer may certify interlocutory questions to the Military Commission Review Panel for the Armed Forces as the presiding officer deems appropriate. (b) Powers of a Commission.--A commission shall have the following powers: (1) To summon witnesses to the trial and to require their attendance and testimony and to put questions to them. (2) To require the production of documents and other evidentiary material. (3) To administer oaths to witnesses. (4) To appoint officers for the carrying out of any task designated by the commission, including the power to have evidence taken. SEC. 7. PERSONS IN CUSTODY. (a) In General.--Not later than 60 days after the date of enactment of this Act, the Secretary of Defense shall develop-- (1) a complete listing of all persons who-- (A) are being detained by the Department of Defense at Guantanamo Bay, Cuba; and (B) the Government wishes to continue to detain as an unprivileged combatant; and (2) a detailed summary of the evidence upon which the determination to keep a person described in paragraph (1) in custody was made. (b) Congressional Oversight.--Not later than 10 days after developing the list described in subsection (a), the Secretary of Defense shall submit an unclassified version of that list to the appropriate committees of Congress. A classified, unredacted version of that list shall also be submitted to the appropriate committees of Congress for review. (c) Updated List.-- (1) In general.--Not less than once every 60 days after the date the list described in subsection (a) is completed, the Secretary of Defense shall update the list of the persons described in subsection (a) and submit to the appropriate committees of Congress a detailed report for each person on such list that includes-- [[Page S6799]] (A) the name and nationality of each such person; and (B) with respect to each such person-- (i) a detailed statement of why such person has not been charged, repatriated, or released; (ii) a statement of when the United States intends to charge, repatriate, or release such person; (iii) a description of the procedures to be employed by the United States to determine whether to charge, repatriate, or release such person and a schedule for the employment of such procedures; and (iv) if the Secretary of Defense has transferred or has plans to transfer such person from the custody of the Secretary to another agency or department of the United States, a description of such transfer. (2) Form of reports.--Each report required by this subsection shall be submitted in an unclassified form, to the maximum extent practicable, and may include a classified annex, if necessary. (3) Appropriate committees of congress defined.--In this subsection, the term ``appropriate committees of Congress'' means-- (A) the Committee on Armed Services, the Committee on the Judiciary, and the Select Committee on Intelligence of the Senate; and (B) the Committee on Armed Services, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence of the House of Representatives. (d) Congressional Oversight.--Not later than 10 days after updating the list of persons under subsection (c), the Secretary of Defense shall submit that updated list to the appropriate committees of Congress in both unclassified and unredacted, classified form. SEC. 8. FIELD TRIBUNALS. (a) In General.--Not more than 30 days after a suspected unprivileged combatant has been detained by United States forces, the Department of Defense shall conduct a field tribunal in order to determine whether the detainee is an unprivileged combatant and whether the detainee is entitled to the rights afforded under the Geneva Convention. (b) Procedures.--The procedures governing a field tribunal shall be promulgated by the Department of Defense SEC. 9. CLASSIFICATION TRIBUNALS. (a) In General.--A detainee shall be released and repatriated to an appropriate country unless a classification tribunal board finds by a preponderance of the evidence that-- (1) the detainee is a threat to the national security interest of the United States; or (2) there are reasonable grounds to believe that if released the detainee would take up arms against the United States. (b) Compliance With Geneva Conventions.--If a detainee is found to be a privileged combatant entitled to provisions under the Convention Relative to the Treatment of Prisoners of War, done at Geneva, August 12, 1948 (6 UST 3516), then the detainee must be treated in accordance with that convention. (c) Citizen of the United States.--If a detainee is found to be a citizen of the United States of America, the detainee shall not be held or tried under this Act. (d) Classification Tribunal Board.--A classification tribunal shall be conducted by a board appointed by the Secretary of Defense and consist solely of line officers, one of whom shall be an attorney. (e) Determination.-- (1) In general.--If a classification tribunal board finds that a detainee meets the requirements of subsection (a), the classification tribunal board shall order that the detainee shall continue to be detained by the Department of Defense, subject to periodic review under subsection (h). (2) Time period.--The time period for the detention of a detainee under paragraph (1) may not exceed the time period that United States forces are engaged in combat operations as defined by the Department of Defense in the nation or theater where the detainee was captured so long as the detainee is found to be a privileged combatant. (3) Conclusion of combat.--At the conclusion of combat operations within a given theater or nation-- (A) a privileged combatant that was captured in that area shall be either indicted under this Act or repatriated to the appropriate country; and (B) an unprivileged combatant may continue to be detained pursuant to subsection (a). (f) Considerations.-- (1) In general.--In making a determination under subsection (a), a classification tribunal board shall consider any information brought to its attention regarding the need for continued detention, including-- (A) the detainee's alleged position or rank in any hostile organization; (B) the activities of that hostile organization; (C) any statements made by the detainee in response to interrogation; and (D) the detainee's history of violence or terrorist activity. (2) Prima facie evidence.--If the Government represents that a detainee was captured during a military engagement while taking up arms against, or supporting military operations against, the Armed Forces of the United States or its allies, there shall be prima facie evidence that, if released, the detainee would take up arms against the United States. (g) Timing.--A detainee shall be afforded a classification tribunal as soon as is reasonably practicable but not later than 180 days after the detainee's capture and not later than 30 days after the detainee is listed under section 7, unless continued. (h) Periodic Review.-- (1) In general.-- (A) Semiannual review.--The classification tribunal shall conduct a classification hearing for each detainee not less frequently than every 180 days, in accordance with the procedures established under this section and section 10. (B) Action period.--A detainee apprehended during a military engagement while taking up arms against, or supporting military operations against, the Armed Forces of the United States or its allies may be detained until the cessation of armed hostilities in the nation or region in which they were captured. (2) Argument.--The Government and the detainee may be heard regarding the review under paragraph (1). SEC. 10. CLASSIFICATION TRIBUNAL PROCEDURES. (a) Detainees.-- (1) In general.--A detainee shall not be required to testify or present any evidence at a classification tribunal. (2) Presence.--A detainee shall be entitled to be present at the classification tribunal, unless the head of the tribunal has decided to admit classified information. (b) Counsel.-- (1) In general.--A detainee is entitled to the assistance of counsel admitted to practice under this Act at every stage of the classification tribunal, including the periodic review of orders under subsection (e). (2) Right to appointed counsel.--A detainee who is unable to obtain counsel is entitled to have counsel admitted to practice before a commission under this Act. (3) Refusal of counsel.--A detainee may waive counsel but shall not be entitled to protected information. (c) Discovery.-- (1) Government's disclosure.--Not later than 3 days prior to the classification tribunal, the Government shall make available for inspection by counsel for the detainee any affidavit or affirmation the Government intends to offer in support of continuing to detain the detainee. A classification tribunal board shall maintain a copy of any submissions made by the Government for inspection by the detainee and for transmittal, if necessary, to that tribunal. (2) Detainee's disclosure.--If the detainee chooses to submit any evidence, such evidence, including a list of any witnesses the detainee intends to call, shall be made available to the Government for inspection not later than 3 days prior to the classification tribunal. (d) Evidence.-- (1) In general.--The Federal Rules of Evidence shall not apply to a classification tribunal. (2) Admissibility standard.--Evidence shall be admitted if the classification tribunal board determines the evidence would have probative value to a reasonable person. (3) Affidavit or affirmation.--The Government may proceed by proffer and submit any relevant information by affidavit or affirmation, unless decided unreliable by the members of the classification tribunal board. (4) Cross-examination.-- (A) Government witnesses.--If a Government chooses to call witnesses, the detainee may cross-examine those witnesses on all relevant facts. (B) Detainee witnesses.--If a detainee calls any witnesses, they shall be subject to cross examination. (C) Detainee.--If the detainee chooses to testify, the detainee shall be subject to cross-examination. (e) Defenses.--A detainee may challenge whether the detainee satisfies the elements required under subsection (a). (f) Proceedings.-- (1) In general.--A classification tribunal shall be closed to the public. (2) Security clearances.--Each person present at a classification tribunal, other than the detainee, shall possess a security clearance appropriate to the level of any classified information being presented. (3) Public information regarding proceedings.--After the classification tribunal board rules in the classification tribunal, the parties shall propose a nonclassified summary to that board. The board shall publicly release a summary, containing any information generated at the tribunal which can be disclosed in a manner consistent with the Classified Information Procedures Act (18 U.S.C. App.) and the national security of the United States. (g) Reinstituting Classification Proceedings.-- (1) In general.--If a matter involving the classification tribunal of a detainee is dismissed without prejudice by the classification tribunal or withdrawn by the Government at, or prior to, the classification tribunal, the Government may reinstitute the matter with the tribunal board that dismissed or permitted the withdrawal of the matter. (2) Time limit.--A complaint reinstituting proceedings under paragraph (1) shall be filed not later than 10 days after the dismissal or withdrawal of the matter. (3) Number.--The Government may reinstitute proceedings under paragraph (1) not more than twice and only if approved by the ranking member on the classification tribunal board. [[Page S6800]] SEC. 11. CONTINUANCE OF CLASSIFICATION TRIBUNALS. (a) Continuances.-- (1) In general.--A classification tribunal board may, for cause shown, grant a continuance of a classification tribunal. (2) Continuance.-- (A) In general.--Upon motion of the Government, the classification tribunal board may grant a continuance for as long as necessary, but no longer than a 6-month period, under paragraph (1) if the classification tribunal board determines that the detainee is a high level individual in the planning or financing of terrorist activities or the individual possess information vital to the safety of the United States or its citizens. (B) Subsequent continuances.--The Government may obtain subsequent continuances for additional 6-month periods so long as the classification tribunal board finds such continuances are necessary to the informational gathering purposes as it related to the national security of the United States. (3) Ex parte applications.-- (A) In general.--The Government may move for a continuance under paragraph (1) ex parte. (B) Detainee rights.--A detainee-- (i) is not entitled to representation by counsel in connection with any such ex parte motion; and (ii) shall not be given notice of the request for a hearing prior to the ruling of the classification tribunal board on the Government's request for a continuance pursuant to paragraph (2). (b) Grant of Continuance.--For each continuance granted under subsection (a), the classification tribunal board shall note on the record of the proceedings-- (1) the grounds for granting each such continuance; (2) the identity of the party requesting the continuance; (3) the new date and time for the tribunal hearing; and (4) the reasons that the date under paragraph (3) was chosen. SEC. 12. CRIMINAL PROSECUTION PROCEDURES GENERALLY. (a) Counsel.-- (1) In general.--A defendant in a criminal proceeding under this Act has a right to be represented by counsel admitted to practice before a commission under this Act. (2) Appointed counsel.-- (A) In general.--A defendant who is unable to obtain counsel is entitled to have counsel appointed and to be represented by such counsel at every stage of the proceeding subsequent to being indicted. (B) Appointment procedure.--The Secretary of Defense shall determine the rules for appointing counsel to practice before the commission. (b) Discovery.-- (1) Classified documents and objects.--The Government shall provide the defense with access to evidence the Government intends to introduce at trial and with access to evidence known to the Government or which should be known to the Government that tends to exculpate the accused. Information disclosed to the defense may not be disclosed to the defendant if it is classified as defined by this Act. The defense may submit classified information for review under section 12(b)(2). (2) Separate commission concerning classified information.--The Secretary of Defense shall appoint a commission to conduct a thorough review of the classification system for national security information, including the policy, procedures, and practices of the system. The Secretary of Defense shall determine what level of security clearance is necessary to conduct the review under this paragraph. No person shall be appointed as a member of the commission who does not have a security clearance at or above the level of clearance so designated by the Secretary. The commission shall make recommendations to the Secretary of Defense as to the declassification of information relevant to the trial of detainees. (3) Regulating discovery.-- (A) In general.--A commission may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. (B) Ex parte request.--A party may make an ex parte request in writing that a commission deny, restrict, or defer discovery or inspection under subparagraph (A). If the a commission grants a request under this subparagraph, the Commission shall preserve the entire text of the party's request under seal. (C) Failure to comply.--If a party fails to comply with the rules of discovery applicable to a commission, the commission may-- (i) order that party to permit the discovery or inspection, specify its time, place, and manner, and prescribe other just terms and conditions; or (ii) grant a continuance. (c) Open Proceedings.-- (1) In general.--Except as provided in paragraphs (2) and (3), a proceeding before a commission shall be open to the public. (2) Classified information.-- (A) In general.--Upon motion by the Government, a proceeding before a commission shall be closed to the public if necessary to avoid disclosure of classified information. (B) Nondisclosure.--A priority under subparagraph (A) shall not disclose any information presented during a closed session to individuals excluded from such proceeding or part thereof including the defendant. (3) Other bases.--A commission may order that a hearing be held, in whole or in part, in camera, if the commission determines-- (A) it is appropriate for the security of a witness or a Government employee or to protect public safety; or (B) that an open hearing would deter a witness from testifying freely or prevent the witness from testifying at all. (4) Extrajudicial statements.--At the discretion of a commission, the commission may issue an order limiting extrajudicial statements by the parties. (d) Protected Information.-- (1) In general.--A commission may issue protective orders as necessary to safeguard protected information in a proceeding before that commission. (2) Notification.--As soon as practicable, a party shall notify a commission of any intent to offer evidence including protected information . (3) Trial record.-- (A) In general.--All exhibits admitted as evidence but containing protected information shall be sealed and annexed to the record of trial. (B) Protected information not admitted.--Any protected information not admitted as evidence, but reviewed by a commission in camera and withheld from the defendant's counsel over objection shall be sealed and annexed to the record of the trial, with any associated motions and responses and any materials submitted in support thereof, as additional exhibits. (e) Record of Trial.-- (1) Requirement for record.--A record of each proceeding by a commission shall be prepared promptly after the conclusion of the trial. (2) Verbatim transcript.--The record of trial shall include a verbatim written transcript of all sessions of the trial. (3) Exhibits and other evidence.--The record of trial shall also include all exhibits and other real or demonstrative evidence, except that photographs may be substituted for any large written or graphic exhibits and any other real or demonstrative evidence. If a photograph is substituted for an exhibit or other evidence, the Government shall retain the original exhibit or other evidence, respectively, until no further appeal of the results of the trial is authorized. (4) Classified information.--In the case of a conviction of a charge on which classified information is admitted as evidence by a commission, the copy of the record of trial submitted to the commission shall include the classified information. SEC. 13. TRIAL PROCEDURES FOR UNPRIVILEGED COMBATANTS. (a) Specialized Procedures.-- (1) Standard of proof.--All 3 members of a commission shall agree that the defendant is guilty beyond a reasonable doubt for a defendant to be found guilty. (2) Rules of procedure.-- (A) In general.--Except as provided in subparagraph (B), the Secretary of Defense shall draft supplementary rules to govern all proceedings under this section. (B) Standard.--Evidence is admissible if the Secretary of Defense determines that the evidence would have probative value to a reasonable person. (3) Form of trial.--Any trial under this subsection shall take place before 2 military officers or attorneys and at least one military judge. (4) Bad acts.--Other bad acts may be considered if they would have fallen within the definition under this Act of either terrorism or terrorist activity and they are deemed to be relevant by a commission including propensity. (b) Custody.--The Department of Defense shall retain custody of any person determined by a commission to be unprivileged combatants after the person has been either convicted or sentenced in accordance with this Act, unless the Department of Defense deems otherwise. Decisions made by a commission in regards to a detainee's guilt or innocence may be considered by a tribunal when assessing the need to continue the detention of a detainee. SEC. 14. COMMUNICATION WITH PERSONS IN CUSTODY. An individual detained, indicted, or convicted under this Act shall only be permitted to communicate with the interpreter assigned to the individual, the counsel representing the individual, prison personnel, and any other individual approved by the Secretary of Defense. SEC. 15. COMMISSION COUNSEL. (a) In General.--A person shall be admitted to practice before a commission if the person-- (1) is a United States citizen; (2) has been admitted to the practice of law in a State, district, territory, or possession of the United States, or before a Federal court; (3) has not been sanctioned or otherwise the subject of disciplinary action by any court, bar, or other competent governmental authority for misconduct; (4) is eligible for access to information classified at the level of secret as defined by the Department of Defense; and (5) signs a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the course of proceedings. (b) Consultation With Colleagues.--Any person admitted under subsection (a) shall not confer with any colleague who does not have the appropriate clearance. [[Page S6801]] (c) Security Clearance.-- (1) Expedited consideration.--The Secretary of Defense shall ensure that a person seeking to be admitted under subsection (a) is timely processed for the security clearance required for access to materials necessary for providing a defendant with effective assistance of counsel. (2) Counsel ineligible for clearance.--If the Secretary of Defense determines a person is not eligible for the necessary security clearance, the person shall not be permitted to represent an individual in any proceeding before the Commission. The determination of the Secretary of Defense shall be final and is not subject to appeal to, or other review by, any court of the United States. (d) Travel Expenses.--The Secretary of Defense shall reimburse any person not employed by the Government who is representing an individual before the Commission for travel away from the home or regular place of business of the person in connection with such representation. The rates for the payment of travel expenses under this subsection shall be those authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code. ____ There being no objection, the material was ordered to be printed in the Record, as follows: The Unprivileged Combatants Act of 2006 is a follow-up to the Military Commissions Procedures Act of 2002 (S. 1937, 107th Congress) which you cosponsored with Senator Durbin in February 2002. The goal of this bill is to balance the need for national security (interrogations and detention of combatants) with the need to afford detainees with sufficient due process so that nations such as Great Britain and Australia will not place undue pressure on the United States to release their citizens from Guantanamo Bay. This bill addresses only those combatants currently held at Guantanamo Bay. The Act clarifies the procedures used in Combatant Status Review Tribunals and establishes procedures for the trial of detainees. These procedures constitute ``a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.'' (Hamdi v. Rumsfeld, 542 U.S. 507, O'Connor, J.) This bill does not address the issue of unprivileged combatants contesting their detentions through habeas appeals. Although the Graham-Kyl- Levin amendment to the 2005 DoD appropriations bill has addressed this issue, a forthcoming Supreme Court decision (Hamdan v. Rumsfeld, 04-5393) will probably require additional legislation on this matter. Section 301: Findings: This title is in direct response to the United States Supreme Court's ruling in Rasul v. Bush. Section 302: Definition Section: Definition section of the bill which defines primary terms such as field tribunal, classification tribunal, military commission, and unprivileged combatant. Section 303: Authorizing Military Commissions: The President is authorized to establish military commissions for the trial of individuals for offenses as provided in this title. Section 304: Jurisdiction Over Unprivileged Combatants: This title establishes exclusive jurisdiction to hear any matter involving an unprivileged combatant who has been detained by the Department of Defense at Guantanamo Bay, Cuba. These detainees may be tried via laws of war or pursuant to the Department of Defense's Military Commission Instruction Number Two. Section 305: Appellate Jurisdiction: The U.S. Courts of Military Appeals shall have exclusive jurisdiction over appeals from all final decisions of a classification tribunal board or military commission under this tide. These decisions are then subject to review by the Supreme Court by writ of certiorari. Section 306: Military Commission: The Commissions shall consist of three military officers, at least one of whom is a Judge Advocate General. These Commissions shall decide the guilt or innocence of detainees charged under section 304 of this Act. This is basically what happens now. Section 307: Persons in Custody: Not more than 60 days after the enactment of this Act, the Secretary of Defense is required to develop a list of all persons who are being detained at Guantanamo Bay, Cuba, and whom the government wishes to continue to detain as an unprivileged combatant. The Act requires that the original list and subsequent lists, updated at least once every 60 days, be submitted to the appropriate House and Senate committees. Section 308: Field Tribunals: Not more than 30 days after a suspected unprivileged combatant has been detained by United States forces, the Department of Defense shall conduct a field tribunal (``FT'') in order to determine whether the detainee is an unprivileged combatant and whether the detainee is entitled to the rights afforded under the Geneva Convention. The procedures governing a field tribunal shall be promulgated by the Department of Defense. Section 309: Classification Tribunals: A Classification Tribunal (``CT'') is very similar to the current Combatant Status Review Tribunal. The CT shall be composed of three military officers, one of whom shall be an attorney. Pursuant to a hearing before a CT, a designee shall be released and repatriated to an appropriate country unless a CT finds by a preponderance of the evidence that--(l) the detainee is a threat to the national security interest of the United States; or (2) there are reasonable grounds to believe that if released the person would take up arms against the United States. Decisions of the CT shall be repeated every six months. Detainees may be released only when the CT or the Administrative Board determines the detainee is no longer a threat to national security. This section also expressly states that a detainee who is also a United States citizen may not be held or tried under this act. Section 310: Classification Tribunal Procedures: Procedures for CT's are the same as those of Combatant Status Review Tribunals except detainees shall be represented by counsel and are permitted to view unclassified discovery that the prosecution plans to present before the tribunal. Section 311: Continuance of Classification Tribunals: Classification tribunals may be continued in order for the government to continue their interrogation of a detainee. Upon a motion from the Government, the classification tribunal board may grant a continuance for up to a 6-month period, if the classification tribunal board determines that: 1) the individual being detained is a high level individual in the planning or financing of terrorist activities, or 2) the individual possesses information vital to the safety of the United States or its citizens. The Government may obtain more than one continuance if it demonstrates that such continuances are necessary for information gathering purposes as it relates to national security. Said applications for Continuances shall be made ex parte and before a detainee is given an attorney. Accordingly, a detainee is only given an attorney once the tribunal is informed that the interrogation efforts have been exhausted. Section 312 & 313: Criminal Prosecution Procedures: Military Commission procedures will be the same as the current procedures afforded detainees under the current system. Section 314: Communication with Persons in Custody: Limits communications by any detainee indicted or convicted under this Act to the individual's interpreter, assigned counsel, prison personnel, and any other individual(s) approved by the Secretary of Defense. Section 315: Commission Counsel: Provides the following criteria for persons to be admitted to practice before a commission: 1) U.S. Citizen, 2) has been admitted to practice law in a State, district, territory or possession of the United States or before Federal Court, 3) has not been disciplined by any court, bar or other competent governmental authority for misconduct, 4) maintains a minimum of ``secret'' clearance and 5) signs a written agreement to comply with all applicable regulations aid instructions for counsel during the course of proceedings. It further provides persons admitted to practice will not confer with any colleague who does not have at least a ``secret'' clearance. This section provides that individuals seeking to practice before a commission will be expedited in consideration for obtaining the necessary security clearance. The decision of the Secretary of Defense regarding the granting or not of the security clearance is final and is not eligible for appeal or review. Finally, this section provides that persons practicing before the commission are eligible to have their travel expenses reimbursed. ______