Congressional Record: September 7, 2006 (Senate)
Page S9113-S9191
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. FRIST (for himself, Mr. McConnell, and Mr. Inhofe):
S. 3861. A bill to facilitate bringing to justice terrorists and
other unlawful enemy combatants through full and fair trials by
military commissions, and for other purposes; read the first time.
Mr. FRIST. I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 3861
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Bringing Terrorists to
Justice Act of 2006''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) For more than 10 years, the al Qaeda terrorist
organization has waged an unlawful war of violence and terror
against the United States and its allies. Al Qaeda was
involved in the bombing of the World Trade Center in New York
City in 1993, the bombing of the United States Embassies in
Kenya and Tanzania in 1998, and the attack on the U.S.S. Cole
in Yemen in 2000. On September 11, 2001, al Qaeda launched
the most deadly foreign attack on United States soil in
history. Nineteen al Qaeda operatives hijacked four
commercial aircraft and piloted them into the World Trade
Center Towers in New York City and the headquarters of the
United States Department of Defense at the Pentagon, and
downed United Airlines Flight 93. The attack destroyed the
Towers, severely damaged the Pentagon, and resulted in the
deaths of approximately 3,000 innocent people.
(2) Following the attacks on the United States on September
11th, Congress recognized the existing hostilities with al
Qaeda and affiliated terrorist organizations and, by the
Authorization for the Use of Military Force Joint Resolution
(Public Law 107-40), recognized that ``the President has
authority under the Constitution to take action to deter and
prevent acts of international terrorism against the United
States'' and authorized the President ``to use all necessary
and appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001 . . . in order to prevent any future acts of
international terrorism against the United States by such
nations, organizations or persons.''
(3) The President's authority to convene military
commissions arises from the Constitution's vesting in the
President of the executive power and the power of Commander
in Chief of the Armed Forces. As the Supreme Court of the
United States recognized in Madsen v. Kinsella, 343 U.S. 341,
346-48 (1952), ``[s]ince our nation's earliest days, such
commissions have been constitutionally recognized agencies
for meeting many urgent governmental responsibilities related
to war. . . . They have taken many forms and borne many
names. Neither their procedure nor their jurisdiction has
been prescribed by statute. It has been adapted in each
instance to the need that called it forth.''
(4) In exercising the authority vested in the President by
the Constitution and laws of the United States, including the
Authorization for Use of Military Force Joint Resolution, and
in accordance with the law of war, the President has detained
enemy combatants in the course of this armed conflict and
issued the Military Order of November 13, 2001, to govern
the ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism.'' This Order
authorized the Secretary of Defense to establish military
commissions to try individuals subject to the Order for
any offenses triable by military commission that such
individuals are alleged to have committed.
(5) The Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct.
2749 (2006), held that the military commissions established
by the Department of Defense under the President's Military
Order of November 13, 2001, were not consistent with certain
aspects of United States domestic law. The Congress may by
law, and does by enactment of this statute, eliminate any
deficiency of statutory authority to facilitate bringing
terrorists with whom the United States is engaged in armed
conflict to justice for violations of the law of war and
other offenses triable by military commissions. The
prosecution of such individuals by military commissions
established and conducted consistent with this Act fully
complies with the Constitution, the laws of the United
States, treaties to which the United States is a party, and
the law of war.
(6) The use of military commissions is particularly
important in this context because other alternatives, such as
the use of courts-martial, generally are impracticable. The
terrorists with whom the United States is engaged in armed
conflict have demonstrated a commitment to the destruction of
the United States and its people, to the violation of the law
of war, and to the abuse of American legal processes. In a
time of ongoing armed conflict, it generally is neither
practicable nor appropriate for combatants like al Qaeda
terrorists to be tried before tribunals that include all of
the procedures associated with courts-martial.
(7) Many procedures for courts-martial would not be
practicable in trying the unlawful enemy combatants for whom
this Act provides for trial by military commission. For
instance, court martial proceedings would in certain
circumstances--
(A) compel the Government to share classified information
with the accused, even though members of al Qaeda cannot be
trusted with our Nation's secrets and it would not be
consistent with the national security of the United States to
provide them with access to classified information;
(B) exclude the use of hearsay evidence even though such
evidence often will be the best and most reliable evidence
that the accused has committed a war crime. For example, many
witnesses in military commission trials are likely to be
foreign nationals who are not amenable to process or may be
precluded for national security reasons from entering the
United States or Guantanamo Bay to testify. Other witnesses
may be unavailable because of military necessity,
incarceration, injury, or death. In short, applying the
hearsay rules from the Manual for Courts-Martial or from the
Federal Rules of Evidence would make it virtually impossible
to bring terrorists to justice for their violations of the
law of war;
(C) specify speedy trials and technical rules for sworn and
authenticated statements when, due to the exigencies of
wartime, the United States cannot safely require members of
the armed forces to gather evidence on the battlefield,
including civilian eyewitness testimony, as though they
were police officers. Nor can the United States divert
members from the front lines and their duty stations to
attend military commission proceedings. Therefore, strict
compliance with such rules for evidence gathered on the
battlefield would be impracticable, given the preeminent
focus on military operations and the chaotic nature of
combat.
(8) The exclusive judicial review for which this Act, and
the Detainee Treatment Act of 2005, provides is without
precedent in the history of armed conflicts involving the
United States, exceeds the scope of judicial review
historically provided for by military commissions, and is
channeled in a manner appropriately tailored to--
(A) the circumstances of the conflicts between the United
States and international terrorist organizations; and
(B) the need to ensure fair treatment of those detained as
enemy combatants, to minimize the diversion of members of the
armed forces from other wartime duties, and to protect the
national security of the United States.
(9) In early 2002, as memorialized in a memorandum dated
February 7, 2002, the President determined that common
Article 3 of the Geneva Conventions did not apply
[[Page S9114]]
with respect to the United States conflict with al Qaeda
because al Qaeda was not a party to those treaties and the
conflict with al Qaeda was an armed conflict of an
international character. That was the interpretation of the
United States prior to the Supreme Court's decision in Hamdan
on June 29, 2006. Hamdan's statement to the contrary makes it
appropriate to clarify the standards imposed by common
Article 3. This Act makes clear that the prohibitions against
cruel, inhuman, and degrading treatment found in the Detainee
Treatment Act of 2005 fully satisfy the obligations of the
United States with respect to the standards for detention and
treatment established by section 1 of common Article 3,
except for those obligations arising under paragraphs (b) and
(d). In addition, the Act makes clear that the Geneva
Conventions are not a source of judicially enforceable
individual rights, thereby reaffirming that enforcement of
the obligations imposed by the Conventions is a matter
between the nations that are parties to them.
SEC. 3. AUTHORIZATION FOR MILITARY COMMISSIONS.
(a) In General.--The President is authorized to establish
military commissions for violations of the law of war and
other offenses triable by military commissions as provided in
section 4 of this Act (chapter 47A of title 10).
(b) Construction.--The authority granted in subsection (a)
shall not be construed to limit the authority of the
President under the Constitution of the United States or the
laws thereof to establish military commissions on the
battlefield, in occupied territories, or in other armed
conflicts should circumstances so require.
(c) Scope of Punishment Authority.--A military commission
established pursuant to subsection (a) shall have authority
to impose upon any person found guilty after a proceeding
under this Act a sentence that is appropriate to the offense
or offenses for which there was a finding of guilt, which
sentence may include death where authorized by this Act,
imprisonment for life or a term of years, payment of a fine
or restitution, or such other lawful punishment or condition
of punishment as the commission shall determine to be proper.
(d) Execution of Punishment.--The Secretary of Defense
shall be authorized to carry out a sentence of punishment
decreed by a military commission pursuant to subsection (a)
in accordance with such procedures as the Secretary may
prescribe.
(e) Annual Report on Trials by Military Commission.--
(1) Annual report required.--Not later than December 31
each year, the Secretary of Defense shall submit to the Armed
Services Committees of the House of Representatives and the
Senate an annual report on the conduct of trials by military
commissions established pursuant to sub-section (a) during
such year.
(2) Form.--Each such report shall be submitted in
unclassified form, with classified annex, if necessary and
consistent with national security.
SEC. 4. MILITRY COMMISSIONS
(a) Military Commissions.--
(1) In general.--Subtitle A of title 10, United States
Code, is amended by inserting after chapter 47 the following
new chapter:
``CHAPTER 47A--MILITARY COMMISSIONS
``SUBCHAPTER I--GENERAL PROVISIONS
``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``Sec. 948a. Definitions
``In this chapter:
``(1) Alien.--The term `alien' means an individual who is
not a citizen of the United States.
``(2) Classified information.--The 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) Commission.--The term `commission' means a military
commission established pursuant to chapter 47A of title 10,
United States Code.
``(4) Convening authority.--The term `convening authority'
shall be the Secretary of Defense or his designee.
``(5) Lawful enemy combatant.--The term `lawful enemy
combatant' means an individual determined by or under the
authority of the President or Secretary of Defense (whether
on an individualized or collective basis) to be: (i) a member
of the regular forces of a State party engaged in hostilities
against the United States or its co-belligerents; (ii) 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 (iii) a
member of a regular armed forces who professes allegiance to
a government engaged in such hostilities, but not recognized
by the United States.
``(6) Secretary.--The term `Secretary' means the Secretary
of Defense.
``(7) Unlawful enemy combatant.--The term `unlawful enemy
combatant' means an individual determined by or under the
authority of the President or the Secretary of Defense--
``(A) to be part of or affiliated with a force or
organization--including but not limited to al Qaeda, the
Taliban, any international terrorist organization, or
associated forces--engaged in hostilities against the United
States or its co-belligerents; in violation of the law of
war;
``(B) to have committed a hostile act in aid of such a
force or organization so engaged; or
``(C) to have supported hostilities in aid of such a force
or organization so engaged.
``This definition includes any individual determined by a
Combatant Status Review Tribunal, before the effective date
of this Act, to have been properly detained as an enemy
combatant, but excludes any alien determined by the President
or the Secretary of Defense (whether on an individualized or
collective basis), or by any competent tribunal established
under their authority, to be (i) a lawful enemy combatant
(including a prisoner of war), or (ii) a protected person
whose trial by these military commissions would be
inconsistent with Articles 64-76 of the Geneva Convention
Relative to the Protection of Civilian Persons in Time of War
of August 12, 1949. For purposes of this section, the term
``protected person'' refers to the category of persons
described in Article 4 of the Geneva Convention Relative to
the Protection of Civilian Persons in Time of War of August
12, 1949.
``(6) Geneva conventions.--The term `Geneva Conventions'
means the international conventions signed at Geneva on
August 12, 1949, including common Article 3.
``Sec. 948b. Military commissions generally
``(a) Purpose.--This chapter codifies and establishes
procedures governing the use of military commissions to try
unlawful enemy combatants for violations of the law of war
and other offenses triable by military commissions. Although
military commissions traditionally have been constituted by
order of the President, the decision of the Supreme Court in
Hamdan v. Rumsfeld makes it both necessary and appropriate to
codify procedures for military commissions as set forth
herein.
``(b) Rule of Construction.--The procedures for military
commissions set forth in this chapter are modeled after the
procedures established for courts-martial in the Uniform Code
of Military Justice. However, it would be neither desirable
nor practicable to try unlawful enemy combatants by court-
martial procedures. The trial of such persons by military
commission presents new challenges that require that
interpretations of this Act not be unduly influenced by the
rules and procedures developed for courts-martial. Therefore,
no construction or application of chapter 47 of this title
shall be binding in the construction or application of this
chapter.
``(c) Alien unlawful enemy combatants may be tried for
violations of the law of war and other offenses triable by
military commissions committed against the United States or
its co-belligerents before, on, or after September 11, 2001.
``(d) A military commission established under this chapter
is a regularly constituted court, affording all the necessary
`judicial guarantees which are recognized as indispensable by
civilized peoples' for purposes of common Article 3 of the
Geneva Conventions.
``Sec. 948c. Persons subject to military commissions
``Alien unlawful enemy combatants, as defined in section
948a of this title, shall be subject to trial by military
commissions as set forth in this chapter.
``Sec. 948d. Jurisdiction of military commissions
``(a) Military commissions shall have jurisdiction to try
any offense made punishable under this chapter, when
committed by an alien unlawful enemy combatant. Military
commissions shall not have jurisdiction over lawful enemy
combatants. Lawful enemy combatants who violate the law of
war are subject to chapter 47 of Title 10, United States
Code. Courts-martial established under chapter 47 shall have
jurisdiction to try a lawful enemy combatant for any
offense made punishable under this chapter.
``(b) Military commissions shall not have jurisdiction over
any individual determined by the President or the Secretary
of Defense (whether on an individualized or collective
basis), or by any competent tribunal established under their
authority, to be a ``protected person'' whose trial by these
military commissions would be inconsistent with Articles 64-
76 of the Geneva Convention Relative to the Protection of
Civilian Persons in Time of War of August 12, 1949. Such
persons shall be tried in courts-martial or other tribunals
consistent with their status under the Geneva Conventions.
For purposes of this section, the term ``protected person''
refers to the category of persons described in Article 4 of
the Geneva Convention Relative to the Protected of Civilian
Persons in Time of War of August 12, 1949.
``(c) Military commissions may, under such limitations as
the Secretary of Defense may prescribe, adjudge any
punishment not forbidden by this chapter, including the
penalty of death where authorized by this chapter.
``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS
``Sec.
``948h. Who may convene military commissions.
[[Page S9115]]
``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.
``Sec. 948h. Who may convene military commissions
``(a) The Secretary may issue orders convening military
commissions to try individuals under this chapter.
``(b) The Secretary may delegate his authority to convene
military commissions or to promulgate any regulations under
this chapter.
``Sec. 948i. Who may serve on military commissions
``(a) In General.--Any commissioned officer of the United
States armed forces on active duty is eligible to serve on a
military commission. Eligible commissioned officers shall
include, without limitation, reserve personnel on active
duty, National Guard personnel on active duty in Federal
service, and retired personnel recalled to active duty.
``(b) Detail of Members.--When convening a commission, the
convening authority shall detail as members thereof such
members of the armed forces as, in his opinion, are fully
qualified for the duty by reason of age, education, training,
experience, length of service, and judicial temperament. No
member of an armed force shall be eligible to serve as a
member of a commission when he is the accuser or a witness
for the prosecution or has acted as an investigator or
counsel in the same case.
``(c) Excuse of Members.--Before a commission is assembled
for the trial of a case, the convening authority may excuse a
member of the commission from participating in the case.
``Sec. 948j. Military judge of a military commission
``(a) Detail of a Military Judge.--A military judge shall
be detailed to each commission. The Secretary shall prescribe
regulations providing for the manner in which military judges
are detailed to such commissions. The military judge shall
preside over each commission to which he has been detailed.
The convening authority shall not prepare or review any
report concerning the effectiveness, fitness, or efficiency
of the military judge so detailed relating to his performance
duty as a military judge.
``(b) Eligibility.--A military judge shall be a
commissioned officer of the armed forces who is a member of
the bar of a Federal court or a member of the bar of the
highest court of a State, and who is certified to be
qualified for duty as a military judge by the Judge Advocate
General of the armed force of which such military judge is a
member. A commissioned officer who is certified to be
qualified for duty as a military judge of a commission may
perform such other duties as are assigned to him by or
with the approval of that Judge Advocate General or his
designee.
``(c) Ineligibility of Certain Individuals.--No person is
eligible to act as military judge in any case in which he is
the accuser or a witness or has acted as investigator or a
counsel in the same case.
``(d) Consultation with Members; Ineligibility To Vote.--
Except as provided in section 949d of this title, the
military judge detailed to the commission may not consult
with the members of the commission except in the presence of
the accused, trial counsel, and defense counsel, nor may he
vote with the members of the commission.
``Sec. 948k. Detail of trial counsel and defense counsel
``(a) Detail of Counsel Generally.--
``(1) Trial counsel and military defense counsel shall be
detailed for each commission.
``(2) Assistant trial counsel and assistant and associate
military defense counsel may be detailed for each commission.
``(3) Military defense counsel shall be detailed as soon as
practicable after the swearing of charges against the person
accused.
``(4) The Secretary shall prescribe regulations providing
for the manner in which counsel are detailed for military
commissions and for the persons who are authorized to detail
counsel for such military commissions.
``(b) Trial Counsel.--Subject to subsection (d), trial
counsel detailed for a military commission under this chapter
must be--
``(1) a judge advocate (as that term is defined in section
801 of this title) who is--
``(A) a graduate of an accredited law school or is a member
of the bar of a Federal court or of the highest court of a
State; and
``(B) certified as competent to perform duties as trial
counsel before general courts-martial by the Judge Advocate
General of the armed force of which he is a member; or
``(2) a civilian who is--
``(A) a member of the bar of a Federal court or of the
highest court of a State; and
``(B) otherwise qualified to practice before the commission
pursuant to regulations prescribed by the Secretary.
``(c) Military Defense Counsel.--Subject to subsection (d),
military defense counsel detailed for a military commission
under this chapter must be a judge advocate (as so defined)
who is--
``(1) a graduate of an accredited law school or a member of
the bar of a Federal court or of the highest court of a
State; and
``(2) certified as competent to perform duties as defense
counsel before general courts-martial by the Judge Advocate
General of the armed force of which he is a member.
``(d) Ineligibility of Certain Individuals.--No person who
has acted as an investigator, military judge, or member of a
military commission under this chapter may act later as trial
counselor or defense counsel in the same case. No person who
has acted for the prosecution may act later in the same case
for the defense, nor may any person who has acted for the
defense act later in the same case for the prosecution.
``Sec. 948l. Detail or employment of reporters and
interpreters
``(a) Court Reporters.--Under such regulations as the
Secretary may prescribe, the convening authority of a
military commission shall detail or employ qualified court
reporters, who shall record the proceedings of and testimony
taken before that commission.
``(b) Interpreters.--Under like regulations the convening
authority may detail or employ interpreters who shall
interpret for the commission, and, as necessary, for trial
counsel and defense counsel.
``(c) Transcript; Record.--The transcript shall be under
the control of the convening authority, which is responsible
for preparing the record of the proceedings.
``Sec. 948m. Number of members; excuse of members; absent and
additional members
``(a) Number of Members.--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 death penalty is sought, the
military commission shall have the number of members
prescribed by section 949m(c) of this title.
``(b) Excuse of Members.--No member of a military
commission may be absent or excused after the commission has
been assembled for the trial of the accused unless excused--
``(1) as a result of challenge;
``(2) by the military judge for physical disability or
other good cause; or
``(3) by order of the convening authority for good cause.
``(c) Absent and Additional Members.--Whenever a military
commission is reduced below the requisite number of members,
the trial may not proceed unless the convening authority
details new members sufficient to provide not less than the
requisite number. The trial may proceed with the new members
present after the recorded evidence previously introduced
before the members of the commission has been read to the
commission in the presence of the military judge, the accused
(except as provided by section 949d of this title), and
counsel for both sides.
``SUBCHAPTER III--PRE-TRIAL PROCEDURE
``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; statements obtained
by torture.
``948s. Service of charges.
``Sec. 948q. Charges and specifications
``(a) Charges and Specifications.--Charges and
specifications against an accused shall be signed by a person
subject to chapter 47 of this title under oath before a
commissioned officer of the armed forces authorized to
administer oaths and shall state--
``(1) that the signer has personal knowledge of, or reason
to believe, the matters set forth therein; and
``(2) that they are true in fact to the best of his
knowledge and belief.
``(b) Notice to Accused.-- Upon 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.
Sec. 948r. Compulsory self-incrimination prohibited;
statements obtained by torture
``(a) In General.--No person shall be required to testify
against himself at a commission proceeding.
``(b) Statements Obtained by Torture.--A statement obtained
by use of torture, as defined in 18 U.S.C. Sec. 2340, whether
or not under color of law, shall not be admissible against
the accused, except against a person accused of torture as
evidence the statement was made.
``(c) Statements Not Obtained by Torture.--No otherwise
admissible statement may be received in evidence, including
statements allegedly obtained by coercion, if the military
judge finds that the circumstances under which the statement
was made render it unreliable or lacking in probative value.
``Sec. 948s. Service of charges
``The trial counsel assigned to the case shall cause to be
served upon the accused and counsel a copy of the charges
upon which trial is to be had in English and, if appropriate,
in another language that the accused
understands, sufficiently in advance of trial to prepare a
defense.
``SUBCHAPTER IV--TRIAL PROCEDURE
``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
[[Page S9116]]
``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.
``Sec. 949a. Rules
``(a) Procedures.--Pretrial, trial, and post-trial
procedures, including elements and modes of proof, for cases
triable by military commission under this chapter shall be
prescribed by the Secretary, but may not be contrary to or
inconsistent with this chapter.
``(b) Rules of Evidence.--Subject to such exceptions and
limitations as the Secretary may provide by regulation,
evidence in a military commission shall be admissible if the
military judge determines that the evidence would have
probative value to a reasonable person.
``(c) Hearsay Evidence.--Hearsay evidence is admissible,
unless the military judge finds that the circumstances render
it unreliable or lacking in probative value, provided that
the proponent of the evidence makes the evidence known to the
adverse party in advance of trial or hearing.
``The military judge shall exclude any evidence the
probative value of which is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the members of the commission, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
``Sec. 949b. Unlawfully influencing action of military
commission
``(a) In General.--(1) No authority convening a military
commission under this chapter may censure, reprimand, or
admonish the commission or any member, military judge, or
counsel thereof, with respect to the findings or sentence
adjudged by the commission, or with respect to any other
exercises of its or his functions in the conduct of the
proceedings.
``(2) No person may attempt to coerce or, by any
unauthorized means, influence the action of a commission or
any member thereof, in reaching the findings or sentence in
any case, or the action of any convening, approving, or
reviewing authority with respect to his judicial acts.
``(3) The foregoing provisions of this subsection shall not
apply with respect to--
``(A) general instructional or informational courses in
military justice if such courses are designed solely for the
purpose of instructing members of a command in the
substantive and procedural aspects of military commissions;
or
``(B) statements and instructions given in open proceedings
by the military judge or counsel.
``(b) Prohibition on Consideration of Actions on Commission
in Evaluation of Fitness.--In the preparation of an
effectiveness, fitness, or efficiency report or any other
report or document used in whole or in part for the purpose
of determining whether a commissioned officer of the armed
forces is qualified to be advanced, in grade, or in
determining the assignment or transfer of any such officer or
in determining whether any such officer should be retained on
active duty, no person may--
``(1) consider or evaluate the performance of duty of any
member of a military commission under this chapter; or
``(2) give a less favorable rating or evaluation to any
commissioned officer because of the zeal with which such
officer, in acting as counsel, represented any accused before
a military commission under this chapter.
``Sec. 949c. Duties of trial counsel and defense counsel
``(a) Trial Counsel.--The trial counsel of a military
commission shall prosecute in the name of the United States.
``(b) Defense Counsel.--(1) The accused shall be
represented in his defense before a military commission as
provided in this subsection.
``(2) The accused shall be represented by military counsel
detailed under section 948k of this title.
``(3) The accused may be represented by civilian counsel if
retained by him, provided that civilian counsel--
``(A) is a United States citizen;
``(B) is admitted to the practice of law in a State,
district, territory, or possession of the United States, or
before a Federal court;
``(C) has not been the subject of any sanction of
disciplinary action by any court, bar, or other competent
governmental authority for relevant misconduct;
``(D) has been determined to be eligible for access to
information classified at the level Secret or higher; and
``(E) has signed a written agreement to comply with all
applicable regulations or instructions for counsel, including
any rules of court for conduct during the proceedings.
``Civilian defense counsel shall protect any classified
information received during the course of their
representation of the accused in accordance with all
applicable law governing the protection of classified
information, and shall not divulge such information to any
person not authorized to receive it.
``(4) If the accused is represented by civilian counsel,
military counsel detailed shall act as associate counsel.
``(5) The accused is not entitled to be represented by more
than one military counsel. However, the person authorized
under regulations prescribed under section 948k of this title
to detail counsel in his sole discretion may detail
additional military counsel.
``(6) Defense counsel may cross-examine each witness for
the prosecution who testifies before the commission.
``Sec. 949d. Sessions
``(a) Sessions Without Presence of Members.--(1) At any
time after the service of charges which have been referred
for trial by military commission, the military judge may call
the commission into session without the presence of the
members for the purpose of--
``(A) hearing and determining motions raising defenses or
objections which are capable of determination without trial
of the issues raised by a plea of not guilty;
``(B) hearing and ruling upon any matter which may be ruled
upon by the military judge under this chapter, whether or not
the matter is appropriate for later consideration or decision
by the members of the commission;
``(C) if permitted by regulations of the Secretary,
receiving the pleas of the accused; and
``(D) performing any other procedural function which may be
performed by the military judge under this chapter or under
rules prescribed pursuant to section 949a of this title and
which does not require the presence of the members of the
commission.
``(2) Except as provided in subsection (e), any proceedings
under paragraph (1) shall be conducted in the presence of the
accused, defense counsel, and trial counsel, and shall be
made part of the record.
``(b) Proceedings in Presence of Accused.--Except as
provided in subsections (c) and ( e), all proceedings of a
military commission under this chapter shall be in the
presence of the accused, defense counsel, and trial counsel,
and shall be made a part of the record.
``(c) Deliberations or Vote of Members.--When the members
of the commission deliberate or vote, only the members may be
present.
``(d) Public Proceedings.--(1) The military commission
shall hold open and public proceedings.
``(2) The military judge may close to the public all or a
part of the proceedings of a military commission under this
chapter only upon making a specific finding that such closure
is necessary to--
``(A) protect information the disclosure of which could
reasonably be expected to cause identifiable damage to the
public interest or the national security, including
intelligence or law enforcement sources, methods, or
activities; or
``(B) ensure the physical safety of individuals.
``(e) Limited Exclusion of the Accused for the Protection
of Classified Information.--(1) The military judge may,
subject to the provisions of this subsection, permit the
admission in a military commission under this chapter of
classified information outside the presence of the accused.
``(2) The military judge shall not exclude the accused from
any portion of the proceeding except upon a specific finding
that extraordinary circumstances exist such that--
``(A) the exclusion of the accused--
``(i) is necessary to protect classified information the
disclosure of which to the accused could reasonably be
expected to cause identifiable damage to the national
security, including intelligence or law enforcement sources,
methods, or activities; or
``(ii) is necessary to ensure the physical safety of
individuals; or
``(iii) is necessary to prevent disruption of the
proceedings by the accused; and
``(B) the exclusion of the accused--
``(i) is no broader than necessary; and
``(ii) will not deprive the accused of a full and fair
trial.
``(3)(A) A finding under paragraph (2) may be based upon a
presentation, including an ex parte or in camera
presentation, by either trial counselor defense counsel.
``(B) Before trial counsel may make a presentation
described in subparagraph (A) requesting the admission of
classified evidence outside the presence of the accused,
the head of the executive or military department or
governmental agency which has control over the matter
(after personal consideration by that officer) shall
certify in writing to the military judge that--
``(i) the disclosure of such classified information to the
accused could reasonably be expected to prejudice the
national security; and
``(ii) such evidence has been declassified to the maximum
extent possible, consistent with the requirements of national
security.
``(4)(A) No evidence shall be admitted if the accused is
not present for its admission or the evidence is not
otherwise provided to the accused, unless the evidence is
classified information and the military judge makes a
specific finding that--
``(i) consideration of the evidence by the commission,
without the presence of the accused, is warranted; and
``(ii) admission of an unclassified summary or redacted
version of that evidence would not be an adequate substitute
and, in the case of testimony, alternative methods to obscure
the identity of the witness are not adequate; and
``(iii) admission of the evidence would not deprive the
accused of a full and fair trial.
[[Page S9117]]
``(B) If the accused is excluded from a portion of the
proceeding, the accused shall be provided with a redacted
transcript of the proceeding and, to the extent practicable,
an unclassified summary of any evidence introduced. Under no
circumstances shall such a summary or redacted transcript
compromise the interests warranting the exclusion of the
accused under this subsection.
``(5)(A) Military defense counsel shall be present and able
to participate in all trial proceedings, and shall be given
access to all evidence admitted under subparagraph (4).
``(B) Civilian defense counsel shall be permitted to be
present and to participate in all trial proceedings, and
shall be given access to evidence admitted under sub-
paragraph (4), provided that civilian defense counsel has
obtained the necessary security clearances and that such
presence and access are consistent with regulations that the
Secretary may prescribe to protect classified information.
``(C) Notwithstanding any other provision of law, any
defense counsel who receives classified information admitted
pursuant to subparagraph (4) shall not be obligated to, and
may not, disclose that evidence to the accused.
``(f) Admission of Statements of Accused.--(l)
Notwithstanding any other provision in this chapter, no
statement made by the accused during an interrogation, even
if otherwise classified, may be admitted into evidence in a
military commission under this chapter unless the accused is
present for its admission or the evidence is otherwise
provided to the accused.
``(2) For purposes of this subsection, a `statement' is a
statement communicated knowingly and directly by the accused
in response to questioning by foreign or United States
military, intelligence, or criminal investigative personnel.
This paragraph shall not be construed to prevent the
redaction of intelligence sources or methods, which do not
constitute statements of the accused, from any document
provided to the accused or admitted into evidence.
``Sec. 949e. Continuances
``The military judge may, for reasonable cause, grant a
continuance to any party for such time, and as often, as may
appear to be just.
``Sec. 949f. Challenges
``(a) Challenges Authorized.--The military judge and
members of the commission may be challenged by the accused or
the trial counsel for cause stated to the commission. The
military judge shall determine the relevance and validity of
the challenges for cause, and may not receive a challenge to
more than one person at a time. Challenges by the trial
counsel shall ordinarily be presented and decided before
those by the accused are offered.
``(b) Peremptory Challenges.--Each accused and the trial
counsel is entitled to one peremptory challenge, but the
military judge may not be challenged except for cause.
``(c) Challenges Against Additional Members.--Whenever
additional members are detailed to the court, and after any
challenges for cause against such additional members are
presented and decided each accused and the trial counsel are
entitled to one peremptory challenge against members not
previously subject to peremptory challenge.
``Sec. 949g. Oaths
``(a) In General.--(l) Before performing their respective
duties, military judges, members of commissions, trial
counsel, defense counsel, reporters, and interpreters shall
take an oath to perform their duties faithfully.
``(2) The form of the oath required by paragraph (1), the
time and place of the taking thereof, the manner of recording
the same, and whether the oath shall be taken for all cases
in which these duties are to be performed or for a particular
case, shall be as prescribed in regulations of the Secretary.
These regulations may provide that--
``(A) an oath to perform faithfully duties as a military
judge, trial counsel, or defense counsel, may be taken at any
time by any judge advocate or other person certified to be
qualified or competent for duty; and
``(B) if such an oath is taken it need not again be taken
at the time the judge advocate, or other person is detailed
to that duty.
``(b) Witnesses.--Each witness before a military commission
under this chapter shall be examined on oath.
``(c) Oath Defined.--As used in this section, ``oath''
includes an affirmation.
``Sec. 949h. Former jeopardy
``(a) In General.--No person may, without his consent, be
tried by a commission a second time for the same offense.
``(b) Scope of Trial.--No proceeding in which the accused
has been found guilty by military commission upon any charge
or specification is a trial in the sense of this section
until the finding of guilty has become final after review of
the case has been fully completed.
``Sec. 949i. Pleas of the accused
``(a) Plea of Not Guilty.--If an accused after a plea of
guilty sets up matter inconsistent with the plea, or if it
appears that he has entered the plea of guilty through lack
of understanding of its meaning and effect, or if he fails or
refuses to plead, a plea of not guilty shall be entered in
the record, and the commission shall proceed as though he had
pleaded not guilty.
``(b) Finding of Guilt After Guilty Plea.--With respect to
any charge or specification to which a plea of guilty has
been made by the accused and accepted by the military judge,
a finding of guilty of the charge or specification may be
entered immediately without a vote. This finding shall
constitute the finding of the commission unless the plea of
guilty is withdrawn prior to announcement of the sentence, in
which event the proceedings shall continue as though the
accused had pleaded not guilty.
``Sec. 949j. Opportunity to obtain witnesses and other
evidence
``(a) In General.--(1) Defense counsel in a military
commission under this chapter shall have a reasonable
opportunity to obtain witnesses and other evidence, including
evidence in the possession of the United States, as specified
in regulations prescribed by the Secretary.
``(2) Process issued in military commissions to compel
witnesses to appear and testify and to compel the production
of other evidence--
``(A) shall be similar to that which courts of the United
States having criminal jurisdiction may lawfully issue; and
``(B) shall run to any place where the United States shall
have jurisdiction thereof.
``(b) Treatment of Certain Items.--The military judge in a
military commission under this chapter may, upon a sufficient
showing, authorize trial counsel in making documents
available to the defense through discovery conducted pursuant
to such rules as the Secretary shall prescribe--
``(1) to delete specified items of classified information
from such documents;
``(2) to substitute an unclassified summary of the
information for such classified documents; or
``(3) to substitute an unclassified statement admitting
relevant facts that classified information would tend to
prove.
``(c) Disclosure of Exculpatory Evidence.--(1) As soon as
practicable, trial counsel in a military commission under
this chapter shall disclose to the defense the existence of
any evidence known to trial counsel that reasonably tends to
exculpate the accused.
``(2) Exculpatory evidence that is classified may be
provided solely to defense counsel, and not the accused,
after in camera review by the military judge.
``(3) Before classified evidence may be withheld from the
accused under this subsection, the executive or military
department or governmental agency which has control over the
matter shall ensure and shall certify in writing to the
military judge that the disclosure of such evidence to the
accused could reasonably be expected to prejudice the
national security and that such evidence has been
declassified to the maximum extent possible, consistent with
the requirements of national security.
``(4) Any classified exculpatory evidence that is not
disclosed to the accused under this subsection--
``(A) shall be provided to military defense counsel; and
``(B) shall be provided to civilian defense counsel,
provided that civilian defense counsel has obtained the
necessary security clearances and access to such evidence is
consistent with regulations that the Secretary may prescribe
to protect classified information; and
``(C) shall be provided to the accused in a redacted or
summary form, if it is possible to do so without compromising
intelligence sources, methods, or activities, or other
national security interests.
``(5) Notwithstanding any other provision of law, any
defense counsel who receives evidence under this subsection
shall not be obligated to, and may not, disclose that
evidence to the accused.
``Sec. 949k. Defense of lack of mental responsibility
``(a) Affirmative Defense.--It is an affirmative defense in
a trial by military commission that, at the time of the
commission of the acts constituting the offense, the accused,
as a result of a severe mental disease or defect, was unable
to appreciate the nature and quality or the wrongfulness of
the acts. Mental disease or defect does not otherwise
constitute a defense.
``(b) Burden of Proof.--The accused has the burden of
proving the defense of lack of mental responsibility by clear
and convincing evidence.
``(c) Findings Following Assertion of Defense.--Whenever
lack of mental responsibility of the accused with respect to
an offense is properly at issue, the military judge shall
instruct the members of the commission as to the defense of
lack of mental responsibility under this section and shall
charge them to find the accused--
``(1) guilty;
``(2) not guilty; or
``(3) not guilty only by reason of lack of mental
responsibility.
``(d) Majority Vote Required for Finding.--The accused
shall be found not guilty only by reason of lack of mental
responsibility under subsection (c)(3) only if a majority of
the members of the commission at the time the vote is taken
determines that the defense of lack of mental responsibility
has been established.
``Sec. 949l. Voting and rulings
``(a) Vote by Secret Written Ballot.--Voting by members of
a military commission on the findings and on the sentence
shall be by secret written ballot.
``(b) Rulings.--(1) The military judge shall rule upon all
questions of law, including the
[[Page S9118]]
admissibility of evidence, and all interlocutory questions
arising during the proceedings.
``(2) Any such ruling made by the military judge upon any
question of law or any interlocutory question other than the
factual issue of mental responsibility of the accused is
conclusive and constitutes the ruling of the commission.
However, the military judge may change his ruling at any time
during the trial.
``(C) Instructions Prior to Vote.--Before a vote is taken
of the findings, the military judge shall, in the presence of
the accused and counsel, instruct the members of the
commission as to the elements of the offense and charge
them--
``(l) that the accused must be presumed to be innocent
until his guilt is established by legal and competent
evidence beyond reasonable doubt;
``(2) that in the case being considered, if there is a
reasonable doubt as to the guilt of the accused, the doubt
must be resolved in favor of the accused and he must be
acquitted;
``(3) that, if there is reasonable doubt as to the degree
of guilt, the finding must be in a lower degree as to which
there is no reasonable doubt; and
``(4) that the burden of proof to establish the guilt of
the accused beyond a reasonable doubt is upon the United
States.
``Sec. 949m. Number of votes required
``(a) Conviction.--No person may be convicted 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 suffer death, except
insofar as--
``(A) death has been expressly authorized under this Act
for an offense of which the accused has been found guilty;
``(B) the charges referred to the commission expressly
sought the penalty of death;
``(C) the accused was convicted of the offense by the
concurrence of all the members of the military commission
present at the time the vote is taken; and
``(D) all members of the military commission present at the
time the vote was taken concurred in the sentence of death.
``(3) No person may be sentenced to life imprisonment or to
confinement for more than 10 years, except by the concurrence
of three-fourths of the members at the time the vote is
taken.
``(c) Number of Members Required for Penalty of Death.--(1)
Except as provided in paragraph (2), in a case in which the
penalty of death is sought, the number of members shall be
not less than 12.
``(2) In any case described in paragraph (1) in which 12
members are not reasonably available because of physical
conditions or military exigencies, the convening authority
shall specify a lesser number of members for the military
commission (but not fewer than 5 members), and the military
commission may be assembled and the trial held with not fewer
than the number of members so specified. In such a case, the
convening authority shall make a detailed written statement,
to be appended to the record, stating why a greater number of
members were not reasonably available.
``Sec. 949n. Military commission to announce action
``A military commission shall announce its findings and
sentence to the parties as soon as determined.
``Sec. 949o. Record of trial
``(a) Record; Authentication.--Each military commission
shall keep a separate, substantially verbatim, record of the
proceedings in each case brought before it, and the record
shall be authenticated by the signature of the military
judge. If the record cannot be authenticated by the military
judge by reason of his death, disability, or absence, it
shall be authenticated by the signature of the trial counsel
or by that of a member of the commission if the trial counsel
is unable to authenticate it by reason of his death,
disability, or absence. Where appropriate, and as provided by
regulation, the record of the military commission may contain
a classified annex.
``(b) Complete Record Required.--A complete record of the
proceedings and testimony shall be prepared in every military
commission established under this chapter.
``(c) Provision of Copy to Accused.--A copy of the record
of the proceedings of each military commission shall be given
to the accused as soon as it is authenticated. Where the
record contains classified information, or a classified
annex, the accused shall receive a redacted version of the
record. The appropriate defense counsel shall have access to
the unredacted record, as provided by regulation.
``SUBCHAPTER V--SENTENCES
``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.
``Sec. 949s. Cruel or unusual punishments prohibited
``Punishment by flogging, or by branding, marking, or
tattooing on the body, or any other cruel or unusual
punishment, may not be adjudged by a military commission or
inflicted upon any person subject to this chapter. The use of
irons, single or double, except for the purpose of safe
custody, is prohibited.
``Sec. 949t. Maximum limits
``The punishment which a military commission may direct for
an offense may not exceed such limits as the President or
Secretary may prescribe for that offense.
``Sec. 949u. Execution of confinement
``(a) In General.--Under such regulations as the Secretary
may prescribe, a sentence of confinement adjudged by a
military commission may be carried into execution by
confinement--
``(1) in any place of confinement under the control of any
of the armed forces; or
``(2) in any penal or correctional institution under the
control of the United States or its allies or which the
United States may be allowed to use.
``(b) Treatment During Confinement by Other than the Armed
Forces.--Persons confined under subsection (a)(2) in a penal
or correctional institution not under the control of one of
the armed forces are subject to the same discipline and
treatment as persons confined or committed by the courts of
the United States or of the State, Territory, District of
Columbia, or place in which the institution is situated.
``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY
COMMISSIONS
``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District
of Columbia Circuit and the Supreme Court of the United
States.
``950h. Appellate counsel.
``950i. Execution of sentence; suspension of sentence.
``950j. Finality or proceedings, findings, and sentences.
``950a. Error of law; lesser included offense
``(a) Error of Law.--A finding or sentence of a military
commission may not be held incorrect on the ground of an
error of law unless the error materially prejudices the
substantial rights of the accused.
``(b) Lesser Included Offense.--Any reviewing authority
with the power to approve or affirm a finding of guilty may
approve or affirm, instead, so much of the finding as
includes a lesser included offense.
``Sec. 950b. Review by the convening authority
``(a) Notice to Convening Authority of Findings and
Sentence.--The findings and sentence of a military commission
under this chapter shall be reported in writing promptly to
the convening authority after the announcement of the
sentence.
``(b) Submittal of Matters by Accused to Convening
Authority.--The accused may submit to the convening authority
matters for consideration by the convening authority with
respect to the findings and the sentence of the military
commission under this chapter.
``(2)(A) Except as provided in subparagraph (B), a
submittal under paragraph (1) shall be made in writing within
20 days after the accused has been given an authenticated
record of trial under section 949o(c) of this title.
``(B) If the accused shows that additional time is required
for the accused to make a submittal under paragraph (1), the
convening authority, for good cause, may extend the
applicable period under subparagraph (A) for not more than an
additional 20 days.
``(3) The accused may waive his right to make a submission
to the convening authority under paragraph (1). Such a waiver
must be made in writing and may not be revoked. For the
purposes of subsection (c)(2), the time within which the
accused may make a submission under this subsection shall be
deemed to have expired upon the submission of such a waiver
to the convening authority.
``(c) Action by the Convening Authority.--(1) The authority
under this section to modify the findings and sentence of a
military commission under this chapter is a matter of the
sole discretion and prerogative of the convening authority.
``(3)(A) Action on the sentence of a military commission
shall be taken by the convening authority.
``(B) Subject to regulations of the Secretary, such action
may be taken only after consideration of any matters
submitted by the accused under subsection (b) or after the
time for submitting such matters expires, whichever is
earlier.
``(C) In taking action under this paragraph, the convening
authority, in his sole discretion, may approve, disapprove,
commute, or suspend the sentence in whole or in part. The
convening authority may not increase the sentence beyond that
which is found by the commission.
``(3) Action on the findings of a military commission by
the convening authority is not required. However, the
convening authority, in his sole discretion, may--
``(A) dismiss any charge or specification by setting aside
a finding of guilty thereto; or
``(B) change a finding of guilty to a charge to a finding
of guilty to an offense that is a lesser included offense of
the offense stated in the charge.
[[Page S9119]]
``(4) The convening authority shall serve on the accused or
on defense counsel notice of any action taken by the
convening authority under this subsection.
``(d) Order of Revision or Rehearing.--(1) Subject to
paragraphs (2) and (3), the convening authority, in his sole
discretion, may order a proceeding in revision or a
rehearing.
``(2)(A) Except as provided in subparagraph (B), a
proceeding in revision may be ordered if--
``(i) there is an apparent error or omission in the record;
or
``(ii) the record shows improper or inconsistent action by
a military commission with respect to the findings or
sentence that can be rectified without material prejudice to
the substantial rights of the accused.
``(B) In no case may a proceeding in revision--
``(i) reconsider a finding of not guilty of any
specification or a ruling which amounts to a finding of not
guilty;
``(ii) reconsider a finding of not guilty of any charge,
unless there has been a finding of guilty under a
specification laid under that charge, which sufficiently
alleges a violation;
``(iii) increase the severity of the sentence unless the
sentence prescribed for the offense is mandatory.
``(3) A rehearing may be ordered by the convening authority
if he disapproves the findings and sentence and states the
reasons for disapproval of the findings. If such a person
disapproves the findings and sentence and does not order a
rehearing, he shall dismiss the charges. A rehearing as to
the findings may not be ordered where there is a lack of
sufficient evidence in the record to support the findings. A
rehearing as to the sentence may be ordered if the convening
authority disapproves the sentence.
``Sec. 950c. Waiver or withdrawal of appeal
``(a) Waiver of Right of Review.--(1) In each case subject
to appellate review under section 950f and 950g of this
title, except a case in which the sentence as approved under
section 950b of this title includes death, the accused may
file with the convening authority a statement expressly
waiving the right of the accused to such review.
``(2) A waiver under paragraph (1) shall be signed by both
the accused and by a defense counsel.
``(3) A waiver under paragraph (1) must be filed, if at
all, within 10 days after notice on the action is served on
the accused under section 950b(c)(4) of this title. The
convening authority, for good cause, may extend the period
for such filing by not more than 30 days.
``(b) Withdrawal of Appeal.--Except in a case in which the
sentence as approved under section 950b of this title
includes death, the accused may withdraw an appeal at any
time.
``(c) Effect of Waiver or Withdrawal.--A waiver of the
right to appellate review or the withdrawal of an appeal
under this section bars review under section 950f or 950g of
this title.
``Sec. 950d. Appeal by the United States
``(a) Interlocutory appeal.--(1) Except as provided in
paragraph (2), in a trial by military commission under this
chapter, the United States may take an interlocutory appeal
to the Court of Military Commission Review of any order or
ruling of the military judge that--
``(A) terminates commission proceedings with respect to a
charge or specification;
``(B) excludes evidence that is substantial proof of a fact
material in the proceeding; or
``(C) relates to a matter under subsection (d), (e), or (f)
of section 949d of this title.
``(2) The United States may not appeal under paragraph (1)
an order or ruling that is, or amounts to, a finding of not
guilty by the commission with respect to the charge or
specification.
``(b) Notice of Appeal.--The 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 such order or ruling.
``(c) Appeal.--An appeal under this section shall be
forwarded by means prescribed under regulations of the
Secretary directly to the Court of Military Commission
Review. In ruling on an appeal under this section, the Court
of Military Commission Review may act only with respect to
matters of law.
``(d) Court of Appeals.--The United States may appeal an
adverse ruling under subsection (c) to the United States
Court of Appeals for the District of Columbia Circuit by
filing a petition for review in the Court of Appeals within
10 days after the date of such ruling. Review under this
subsection shall be at the discretion of the Court of
Appeals.
``950e. Rehearings
``(a) Composition of Military Commission for Rehearing.--
Each rehearing under this chapter shall take place before a
military commission composed of members not members of the
commission which first heard the case.
``(b) Scope of Rehearing.--(1) Upon a rehearing--
``(A) the accused may not be tried for any offense of which
he was found not guilty by the first commission; and
``(B) no sentence in excess of or more than the original
sentence may be imposed unless--
``(i) the sentence is based upon a finding of guilty of an
offense not considered upon the merits in the original
proceedings; or
``(ii) unless the sentence prescribed for the offense is
mandatory.
``(2) Upon a rehearing, if the sentence approved after the
first commission was in accordance with a 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 commission.
``Sec. 950f. Review by Court of Military Commission Review
``(a) Court Established.--(1) The Secretary shall establish
a Court of Military Commission Review which shall be composed
of one or more panels, and each such panel shall be composed
of not less than three appellate military judges.
``(2) For the purpose of reviewing military commission
decisions, the court may sit in panels or as a whole in
accordance with rules prescribed by the Secretary.
``(b) Composition of the Court.--(l) The Secretary shall
assign appellate military judges to a Court of Military
Commission Review.
``(2) Each appellate military judge shall meet the
qualifications for military judges prescribed by section
948j(b) of this Act or shall be a civilian with comparable
qualifications.
``(3) No person may be appointed to serve as an appellate
military judge in any case in which that person acted as a
military judge, counsel, or reviewing official.
``(c) Right of Appeal.--The accused may appeal from the
final decision of a military commission, and the United
States may appeal as provided in section 950d of this title,
to the Court of Military Commission Review in accordance with
procedures prescribed under regulations of the Secretary.
``(d) Scope of Review.--In ruling on an appeal under this
section, the Court of Military Commission Review may act only
with respect to matters of law.
``Sec. 950g. Review by the United States Court of Appeals for
the District of Columbia Circuit and the Supreme Court of
the United States
``(a) In General.--(1)(A) Except as provided in
subparagraph (B), the United States Court of Appeals for the
District of Columbia Circuit shall have exclusive
jurisdiction to determine the validity of a final judgment
rendered by a military commission, pursuant to Section
1005(e)(3) of the Detainee Treatment Act of 2005.
``(B) The Court of Appeals shall not review the final
judgment until all other appeals under this chapter have been
waived or exhausted.
``(2) A petition for review must be filed by the accused in
the Court of Appeals by no longer than 20 days from the
earlier of when--
``(A) written notice of the final decision of the Court of
Military Commission Review is served on the accused or on
defense counsel; or
``(B) the accused submits, in the form prescribed by
section 950c of this title, a written notice waiving his
right to appeal under section 950f of this title.
``(b) Review by Supreme Court.--The Supreme Court of the
United States may review by writ of certiorari the final
judgment of the Court of Appeals pursuant to section 1257 of
title 28, United States Code.
``Sec. 950h. Appellate counsel
``(a) Appointment.--The Secretary shall, by regulation,
establish procedures for the appointment of appellate counsel
for the United States and for the accused in military
commissions under this chapter. Appellate counsel shall meet
the qualifications for appearing before military commissions
under this chapter.
``(b) Representation of United States.--Appellate counsel
may represent the United States in any appeal or review
proceeding under this chapter. Appellate Government counsel
may represent the United States before the Supreme Court in
cases arising under this chapter when requested to do so
by the Attorney General.
``(c) Representation of Accused.--The accused shall be
represented by appellate military counsel before the Court of
Military Commission Review, the United State Court of Appeals
for the District of Columbia Circuit, or the Supreme Court,
or by civilian counsel if retained by him.
``Sec. 950i. Execution of sentence; suspension of sentence
``(a) Execution of Sentence of Death Only Upon Approval by
the President.--If the sentence of a military commission
under this chapter extends to death, that part of the
sentence providing for death may not be executed until
approved by the President. In such a case, the President may
commute, remit, or suspend the sentence, or any part thereof,
as he sees fit.
``(b) Execution of Sentence of Death Only Upon Final
Judgment of legality of Proceedings.--(1) If the sentence of
a military commission under this chapter extends to death,
the sentence may not be executed until there is a final
judgment as to the legality of the proceedings (and with
respect to death, approval under subsection (a)).
``(2) A judgment as to legality of the proceedings is final
for purposes of paragraph (1) when--
``(A) review is completed by the Court of Military
Commission Review and--
``(i) the time for the accused to file a petition for
review by the Court of Appeals for the D.C. Circuit has
expired; and
[[Page S9120]]
``(ii) the accused has not filed a timely petition for such
review; and
``(iii) the case is not otherwise under review by that
Court; or
``(B) review is completed in accordance with judgment of
the Court of Appeals for the D.C. Circuit and--
``(i) a petition for a writ of certiorari is not timely
filed;
``(ii) such a petition is denied by the Supreme Court; or
``(iii) review is otherwise completed in accordance with
the judgment of the Supreme Court.
``(c) Suspension of Sentence.--The Secretary, or the
convening authority acting on the case (if other than the
Secretary), may suspend the execution of any sentence or part
thereof in the case, except a sentence of death.
``Sec. 950j. Finality of proceedings, findings, and sentences
``(a) Finality.--The appellate review of records of trial
provided by this chapter, the proceedings, findings, and
sentences of military commissions as approved, reviewed, or
affirmed as required by this chapter, are final and
conclusive. Orders publishing the proceedings of military
commissions are binding upon all departments, courts,
agencies, and officers of the United States, subject only to
authority of the President.
``(b) Provisions of Chapter Sole Basis for Review of
Military Commission Procedures and Actions.--Except as
otherwise provided in this chapter, and notwithstanding any
other law (including section 2241 of title 28, United States
Code, or any other habeas corpus provision), no court,
justice, or judge shall have jurisdiction to hear or consider
any claim or cause of action whatsoever, including any action
pending on or filed after the date of enactment of this
chapter, relating to the prosecution, trial, or judgment of a
military commission convened under this section, including
challenges to the lawfulness of the procedures of military
commissions under this chapter.
``SUBCHAPTER VII--PUNITIVE MATTERS
``Sec.
``950p. Substantive offenses.
``950q. Principals.
``950r. Accessory after the fact.
``950s. Conviction of lesser offenses.
``950t. Attempts.
``950u. Solicitation.
``950v. Crimes triable by military commission.
``950w. Perjury and obstruction of justice.
``950x. Contempt.
``Sec. 950p. Substantive offenses generally
``(a) Purpose.--The following provisions codify offenses
that have traditionally been triable by military commissions.
This Act does not establish new crimes that did not exist
before its establishment, but rather codifies those crimes
for trial by military commission.
``(b) Effect.--Because these provisions are declarative of
existing law, they do not preclude trial for crimes that
occurred prior to their effective date.
``Sec. 950q. Principals
``Any person is punishable as a principal under this
chapter who--
``(1) commits an offense punishable by this chapter, or
aids, abets, counsels, commands, or procures its commission;
or
``(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.
``Sec. 950r. Accessory after the fact
``Any person subject to this chapter who, knowing that an
offense punishable by this chapter has been committed,
receives, comforts, or assists the offender in order to
hinder or prevent his apprehension, trial, or punishment
shall be punished as a military commission may direct.
``Sec. 950s. Conviction of lesser offenses
``An accused may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit
either the offense charged or an offense necessarily included
therein.
``Sec. 950t. Attempts
``(a) In General.--Any person subject to this chapter who
attempts to commit any offense punishable by this Act shall
be punished as a military commission may direct.
``(b) Scope of Offense.--An act, done with specific intent
to commit an offense under this chapter, amounting to more
than mere preparation and tending, even though failing, to
effect its commission, is an attempt to commit that offense.
``(c) Effect of Consummation.--Any person subject to this
chapter may be convicted of an attempt to commit an offense
although it appears on the trial that the offense was
consummated.
``Sec. 950u. Solicitation
``Any person subject to this chapter who solicits or
advises another or others to commit one or more substantive
offenses triable by military commission shall, if the offense
solicited or advised is attempted or committed, be punished
with the punishment provided for the commission of the
offense, but, if the offense solicited or advised is not
committed or attempted, he shall be punished as a military
commission may direct.
``Sec. 950v. Crimes triable by military commission
``(a) Definitions and Construction.--(1) For purposes of
this chapter, the term `military objective' refers to
combatants and those objects during an armed conflict which,
by their nature, location, purpose, or use, effectively
contribute to the opposing force's war-fighting or war-
sustaining capability and whose total or partial destruction,
capture, or neutralization would constitute a definite
military advantage to the attacker under the circumstances at
the time of the attack.
``(2) For purposes of this section only, `protected person'
refers to any person entitled to protection under one or more
of the Geneva Conventions, including civilians not taking an
active part in hostilities, military personnel placed hors de
combat by sickness, wounds, or detention, and military
medical or religious personnel.
``(3) For purposes of this chapter, the term `protected
property' refers to property specifically protected by the
law of war such as buildings dedicated to religion,
education, art, science or charitable purposes, historic
monuments, hospitals, or places where the sick and wounded
are collected, provided they are not being used for military
purposes or are not otherwise military objectives. Such
property would include objects properly identified by one of
the distinctive emblems of the Geneva Conventions but does
not include all civilian property.
``(4) The intent required for offenses (1), (2), (3), (4)
and (12) under subsection (b) precludes their applicability
with regard to collateral damage or to death, damage, or
injury incident to a lawful attack.
``(b) Offenses.--The following enumerated offenses, when
committed in the context of and associated with armed
conflict, shall be triable by military commission under this
chapter at any time without limitation--
``(1) Murder of Protected Persons.--Any person who
intentionally kills one or more protected persons is guilty
of the offense of intentionally killing protected persons
and shall be subject to whatever punishment the commission
may direct, including the penalty of death.
``(2) Attacking civilians.--Any person who intentionally
engages in an attack upon a civilian population as such or
individual civilians not taking active part in hostilities is
guilty of the offense of attacking civilians and shall be
subject to whatever punishment the commission may direct,
including, if death results to one or more of the victims,
the penalty of death.
``(3) Attacking civilian objects.--Any person who
intentionally engages in an attack upon civilian objects
(property that is not a military objective) shall be guilty
of the offense of attacking civilian objects and shall be
subject to whatever punishment the commission may direct.
``(4) Attacking Protected Property.--Any person who
intentionally engages in an attack upon protected property
shall be guilty of the offense of attacking protected
property and shall be subject to whatever punishment the
commission may direct.
``(5) Pillaging.--Any person who intentionally and in the
absence of military necessity appropriates or seizes property
for private or personal use, without the consent of a person
with authority to permit such appropriation or seizure, shall
be guilty of the offense of pillaging and shall be subject to
whatever punishment the commission may direct.
``(6) Denying quarter.--Any person who, with effective
command or control over subordinate groups, declares, orders,
or otherwise indicates to those forces that there shall be no
survivors or surrender accepted, with the intent therefore to
threaten an adversary or to conduct hostilities such that
there would be no survivors or surrender accepted, shall be
guilty of denying quarter and shall be subject to whatever
punishment the commission may direct.
``(7) Taking hostages.--Any person who, having knowingly
seized or detained one or more persons, threatens to kill,
injure, or continue to detain such person or persons with the
intent of compelling any nation, person other than the
hostage, or group of persons to act or refrain from acting as
an explicit or implicit condition for the safety or release
of such person or persons, shall be guilty of the offense of
taking hostages and shall be subject to whatever punishment
the commission may direct, including, if death results to one
or more of the victims, the penalty of death.
``(8) Employing poison or analogous weapons.--Any person
who intentionally, as a method of warfare, employs a
substance or a weapon that releases a substance that causes
death or serious and lasting damage to health in the ordinary
course of events, through its asphyxiating, bacteriological,
or toxic properties, shall be guilty of employing poison or
analogous weapons and shall be subject to whatever punishment
the commission may direct, including, if death results to one
or more of the victims, the penalty of death.
``(9) Using protected persons as shields.--Any person who
positions, or otherwise takes advantage of, a protected
person with the intent to shield a military objective from
attack or to shield, favor, or impede military operations,
shall be guilty of the offense of using protected persons as
shields and shall be subject to whatever punishment the
commission may direct, including, if death results to one or
more of the victims, the penalty of death.
[[Page S9121]]
``(10) Using protected property as shields.--Any person who
positions, or otherwise takes advantage of the location of,
protected property under the law of war with the intent to
shield a military objective from attack or to shield, favor,
or impede military operations, shall be guilty of the offense
of using protected property as shields and shall be subject
to whatever punishment the commission may direct.
``(11) Torture.--Any person who commits an act specifically
intended to inflict severe physical or mental pain or
suffering (other than pain or suffering incidental to lawful
sanctions) upon another person within his custody or physical
control for the purpose of obtaining information or a
confession, punishment, intimidation, coercion, or any reason
based on discrimination of any kind, shall be guilty of
torture and subject to whatever punishment the commission may
direct, including, if death results to one or more of the
victims, the penalty of death. `Severe mental pain or
suffering' has the meaning provided in 18 U.S.C. 2340(2).
``(12) Cruel or inhuman treatment.--Any person who commits
an act intended to inflict severe physical or mental pain or
suffering (other than pain or suffering incidental to lawful
sanctions), including severe physical abuse, upon another
person within his custody or physical control shall be guilty
of cruel or inhuman treatment and subject to whatever
punishment the commission may direct, including, if death
results to one or more of the victims, the penalty of death.
`Severe mental pain or suffering' has the meaning provided in
18 U.S.C. 2340(2).
``(13) Intentionally causing serious bodily injury.--Any
person who intentionally causes serious bodily injury to one
or more persons, including lawful combatants, in violation of
the law of war shall be guilty of the offense of causing
serious bodily injury and shall be subject to whatever
punishment the commission may direct, including, if death
results to one or more of the victims, the penalty of death.
`Serious bodily injury' has the meaning provided in 18 U.S.C.
113(b)(2).
``(14) Mutilating or maiming.--Any person who intentionally
injures one or more protected persons, by disfiguring the
person or persons by any mutilation thereof or by permanently
disabling any member, limb, or organ of his body, without any
legitimate medical or dental purpose, shall be guilty of the
offense of mutilation or maiming and shall be subject to
whatever punishment the commission may direct, including, if
death results to one or more of the victims, the penalty of
death.
``(15) Murder in violation of the law of war.--Any person
who intentionally kills one or more persons, including lawful
combatants, in violation of the law of war shall be guilty of
the offense of murder in violation of the law of war and
shall be subject to whatever punishment the commission may
direct, including the penalty of death.
``(16) Destruction of property in violation of the law of
war.--Any person who intentionally destroys property
belonging to another person in violation of the law of war
shall be guilty of the offense of destruction of property in
violation of the law of war and shall be subject to whatever
punishment the commission may direct.
``(17) Using treachery or perfidy.--Any person who, after
inviting the confidence or belief of one or more persons that
they were entitled to, or obliged to accord, protection
under the law of war, intentionally makes use of that
confidence or belief in killing, injuring, or capturing
such person or persons, shall be guilty of using treachery
or perfidy and shall be subject to whatever punishment the
commission may direct.
``(18) Improperly Using a Flag of Truce.--Any person who
uses a flag of truce to feign an intention to negotiate,
surrender, or otherwise to suspend hostilities when there is
no such intention, shall be guilty of improperly using a flag
of truce and shall be subject to whatever punishment the
commission may direct.
``(19) Improperly Using a Distinctive Emblem.--Any person
who intentilly uses a distinctive emblem recognized by the
law of war for combatant purposes in a manner prohibited by
the law of waf shall be guilty of improperly using a
distinctive emblem and shall be subject to whatever
punishment the commission may direct.
(20) Potentionally Mistreating a Dead Body.--Any person who
intentionally mistreats the body of a dead person, without
justification by legitimate military necessary, shall be
guilty of the offense of mistreating a dead body and shall be
subject to whatever punishment the commission may direct.
(21) Rape.--Any person who forcibly or with coercion or
threat of force wrongfully invades the body of a person by
penetrating, however slightly, the anal or genital opening of
the victim with any part of the body of the accused or with
any foreign object shall be guilty of the offense of rape and
shall be subject to whatever punishment the commission may
direct.
``(22) Hijacking or Hazarding a Vessel or Aircraft.--Any
person subject to this chapter who intentionally seizes,
exercises unauthorized control over, or endangers the safe
navigation of, a vessel or aircraft that was not a legitimate
military target is guilty of the offense of hijacking or
hazarding a vessel or aircraft and shall be subject to
whatever punishment the commission may direct, including, if
death results to one or more of the victims, the penalty of
death.
``(23) Terrorism.--Any person subject to this chapter who
intentionally kills or inflicts great bodily harm on one or
more persons, or intentionally engages in an act that evinces
a wanton disregard for human life, in a manner calculated to
influence or affect the conduct of government or civilian
population by intimidation or coercion, or to retaliate
against government conduct, shall be guilty of the offense of
terrorism and shall be subject to whatever punishment the
commission may direct, including, if death results to one or
more of the victims, penalty of death.
``(24) Providing Material Support for Terrorism.--Any
person who provides material support or resources, knowing or
intending that they are to be used in preparation for, or in
carrying out, an act of terrorism (as defined in subsection
(b)(23) of this section), or who intentionally provides
material support or resources to an international terrorist
organization engage in hostilities against the United States,
knowing that such organization has engaged or engages in
terrorism as defined in subsection (b)(23) of this section),
shall be guilty of the offense of providing material support
for terrorism and shall be subject to whatever punishment the
commission may direct. The term `material support or
resources' has the meaning provided in 18 U.S.C. 2339A(b).
``(25) Wrongfully aiding the enemy.--Any person who, in
breach of an allegiance or duty to the United States,
knowingly and intentionally aids an enemy of the United
States or one its cobelligerents shall be guilty of the
offense of wrongfully aiding the enemy and shall be subject
to whatever phmthe commission may direct.
``(26) Spying.--Any person who, with intent or reason to
believe that it is to be used to the injury of the United
States or to the advantage of a foreign-power, collects or
attempts to collect certain information by clandestine means
or while acting under false pretenses, for the purpose of
conveying such information to an enemy of the United States
or one of its co-belligerents, shall be guilty of the offense
of spying and shall be subject to whatever punishment the
commission may direct, including the penalty of death.
``(27) Conspiracy.--Any person who conspires to commit one
or more substantive offenses triable under this section, and
who knowingly does any overt act to effect the object of the
conspiracy, shall be guilty of conspiracy and shall be
subject to whatever punishment the commission may direct,
including, if death results to one or more of the victims,
the penalty of death.
``Sec. 950w. Perjury and obstruction of justice
``The military commissions also may try offenses and impose
punishments for perjury, false testimony, or obstruction of
justice related to military commissions.
``Sec. 950x. Contempt
``A military commission may punish for contempt any person
who uses any menacing word, sign, or gesture in its presence,
or who disturbs its proceedings by any riot or disorder.''.
(2) Tables of chapters amendments.--The 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 COMMISIONS
``SUBCHAPTER I--GENERAL PROVISIONS
``SUBCHAPTER II--COMPOSITION OF COURTS-MARTIAL
``SUBCHAPTER III--PRE-TRIAL PROCEDURE
``SUBCHAPTER IV--TRIAL PROCEDURE
``SUBCHAPTER V--SENTENCES
``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY
COMMISSIONS
``SUBCHAPTER VII--PUNITIVE MATTERS
(b) Submittal of Procedures to Congress.--
(1) Submittal of procedures.--Not later than 90 days after
the date of the enactment of this Act, the Secretary shall
submit to the Committees on Armed Forces of the Senate and
the House of Representatives a report setting forth the
procedures for military commissions prescribed under Chapter
47A of title 10, United States Code (as added by subsection
(a)).
(2) Submittal of modifications.--Not later than 60 days
before the date on which any proposed modification of the
procedures described in paragraph (1) shall go into effect,
the Secretary shall submit to the committees of Congress
referred to in that paragraph a report describing such
modifications.
SEC. 5. JUDICIAL REVIEW.
Section 2241 of title 28, United States Code, is amended by
replacing subsection (e) with the following:
``(e) Except as provided for in this subsection, and
notwithstanding any other law, no court, justice, or judge
shall have jurisdiction to hear or consider any claim or
cause of action, including an application for a writ of
habeas corpus, pending on or filed after the date of
enactment of this Act, against the United States or its
agents, brought by or on behalf of any alien detained by the
United States as an unlawful enemy combatant, relating to any
aspect of the alien's detention, transfer, treatment, or
conditions of confinement:
``(1) Combatant status review tribunals. 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
[[Page S9122]]
Review Tribunal. The scope of such review is defined in
section 1005(e)(2) of the Detainee Treatment Act of 2005. If
the Court grants a detainee's petition for review, the
Department of Defense may conduct a new Combatant Status
Review Tribunal.
``(2) Military commissions.--Review shall be had only of
final judgments of military commissions as provided for
pursuant to section 247 of the Military Commissions Act of
2006.
``(3) Information considered.--The court may consider
classified information submitted in camera and ex parte in
making any determination under this section.''.
SEC. 6. SATISFACTION OF TREATY OBLIGATIONS.
(a) In general.--Satisfaction of the prohibitions against
cruel, inhuman, and degrading treatment set forth in Section
1003 of the Detainee Treatment Act of 2005 (title X of Public
Law 109-148; 119 Stat. 2739; 42 U.S.C. 2000dd) shall fully
satisfy United States obligations with respect to the
standards for detention and treatment established by
section 1 of common Article 3 of the Geneva Conventions,
with the exception of the obligations imposed by
subsections 1 (b) and 1 (d) of such Article.
(b) Rights Not Judicially Enforceable.--
(1) In general. No person in any habeas action or any
other action may invoke the Geneva Conventions or any
protocols thereto as a source of rights; whether directly or
indirectly, for any purpose in any court of the United States
or its States or territories.
(2) Construction.--Paragraph (1) may not be construed to
affect the obligations of the United States under the Geneva
Conventions.
(c) Geneva Conventions Defined. In this section, the term
``Geneva Conventions'' means the international conventions
signed at Geneva on August 12, 1949, including common Article
3.
SEC. 7. WAR CRIMES ACT AMENDMENT.
Section 2441 of title 18, United States Code is amended by
replacing subsection (c)(3) with the following:
``(3) which constitutes any of the following serious
violations of common Article 3 of the international
conventions signed at Geneva 12 August 1949, when committed
in the context of and in association with an armed conflict
not of an international character--
``(1) Torture.--Any person who commits, or conspires or
attempts to commit, an act specifically intended to inflict
severe physical or mental pain or suffering (other than pain
or suffering incidental to lawful sanctions) upon another
person within his custody or physical control for the purpose
of obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination
of any kind, shall be guilty of a violation of this
subsection. `Severe mental pain or suffering' has the meaning
provided in 18 U.S.C. Sec. 2340(2).
``(2) Cruel or inhuman treatment.--Any person who commits,
or conspires or attempts to commit, an act intended to
inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions),
including severe physical abuse, upon another person within
his custody or physical control shall be guilty of a
violation of this subsection. `Severe mental pain or
suffering' has the meaning provided in 18 U.S.C.
Sec. 2340(2).
``(3) Performing biological experiments.--Any person who
subjects, or conspires or attempts to subject, one or more
persons within his custody or physical control to biological
experiments without a legitimate medical purpose and in so
doing endangers the body or health of such person or persons
shall be guilty of a violation of this subsection
``(4) Murder.--Any person who intentionally kills, or
conspires or attempts to kill, or kills whether intentionally
or unintentionally in the course of committing any other
offense under this section, one or more persons taking no
active part in the hostilities, including those placed hors
de combat by sickness, wounds, detention, or any other cause,
shall be guilty of a violation of this subsection. The intent
required for this offense precludes its applicability with
regard to collateral damage or to death, damage, or injury
incident to a lawful attack.
``(5) Mutilation or maiming.--Any person who intentionally
injures, or conspires or attempts to injure, or injures
whether intentionally or unintentionally in the course of
committing any other offense under this section, one or more
persons taking no active part in the hostilities, including
those placed hors de combat by sickness, wounds, detention,
or any other cause, by disfiguring the person or persons by
any mutilation thereof or by permanently disabling any
member, limb, or organ of his body, without any legitimate
medical or dental purpose, shall be guilty of a violation of
this subsection. The intent required for this offense
precludes its applicability with regard to collateral damage
or to death, damage, or injury incident to a lawful attack.
``(6) Intentionally causing great suffering or serious
injury.--Any person who intentionally causes, or conspires or
attempts to cause, serious, bodily injury to one or more
persons taking no active part in the hostilities, including
those placed hors de combat by sickness, wounds, detention,
or any other cause, shall be guilty of a violation of this
subsection. The intent required for this offense precludes
its applicability with regard to collateral damage or to
death, damage, or injury incident to a lawful attack.
`Serious bodily injury' has the meaning provided in 18 U.S.C.
Sec. 113(b)(2).
``(7) Rape.--Any person who forcibly or with coercion or
threat of force wrongfully invades, or conspires or attempts
to invade, the body of a person by penetrating, however
slightly, the anal or genital opening of the victim with any
part of the body of the accused or with any foreign object
shall be guilty of a violation of this subsection.
``(8) Sexual assault or abuse.--Any person who forcibly or
with coercion or threat of force engages, or conspires or
attempts to engage, in sexual contact with one or more
persons, or causes, or conspires or attempts to cause, one or
more persons to engage in sexual contact, shall be guilty of
a violation of this subsection. For purposes of this offense,
`sexual contact' has the meaning provided in 18 U.S.C.
Sec. 2246(3).
``(9) Taking hostages.--Any person who, having knowingly
seized or detained one or more persons, threatens to kill,
injure, or continue to detain such person or persons with the
intent of compelling any nation, person other than the
hostage, or group of persons to act or refrain from acting as
an explicit or implicit condition for the safety or release
of such person or persons, shall be guilty of a violation
of this subsection. Any person who attempts to engage or
conspires to engage in this offense shall also be guilty
under this subsection.''.
SEC. 8. CONFORMING AMENDMENTS.
(a) Section 1004(b) of the Detainee Treatment Act of 2005
(10 U.S.C. Sec. 801 note). is amended to conform with this
Act as follows--
(1) by replacing ``may provide'' with ``shall provide'';
and
(2) by adding ``or investigation'' after ``criminal
prosecution''; and
(3) by adding ``whether before United States courts or
agencies, foreign courts or agencies, or international courts
or agencies,'' after ``described in that subsection'';
(b) Section 1005 of the Detainee Treatment Act of 2005 (10
U.S.C. Sec. 801 note) is amended to conform with this Act as
follows--
(1) by striking subsection (e)(3)(B) and renumbering
subsections (e)(3)(C) and (e)(3)(D) as subsections (e)(3)(B)
and (e)(3)(C), respectively; and
(2) in subsection (e)(3)(A), by striking ``pursuant to
Military Commission Order No. 1, August 31, 2005 (or any
successor military order)'' and inserting ``by a military
commission under chapter 47a of title 10''; and
(3) in former subsection (e)(3)(C)(i), by striking
``pursuant to the military order'' and inserting ``by a
military commission''; and
(4) in former subsection (e)(3)(C)(ii), by striking
``pursuant to such military order'' and inserting ``by such a
military commission''; and
(5) in former subsection (e)(3)(D)(i) by striking
``specified in the military order'' and inserting ``specified
for a military commission''; and
(6) and in former subsection (e)(3)(C)(i), by striking ``at
Guantanamo Bay, Cuba''; and
(7) in former subsection (e)(2)(b)(i) by replacing ``the
Department of Defense at Guantanamo Bay, Cuba'' with ``United
States''.
(c) Section 802 of title 10, United States Code, is amended
to conform with this Act by adding, ``(a)(13) Lawful enemy
combatants who violate the law of war.''
(d) Section 821 of title 10, United States Code, is amended
to conform with this Act by striking the phrase ``by statute
or the law of war''.
(e) Section 836 of title 10, United States Code, is amended
to conform with this Act as follows--in subsection (a), by
replacing ``military commissions and other military
tribunals'' with ``and other military tribunals (excluding
military commissions)''.
SEC. 9. RETROACTIVE APPLICATION.
This Act shall take effect on the date of the enactment of
this Act and shall apply retroactively, including to any
aspect of the detention, treatment, or trial of any person
detained at any time since September 11, 2001, and to any
claim or cause of action pending on or after the date of the
enactment of this Act.
SEC. 10. SEVERABILITY.
If any provision of this Act, or the application of a
provision to any person or circumstance, is held to be
unconstitutional, the remainder of this Act, and the
application of the provisions to any other person or
circumstance, shall not be affected thereby.
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