Congressional Record: September 22, 2006 (Senate)
Page S10017-S10033




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. McCONNELL (for himself and Mr. Frist):
  S. 3929. A bill to authorize military commissions to bring terrorists
to justice, to strengthen and modernize terrorist surveillance
capabilities, and for other purposes; read the first time.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the text
of the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

                                S. 3929

       Be it enacted by the Senate and House of Representatives of
     the United States of America in Congress assembled,

                     TITLE I--MILITARY COMMISSIONS

     SECTION 101. SHORT TITLE.

       This title may be cited as the ``Military Commissions Act
     of 2006''.

     SEC. 102. FINDINGS.

       Congress makes the following findings:
       (1) The Constitution of the United States grants to
     Congress the power ``To define and punish . . . Offenses
     against the Law of Nations'', as well as the power ``To
     declare War . . . To raise and support Armies . . . [and] To
     provide and maintain a Navy''.
       (2) The military commission is the traditional tribunal for
     the trial of persons engaged in hostilities for violations of
     the law of war.
       (3) Congress has, in the past, both authorized the use of
     military commission by statute and recognized the existence
     and authority of military commissions.
       (4) Military commissions have been convened both by the
     President and by military commanders in the field to try
     offenses against the law of war.
       (5) It is in the national interest for Congress to exercise
     its authority under the Constitution to enact legislation
     authorizing and regulating the use of military commissions to
     try and punish violations of the law of war.

     SEC. 103. AUTHORIZATION FOR MILITARY COMMISSIONS.

       (a) In General.--The President is authorized to establish
     military commissions for the trial of alien unlawful enemy
     combatants engaged in hostilities against the United States
     for violations of the law of war and other offenses
     specifically made triable by military commission as provided
     in chapter 47 of title 10, United States Code, and chapter
     47A of title 10, United States Code (as enacted by this Act).
       (b) Construction.--The authority in subsection (a) may not
     be construed to alter or limit the authority of the President
     under the Constitution and laws of the United States to
     establish military commissions for areas declared to be under
     martial law or in occupied territories should circumstances
     so require.
       (c) Scope of Punishment Authority.--A military commission
     established pursuant to subsection (a) shall have authority
     to impose upon any person found guilty under a proceeding
     under chapter 47A of title 10, United States Code (as so
     enacted), a sentence that is appropriate for the offense or
     offenses for which there is a finding of guilt, including a
     sentence of death if authorized under such chapter,
     imprisonment for life or a term of years, payment of a fine
     or restitution, or such other lawful punishment or condition
     of punishment as the military commission shall direct.
       (d) Execution of Punishment.--The Secretary of Defense is
     authorized to carry out a sentence of punishment imposed by a
     military commission established pursuant to subsection (a) in
     accordance with such procedures as the Secretary may
     prescribe.
       (e) Annual Report on Trials by Military Commissions.--
       (1) Annual report required.--Not later than December 31
     each year, the Secretary of Defense shall submit to the
     Committees on Armed Services of the Senate and the House of
     Representatives a report on any trials conducted by military
     commissions established pursuant to subsection (a) during
     such year.
       (2) Form.--Each report under this subsection shall be
     submitted in unclassified form, but may include a classified
     annex.

     SEC. 104. MILITARY COMMISSIONS.

       (a) Military Commissions.--
       (1) In general.--Subtitle A of title 10, United States
     Code, is amended by inserting after chapter 47 the following
     new chapter:

                  ``CHAPTER 47A--MILITARY COMMISSIONS

``SUBCHAPTER......................................................Sec.
``I. General Provisions..........................................948a.
``II. Composition of Military Commissions........................948h.
``III. Pre-Trial Procedure.......................................948q.
``IV. Trial Procedure............................................949a.
``V. Sentences...................................................949s.
``VI. Post-Trial Procedure and Review of Military Commissions....950a.
``VII. Punitive Matters..........................................950aa.

                   ``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) Lawful enemy combatant.--The term `lawful enemy
     combatant' means an individual who is--
       ``(A) a member of the regular forces of a State party
     engaged in hostilities against the United States;
       ``(B) a member of a militia, volunteer corps, or organized
     resistance movement belonging to a State party engaged in
     such hostilities, which are under responsible command, wear a
     fixed distinctive sign recognizable at a distance, carry
     their arms openly, and abide by the law of war; or
       ``(C) a member of a regular armed force who professes
     allegiance to a government engaged in such hostilities, but
     not recognized by the United States.
       ``(4) Unlawful enemy combatant.--The term `unlawful enemy
     combatant' means an individual engaged in hostilities against
     the United States who is not a lawful enemy combatant.

     ``Sec. 948b. Military commissions generally

       ``(a) Purpose.--This chapter establishes procedures
     governing the use of military commissions to try alien
     unlawful enemy combatants engaged in hostilities against the
     United States for violations of the law of war and other
     offenses triable by military commission.
       ``(b) Construction of Provisions.--The procedures for
     military commissions set forth in this chapter are based upon
     the procedures for trial by general courts-martial under
     chapter 47 of this title (the Uniform Code of Military
     Justice). Chapter 47 of this title does not, by its terms,
     apply to trial by military commission except as specifically
     provided therein or in this chapter, and many of the
     provisions of chapter 47 of this title are by their terms
     inapplicable to military commissions. The judicial
     construction and application of chapter 47 of this title is
     therefore not binding on military commissions established
     under this chapter.
       ``(c) Inapplicability of Certain Provisions.--(1) The
     following provisions of this title shall not apply to trial
     by military commission under this chapter:
       ``(A) Section 810 (article 10 of the Uniform Code of
     Military Justice), relating to speedy trial, including any
     rule of courts-martial relating to speedy trial.
       ``(B) Sections 831(a), (b), and (d) (articles 31(a), (b),
     and (d) of the Uniform Code of Military Justice), relating to
     compulsory self-incrimination.
       ``(C) Section 832 (article 32 of the Uniform Code of
     Military Justice), relating to pretrial investigation.
       ``(2) Other provisions of chapter 47 of this title shall
     apply to trial by military commission under this chapter only
     to the extent provided by the terms of such provisions or by
     this chapter.
       ``(d) Status of Military Commissions Under Common Article
     3.--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.
       ``(e) Treatment of Rulings and Precedents.--The findings,
     holdings, interpretations, and other precedents of military
     commissions under this chapter may not be introduced or
     considered in any hearing, trial, or other proceeding of a
     court-martial convened under chapter 47 of this title. The
     findings, holdings, interpretations, and other

[[Page S10018]]

     precedents of military commissions under this chapter may not
     form the basis of any holding, decision, or other
     determination of a court-martial convened under that chapter.
       ``(f) Geneva Conventions Not Establishing Source of
     Rights.--No alien enemy unlawful combatant subject to trial
     by military commission under this chapter may invoke the
     Geneva Conventions as a source of rights at his trial by
     military commission.

     ``Sec. 948c. Persons subject to military commissions

       ``Any alien unlawful enemy combatant engaged in hostilities
     or having supported hostilities against the United States is
     subject to trial by military commission as set forth in this
     chapter.

     ``Sec. 948d. Jurisdiction of military commissions

       ``(a) Jurisdiction.--A military commission under this
     chapter shall have jurisdiction to try any offense made
     punishable by this chapter, sections 904 and 906 of this
     title (articles 104 and 106 of the Uniform Code of Military
     Justice), or the law of war when committed by an alien
     unlawful enemy combatant before, on, or after September 11,
     2001.
       ``(b) Lawful Enemy Combatants.--Military commissions under
     this chapter shall not have jurisdiction over lawful enemy
     combatants. Lawful enemy combatants who violate the law of
     war are subject to chapter 47 of this title. Courts-martial
     established under that chapter shall have jurisdiction to try
     a lawful enemy combatant for any offense made punishable
     under this chapter.
       ``(c) Punishments.--A miliary commission under this chapter
     may, under such limitations as the President may prescribe,
     adjudge any punishment not forbidden by this chapter,
     including the penalty of death when authorized under this
     chapter, chapter 47 of this title, or the law of war.

          ``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS

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

     ``Sec. 948h. Who may convene military commissions

       ``Military commissions under this chapter may be convened
     by the Secretary of Defense or by any officer or official of
     the United States designated by the Secretary for that
     purpose.

     ``Sec. 948i. Who may serve on military commissions

       ``(a) In General.--Any commissioned officer of the armed
     forces on active duty is eligible to serve on a military
     commission under this chapter, including commissioned
     officers of the reserve components of the armed forces on
     active duty, commissioned officers of the National Guard on
     active duty in Federal service, or retired commissioned
     officers recalled to active duty.
       ``(b) Detail of Members.--When convening a military
     commission under this chapter, the convening authority shall
     detail as members thereof such members of the armed forces
     eligible under subsection (a) who, as in the opinion of the
     convening authority, are best qualified for the duty by
     reason of age, education, training, experience, length of
     service, and judicial temperament. No member of an armed
     force is eligible to serve as a member of a military
     commission when such member is the accuser or a witness for
     the prosecution or has acted as an investigator or counsel in
     the same case.
       ``(c) Excuse of Members.--Before a military commission
     under this chapter is assembled for the trial of a case, the
     convening authority may excuse a member from participating in
     the case.

     ``Sec. 948j. Military judge of a military commission

       ``(a) Detail of Military Judge.--A military judge shall be
     detailed to each military commission under this chapter. The
     Secretary of Defense shall prescribe regulations providing
     for the manner in which military judges are so detailed to
     military commissions. The military judge shall preside over
     each military commission to which he has been detailed.
       ``(b) 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 under section 826 of this title (article
     26 of the Uniform Code of Military Justice) as a military
     judge in general courts-martial by the Judge Advocate General
     of the armed force of which such military judge is a member.
       ``(c) Ineligibility of Certain Individuals.--No person is
     eligible to act as military judge in a case of a military
     commission under this chapter if he is the accuser or a
     witness or has acted as investigator or a counsel in the same
     case.
       ``(d) Consultation With Members; Ineligibility to Vote.--A
     military judge detailed to a military commission under this
     chapter may not consult with the members except in the
     presence of the accused (except as otherwise provided in
     section 949d of this title), trial counsel, and defense
     counsel, nor may he vote with the members.
       ``(e) Other Duties.--A commissioned officer who is
     certified to be qualified for duty as a military judge of a
     military commission under this chapter may perform such other
     duties as are assigned to him by or with the approval of the
     Judge Advocate General of the armed force of which such
     officer is a member or the designee of such Judge Advocate
     General.
       ``(f) Prohibition on Evaluation of Fitness by Convening
     Authority.--The convening authority of a military commission
     under this chapter shall not prepare or review any report
     concerning the effectiveness, fitness, or efficiency of a
     military judge detailed to the military commission which
     relates to his performance of duty as a military judge on the
     military commission.

     ``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 military
     commission under this chapter.
       ``(2) Assistant trial counsel and assistant and associate
     defense counsel may be detailed for a military commission
     under this chapter.
       ``(3) Military defense counsel for a military commission
     under this chapter shall be detailed as soon as practicable
     after the swearing of charges.
       ``(4) The Secretary of Defense shall prescribe regulations
     providing for the manner in which trial counsel and military
     defense counsel are detailed for military commissions under
     this chapter and for the persons who are authorized to detail
     such counsel for such military commissions.
       ``(b) Trial Counsel.--Subject to subsection (e), trial
     counsel detailed for a military commission under this chapter
     must be--
       ``(1) a judge advocate (as that term is defined in section
     801 of this title (article 1 of the Uniform Code of Military
     Justice)) who is--
       ``(A) a graduate of an accredited law school or is a member
     of the bar of a Federal court or of the highest court of a
     State; and
       ``(B) certified as competent to perform duties as trial
     counsel before general courts-martial by the Judge Advocate
     General of the armed force of which he is a member; or
       ``(2) a civilian who is--
       ``(A) a member of the bar of a Federal court or of the
     highest court of a State; and
       ``(B) otherwise qualified to practice before the military
     commission pursuant to regulations prescribed by the
     Secretary of Defense.
       ``(c) Military Defense Counsel.--Subject to subsection (e),
     military defense counsel detailed for a military commission
     under this chapter must be a judge advocate (as so defined)
     who is--
       ``(1) a graduate of an accredited law school or is a member
     of the bar of a Federal court or of the highest court of a
     State; and
       ``(2) certified as competent to perform duties as defense
     counsel before general courts-martial by the Judge Advocate
     General of the armed force of which he is a member.
       ``(d) Chief Prosecutor; Chief Defense Counsel.--(1) The
     Chief Prosecutor in a military commission under this chapter
     shall meet the requirements set forth in subsection (b)(1).
       ``(2) The Chief Defense Counsel in a military commission
     under this chapter shall meet the requirements set forth in
     subsection (c)(1).
       ``(e) Ineligibility of Certain Individuals.--No person who
     has acted as an investigator, military judge, or member of a
     military commission under this chapter in any case may act
     later as trial counsel or military defense counsel in the
     same case. No person who has acted for the prosecution before
     a military commission under this chapter may act later in the
     same case for the defense, nor may any person who has acted
     for the defense before a military commission under this
     chapter act later in the same case for the prosecution.

     ``Sec. 948l. Detail or employment of reporters and
       interpreters

       ``(a) Court Reporters.--Under such regulations as the
     Secretary of Defense may prescribe, the convening authority
     of a military commission under this chapter shall detail to
     or employ for the military commission qualified court
     reporters, who shall prepare a verbatim record of the
     proceedings of and testimony taken before the military
     commission.
       ``(b) Interpreters.--Under such regulations as the
     Secretary of Defense may prescribe, the convening authority
     of a military commission under this chapter may detail to or
     employ for the military commission interpreters who shall
     interpret for the military commission, and, as necessary, for
     trial counsel and defense counsel for the military
     commission, and for the accused.
       ``(c) Transcript; Record.--The transcript of a military
     commission under this chapter shall be under the control of
     the convening authority of the military commission, who shall
     also be responsible for preparing the record of the
     proceedings of the military commission.

     ``Sec. 948m. Number of members; excuse of members; absent and
       additional members

       ``(a) Number of Members.--(1) A military commission under
     this chapter shall, except as provided in paragraph (2), have
     at least five members.

[[Page S10019]]

       ``(2) In a case in which the accused before a military
     commission under this chapter may be sentenced to a penalty
     of death, the military commission shall have the number of
     members prescribed by section 949m(c) of this title.
       ``(b) Excuse of Members.--No member of a military
     commission under this chapter may be absent or excused after
     the military commission has been assembled for the trial of a
     case unless excused--
       ``(1) as a result of challenge;
       ``(2) by the military judge for physical disability or
     other good cause; or
       ``(3) by order of the convening authority for good cause.
       ``(c) Absent and Additional Members.--Whenever a military
     commission under this chapter is reduced below the number of
     members required by subsection (a), the trial may not proceed
     unless the convening authority details new members sufficient
     to provide not less than such number. The trial may proceed
     with the new members present after the recorded evidence
     previously introduced before the members has been read to the
     military commission in the presence of the military judge,
     the accused (except as provided in section 949d of this
     title), and counsel for both sides.

                 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

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

     ``Sec. 948q. Charges and specifications

       ``(a) Charges and Specifications.--Charges and
     specifications against an accused in a military commission
     under this chapter shall be signed by a person subject to
     chapter 47 of this title under oath before a commissioned
     officer of the armed forces authorized to administer oaths
     and shall state--
       ``(1) that the signer has personal knowledge of, or reason
     to believe, the matters set forth therein; and
       ``(2) that they are true in fact to the best of his
     knowledge and belief.
       ``(b) Notice to 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 or other methods of coercion

       ``(a) In General.--No person shall be required to testify
     against himself at a proceeding of a military commission
     under this chapter.
       ``(b) Statements Obtained by Torture.--A statement obtained
     by use of torture shall not be admissible in a military
     commission under this chapter, except against a person
     accused of torture as evidence the statement was made.
       ``(c) Statements Obtained Before Enactment of Detainee
     Treatment Act of 2005.--A statement obtained before December
     30, 2005 (the date of the enactment of the Detainee Treatment
     Act of 2005), in which the degree of coercion is disputed may
     be admitted only if the military judge finds that--
       ``(1) the totality of the circumstances renders it reliable
     and possessing sufficient probative value; and
       ``(2) the interests of justice would best be served by
     admission of the statement into evidence.
       ``(d) Statements Obtained After Enactment of Detainee
     Treatment Act of 2005.--A statement obtained on or after
     December 30, 2005 (the date of the enactment of the Detainee
     Treatment Act of 2005), in which the degree of coercion is
     disputed may be admitted only if the military judge finds
     that--
       ``(1) the totality of the circumstances renders it reliable
     and possessing sufficient probative value;
       ``(2) the interests of justice would best be served by
     admission of the statement into evidence; and
       ``(3) the interrogation methods used to obtain the
     statement do not violate the cruel, unusual, or inhumane
     treatment or punishment prohibited by the Fifth, Eighth, and
     14th Amendments to the United States Constitution.

     ``Sec. 948s. Service of charges

       ``The trial counsel assigned to a case before a military
     commission under this chapter shall cause to be served upon
     the accused and military defense counsel a copy of the
     charges upon which trial is to be had in English and, if
     appropriate, in another language that the accused
     understands, sufficiently in advance of trial to prepare a
     defense.

                    ``SUBCHAPTER IV--TRIAL PROCEDURE

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

     ``Sec. 949a. Rules

       ``(a) Procedures and Rules of Evidence.--Pretrial, trial,
     and post-trial procedures, including elements and modes of
     proof, for cases triable by military commission under this
     chapter may be prescribed by the Secretary of Defense. Such
     procedures may not be contrary to or inconsistent with this
     chapter. Except as otherwise provided in this chapter or
     chapter 47 of this title, the procedures and rules of
     evidence applicable in trials by general courts-martial of
     the United States shall apply in trials by military
     commission under this chapter.
       ``(b) Exceptions.--(1) The Secretary of Defense, in
     consultation with the Attorney General, may make such
     exceptions in the applicability in trials by military
     commission under this chapter from the procedures and rules
     of evidence otherwise applicable in general courts-martial as
     may be required by the unique circumstances of the conduct of
     military and intelligence operations during hostilities or by
     other practical need.
       ``(2) Notwithstanding any exceptions authorized by
     paragraph (1), the procedures and rules of evidence in trials
     by military commission under this chapter shall include, at a
     minimum, the following rights:
       ``(A) To examine and respond to all evidence considered by
     the military commission on the issue of guilt or innocence
     and for sentencing.
       ``(B) To be present at all sessions of the military
     commission (other than those for deliberations or voting),
     except when excluded under section 949d of this title.
       ``(C) To the assistance of counsel.
       ``(D) To self-representation, if the accused knowingly and
     competently waives the assistance of counsel, subject to the
     provisions of paragraph (4).
       ``(E) To the suppression of evidence that is not reliable
     or probative.
       ``(F) To the suppression of evidence the probative value of
     which is substantially outweighed by--
       ``(i) the danger of unfair prejudice, confusion of the
     issues, or misleading the members; or
       ``(ii) considerations of undue delay, waste of time, or
     needless presentation of cumulative evidence.
       ``(3) In making exceptions in the applicability in trials
     by military commission under this chapter from the procedures
     and rules otherwise applicable in general courts-martial, the
     Secretary of Defense may provide the following:
       ``(A) Evidence seized outside the United States shall not
     be excluded from trial by military commission on the grounds
     that the evidence was not seized pursuant to a search warrant
     or authorization.
       ``(B) A statement of the accused that is otherwise
     admissible shall not be excluded from trial by military
     commission on grounds of alleged coercion or compulsory self-
     incrimination so long as the evidence complies with the
     provisions of section 948r of this title.
       ``(C) Evidence shall be admitted as authentic so long as--
       ``(i) the military judge of the military commission
     determines that there is sufficient evidence that the
     evidence is what it is claimed to be; and
       ``(ii) the military judge instructs the members that they
     may consider any issue as to authentication or identification
     of evidence in determining the weight, if any, to be given to
     the evidence.
       ``(D)(i) Except as provided in clause (ii), hearsay
     evidence not otherwise admissible under the rules of evidence
     applicable in trial by general courts-martial may be admitted
     in a trial by military commission if the proponent of the
     evidence makes known to the adverse party, sufficiently in
     advance to provide the adverse party with a fair opportunity
     to meet the evidence, the intention of the proponent to offer
     the evidence, and the particulars of the evidence (including
     information on the general circumstances under which the
     evidence was obtained). The disclosure of evidence under this
     clause is subject to the requirements and limitations
     applicable to the disclosure of classified information in
     section 949j(b) of this title.
       ``(ii) Hearsay evidence not otherwise admissible under the
     rules of evidence applicable in trial by general courts-
     martial shall not be admitted in a trial by military
     commission if the party opposing the admission of the
     evidence demonstrates that the evidence is unreliable or
     lacking in probative value.
       ``(4)(A) The accused in a military commission under this
     chapter who exercises the right to self-representation under
     paragraph (2)(D) shall conform his deportment and the conduct
     of the defense to the rules of evidence, procedure, and
     decorum applicable to trials by military commission.
       ``(B) Failure of the accused to conform to the rules
     described in subparagraph (A) may result in a partial or
     total revocation by the military judge of the right of self-
     representation under paragraph (2)(D). In such case, the
     detailed defense counsel of the accused or an appropriately
     authorized civilian counsel shall perform the functions
     necessary for the defense.

[[Page S10020]]

       ``(c) Delegation of Authority to Prescribe Regulations.--
     The Secretary of Defense may delegate the authority of the
     Secretary to prescribe regulations under this chapter.

     ``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 military commission, or any member, military
     judge, or counsel thereof, with respect to the findings or
     sentence adjudged by the military commission, or with respect
     to any other exercises of its or their functions in the
     conduct of the proceedings.
       ``(2) No person may attempt to coerce or, by any
     unauthorized means, influence--
       ``(A) the action of a military commission under this
     chapter, or any member thereof, in reaching the findings or
     sentence in any case;
       ``(B) the action of any convening, approving, or reviewing
     authority with respect to their judicial acts; or
       ``(C) the exercise of professional judgment by trial
     counsel or defense counsel.
       ``(3) The provisions of this subsection shall not apply
     with respect to--
       ``(A) general instructional or informational courses in
     military justice if such courses are designed solely for the
     purpose of instructing members of a command in the
     substantive and procedural aspects of military commissions;
     or
       ``(B) statements and instructions given in open proceedings
     by a military judge or counsel.
       ``(b) Prohibition on Consideration of Actions on Commission
     in Evaluation of 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
     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 under this chapter shall prosecute in the name of
     the United States.
       ``(b) Defense Counsel.--(1) The accused shall be
     represented in his defense before a military commission under
     this chapter as provided in this subsection.
       ``(2) The accused shall be represented by military counsel
     detailed under section 948k of this title.
       ``(3) The accused may be represented by civilian counsel if
     retained by the accused, provided that such civilian
     counsel--
       ``(A) is a United States citizen;
       ``(B) is admitted to the practice of law in a State,
     district, or possession of the United States, or before a
     Federal court;
       ``(C) has not been the subject of any sanction of
     disciplinary action by any court, bar, or other competent
     governmental authority for relevant misconduct;
       ``(D) has been determined to be eligible for access to
     information classified at the level Secret or higher; and
       ``(E) has signed a written agreement to comply with all
     applicable regulations or instructions for counsel, including
     any rules of court for conduct during the proceedings.
       ``(4) If the accused is represented by civilian counsel,
     military counsel detailed shall act as associate counsel.
       ``(5) The accused is not entitled to be represented by more
     than one military counsel. However, the person authorized
     under regulations prescribed under section 948k of this title
     to detail counsel, in such person's sole discretion, may
     detail additional military counsel to represent the accused.
       ``(6) Defense counsel may cross-examine each witness for
     the prosecution who testifies before a military commission
     under this chapter.

     ``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 under this chapter, the
     military judge may call the military commission into session
     without the presence of the members for the purpose of--
       ``(A) hearing and determining motions raising defenses or
     objections which are capable of determination without trial
     of the issues raised by a plea of not guilty;
       ``(B) hearing and ruling upon any matter which may be ruled
     upon by the military judge under this chapter, whether or not
     the matter is appropriate for later consideration or decision
     by the members;
       ``(C) if permitted by regulations prescribed by the
     Secretary of Defense, receiving the pleas of the accused; and
       ``(D) performing any other procedural function which may be
     performed by the military judge under this chapter or under
     rules prescribed pursuant to section 949a of this title and
     which does not require the presence of the members.
       ``(2) Except as provided in subsections (b), (c), and (d),
     any proceedings under paragraph (1) shall be conducted in the
     presence of the accused, defense counsel, and trial counsel,
     and shall be made part of the record.
       ``(b) Deliberation or Vote of Members.--When the members of
     a military commission under this chapter deliberate or vote,
     only the members may be present.
       ``(c) Closure of Proceedings.--(1) The military judge may
     close to the public all or part of the proceedings of a
     military commission under this chapter.
       ``(2) The military judge may close to the public all or a
     portion of the proceedings under paragraph (1) only upon
     making a specific finding that such closure is necessary to--
       ``(A) protect information the disclosure of which could
     reasonably be expected to cause damage to the national
     security, including intelligence or law enforcement sources,
     methods, or activities; or
       ``(B) ensure the physical safety of individuals.
       ``(3) A finding under paragraph (2) may be based upon a
     presentation, including a presentation ex parte or in camera,
     by either trial counsel or defense counsel.
       ``(d) Exclusion of Accused From Certain Proceedings.--The
     military judge may exclude the accused from any portion of a
     proceeding upon a determination that, after being warned by
     the military judge, the accused persists in conduct that
     justifies exclusion from the courtroom--
       ``(1) to ensure the physical safety of individuals; or
       ``(2) to prevent disruption of the proceedings by the
     accused.
       ``(e) Protection of Classified Information.--
       ``(1) National security privilege.--(A) Classified
     information shall be protected and is privileged from
     disclosure if disclosure would be detrimental to the national
     security. This rule applies to all stages of the proceedings
     of military commissions under this chapter.
       ``(B) The privilege referred to in subparagraph (A) may be
     claimed by the head of the executive or military department
     or government agency concerned based on a finding by the head
     of that department or agency that--
       ``(i) the information is properly classified; and
       ``(ii) disclosure would be detrimental to the national
     security.
       ``(C) A person who may claim the privilege referred to in
     subparagraph (A) may authorize a representative, witness, or
     trial counsel to claim the privilege and make the finding
     described in subparagraph (B) on behalf of such person. The
     authority of the representative, witness, or trial counsel to
     do so is presumed in the absence of evidence to the contrary.
       ``(2) Introduction of classified information.--
       ``(A) Alternatives to disclosure.--To protect classified
     information from disclosure, the military judge, upon motion
     of trial counsel, shall authorize, to the extent
     practicable--
       ``(i) the deletion of specified items of classified
     information from documents to be introduced as evidence
     before the military commission;
       ``(ii) the substitution of a portion or summary of the
     information for such classified documents; or
       ``(iii) the substitution of a statement of relevant facts
     that the classified information would tend to prove.
       ``(B) Protection of sources, methods, or activities.--The
     military judge, upon motion of trial counsel, shall permit
     trial counsel to introduce otherwise admissible evidence
     before the military commission, while protecting from
     disclosure the sources, methods, or activities by which the
     United States acquired the evidence if the military judge
     finds that (i) the sources, methods, or activities by which
     the United States acquired the evidence are classified, and
     (ii) the evidence is reliable. The military judge may require
     trial counsel to present to the military commission and the
     defense, to the extent practicable and consistent with
     national security, an unclassified summary of the sources,
     methods, or activities by which the United States acquired
     the evidence.
       ``(C) Assertion of national security privilege at trial.--
     During the examination of any witness, trial counsel may
     object to any question, line of inquiry, or motion to admit
     evidence that would require the disclosure of classified
     information. Following such an objection, the military judge
     shall take suitable action to safeguard such classified
     information. Such action may include the review of trial
     counsel's claim of privilege by the military judge in camera
     and on an ex parte basis, and the delay of proceedings to
     permit trial counsel to consult with the department or agency
     concerned as to whether the national security privilege
     should be asserted.
       ``(3) Consideration of privilege and related materials.--A
     claim of privilege under this subsection, and any materials
     submitted in support thereof, shall, upon request of the
     Government, be considered by the military judge in camera and
     shall not be disclosed to the accused.
       ``(4) Additional regulations.--The Secretary of Defense may
     prescribe additional regulations, consistent with this
     subsection, for the use and protection of classified
     information during proceedings of military commissions under
     this chapter. A report on any regulations so prescribed, or
     modified, shall

[[Page S10021]]

     be submitted to the Committees on Armed Services of the
     Senate and the House of Representatives not later than 60
     days before the date on which such regulations or
     modifications, as the case may be, go into effect.

     ``Sec. 949e. Continuances

       ``The military judge in a military commission under this
     chapter may, for reasonable cause, grant a continuance to any
     party for such time, and as often, as may appear to be just.

     ``Sec. 949f. Challenges

       ``(a) Challenges Authorized.--The military judge and
     members of a military commission under this chapter may be
     challenged by the accused or trial counsel for cause stated
     to the military commission. The military judge shall
     determine the relevance and validity of challenges for cause,
     and may not receive a challenge to more than one person at a
     time. Challenges by trial counsel shall ordinarily be
     presented and decided before those by the accused are
     offered.
       ``(b) Peremptory Challenges.--The accused and trial counsel
     are each entitled to one peremptory challenge, but the
     military judge may not be challenged except for cause.
       ``(c) Challenges Against Additional Members.--Whenever
     additional members are detailed to a military commission
     under this chapter, and after any challenges for cause
     against such additional members are presented and decided,
     the accused and trial counsel are each entitled to one
     peremptory challenge against members not previously subject
     to peremptory challenge.

     ``Sec. 949g. Oaths

       ``(a) In General.--(1) Before performing their respective
     duties in a military commission under this chapter, military
     judges, members, trial counsel, defense counsel, reporters,
     and interpreters shall take an oath to perform their duties
     faithfully.
       ``(2) The form of the oath required by paragraph (1), the
     time and place of the taking thereof, the manner of recording
     thereof, and whether the oath shall be taken for all cases in
     which duties are to be performed or for a particular case,
     shall be as provided in regulations prescribed by the
     Secretary of Defense. The regulations may provide that--
       ``(A) an oath to perform faithfully duties as a military
     judge, trial counsel, or defense counsel may be taken at any
     time by any judge advocate or other person certified to be
     qualified or competent for the duty; and
       ``(B) if such an oath is taken, such oath need not again be
     taken at the time the judge advocate or other person is
     detailed to that duty.
       ``(b) Witnesses.--Each witness before a military commission
     under this chapter shall be examined on oath.
       ``(c) Oath Defined.--In this section, the term `oath'
     includes an affirmation.

     ``Sec. 949h. Former jeopardy

       ``(a) In General.--No person may, without his consent, be
     tried by a military commission under this chapter a second
     time for the same offense.
       ``(b) Scope of Trial.--No proceeding in which the accused
     has been found guilty by military commission under this
     chapter upon any charge or specification is a trial in the
     sense of this section until the finding of guilty has become
     final after review of the case has been fully completed.

     ``Sec. 949i. Pleas of the accused

       ``(a) Plea of Not Guilty.--If an accused in a military
     commission under this chapter after a plea of guilty sets up
     matter inconsistent with the plea, or if it appears that the
     accused has entered the plea of guilty through lack of
     understanding of its meaning and effect, or if the accused
     fails or refuses to plead, a plea of not guilty shall be
     entered in the record, and the military commission shall
     proceed as though the accused had pleaded not guilty.
       ``(b) Finding of Guilt After Guilty Plea.--With respect to
     any charge or specification to which a plea of guilty has
     been made by the accused in a military commission under this
     chapter and accepted by the military judge, a finding of
     guilty of the charge or specification may be entered
     immediately without a vote. The finding shall constitute the
     finding of the military commission unless the plea of guilty
     is withdrawn prior to announcement of the sentence, in which
     event the proceedings shall continue as though the accused
     had pleaded not guilty.

     ``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 as
     provided in regulations prescribed by the Secretary of
     Defense.
       ``(2) Process issued in military commissions under this
     chapter to compel witnesses to appear and testify and to
     compel the production of other evidence--
       ``(A) shall be similar to that which courts of the United
     States having criminal jurisdiction may lawfully issue; and
       ``(B) shall run to any place where the United States shall
     have jurisdiction thereof.
       ``(b) Protection of Classified Information.--(1) With
     respect to the discovery obligations of trial counsel under
     this section, the military judge, upon motion of trial
     counsel, shall authorize, to the extent practicable--
       ``(A) the deletion of specified items of classified
     information from documents to be made available to the
     accused;
       ``(B) the substitution of a portion or summary of the
     information for such classified documents; or
       ``(C) the substitution of a statement admitting relevant
     facts that the classified information would tend prove.
       ``(2) The military judge, upon motion of trial counsel,
     shall authorize trial counsel, in the course of complying
     with discovery obligations under this section, to protect
     from disclosure the sources, methods, or activities by which
     the United States acquired evidence if the military judge
     finds that the sources, methods, or activities by which the
     United States acquired such evidence are classified. The
     military judge may require trial counsel to provide, to the
     extent practicable, an unclassified summary of the sources,
     methods, or activities by which the United States acquired
     such evidence.
       ``(c) Exculpatory Evidence.--(1) As soon as practicable,
     trial counsel shall disclose to the defense the existence of
     any evidence known to trial counsel that reasonably tends to
     exculpate the accused. Where exculpatory evidence is
     classified, the accused shall be provided with an adequate
     substitute in accordance with the procedures under subsection
     (b).
       ``(2) In this subsection, the term `evidence known to trial
     counsel', in the case of exculpatory evidence, means
     exculpatory evidence that the prosecution would be required
     to disclose in a trial by courts-martial under chapter 47 of
     this title.

     ``Sec. 949k. Defense of lack of mental responsibility

       ``(a) Affirmative Defense.--It is an affirmative defense in
     a trial by military commission under this chapter that, at
     the time of the commission of the acts constituting the
     offense, the accused, as a result of a severe mental disease
     or defect, was unable to appreciate the nature and quality or
     the wrongfulness of the acts. Mental disease or defect does
     not otherwise constitute a defense.
       ``(b) Burden of Proof.--The accused in a military
     commission under this chapter has the burden of proving the
     defense of lack of mental responsibility by clear and
     convincing evidence.
       ``(c) Findings Following Assertion of Defense.--Whenever
     lack of mental responsibility of the accused with respect to
     an offense is properly at issue in a military commission
     under this chapter, the military judge shall instruct the
     members as to the defense of lack of mental responsibility
     under this section and shall charge the members to find the
     accused--
       ``(1) guilty;
       ``(2) not guilty; or
       ``(3) subject to subsection (d), not guilty by reason of
     lack of mental responsibility.
       ``(d) Majority Vote Required for Finding.--The accused
     shall be found not guilty by reason of lack of mental
     responsibility under subsection (c)(3) only if a majority of
     the members present at the time the vote is taken determines
     that the defense of lack of mental responsibility has been
     established.

     ``Sec. 949l. Voting and rulings

       ``(a) Vote by Secret Written Ballot.--Voting by members of
     a military commission under this chapter on the findings and
     on the sentence shall be by secret written ballot.
       ``(b) Rulings.--(1) The military judge in a military
     commission under this chapter shall rule upon all questions
     of law, including the admissibility of evidence and all
     interlocutory questions arising during the proceedings.
       ``(2) Any ruling made by the military judge upon a question
     of law or an interlocutory question (other than the factual
     issue of mental responsibility of the accused) is conclusive
     and constitutes the ruling of the military commission.
     However, a military judge may change his ruling at any time
     during the trial.
       ``(c) Instructions Prior to Vote.--Before a vote is taken
     of the findings of a military commission under this chapter,
     the military judge shall, in the presence of the accused and
     counsel, instruct the members as to the elements of the
     offense and charge the members--
       ``(1) that the accused must be presumed to be innocent
     until his guilt is established by legal and competent
     evidence beyond a reasonable doubt;
       ``(2) that in the case being considered, if there is a
     reasonable doubt as to the guilt of the accused, the doubt
     must be resolved in favor of the accused and he must be
     acquitted;
       ``(3) that, if there is reasonable doubt as to the degree
     of guilt, the finding must be in a lower degree as to which
     there is no reasonable doubt; and
       ``(4) that the burden of proof to establish the guilt of
     the accused beyond a reasonable doubt is upon the United
     States.

     ``Sec. 949m. Number of votes required

       ``(a) Conviction.--No person may be convicted by a military
     commission under this chapter of any offense, except as
     provided in section 949i(b) of this title or by concurrence
     of two-thirds of the members present at the time the vote is
     taken.
       ``(b) Sentences.--(1) Except as provided in paragraphs (2)
     and (3), sentences shall be determined by a military
     commission by the concurrence of two-thirds of the members
     present at the time the vote is taken.
       ``(2) No person may be sentenced to death by a military
     commission, except insofar as--

[[Page S10022]]

       ``(A) the penalty of death has been expressly authorized
     under this chapter, chapter 47 of this title, or the law of
     war for an offense of which the accused has been found
     guilty;
       ``(B) trial counsel expressly sought the penalty of death
     by filing an appropriate notice in advance of trial;
       ``(C) the accused was convicted of the offense by the
     concurrence of all the members present at the time the vote
     is taken; and
       ``(D) all members present at the time the vote was taken
     concurred in the sentence of death.
       ``(3) No person may be sentenced to life imprisonment, or
     to confinement for more than 10 years, by a military
     commission under this chapter except by the concurrence of
     three-fourths of the members present at the time the vote is
     taken.
       ``(c) Number of Members Required for Penalty of Death.--(1)
     Except as provided in paragraph (2), in a case in which the
     penalty of death is sought, the number of members of the
     military commission under this chapter shall be not less than
     12 members.
       ``(2) In any case described in paragraph (1) in which 12
     members are not reasonably available for a military
     commission because of physical conditions or military
     exigencies, the convening authority shall specify a lesser
     number of members for the military commission (but not fewer
     than 5 members), and the military commission may be
     assembled, and the trial held, with not less than the number
     of members so specified. In any such case, the convening
     authority shall make a detailed written statement, to be
     appended to the record, stating why a greater number of
     members were not reasonably available.

     ``Sec. 949n. Military commission to announce action

       ``A military commission under this chapter shall announce
     its findings and sentence to the parties as soon as
     determined.

     ``Sec. 949o. Record of trial

       ``(a) Record; Authentication.--Each military commission
     under this chapter shall keep a separate, verbatim, record of
     the proceedings in each case brought before it, and the
     record shall be authenticated by the signature of the
     military judge. If the record cannot be authenticated by the
     military judge by reason of his death, disability, or
     absence, it shall be authenticated by the signature of the
     trial counsel or by a member if the trial counsel is unable
     to authenticate it by reason of his death, disability, or
     absence. Where appropriate, and as provided in regulations
     prescribed by the Secretary of Defense, the record of a
     military commission under this chapter may contain a
     classified annex.
       ``(b) Complete Record Required.--A complete record of the
     proceedings and testimony shall be prepared in every military
     commission under this chapter.
       ``(c) Provision of Copy to Accused.--A copy of the record
     of the proceedings of the military commission under this
     chapter shall be given the accused as soon as it is
     authenticated. If the record contains classified information,
     or a classified annex, the accused shall receive a redacted
     version of the record consistent with the requirements of
     section 949d(e) of this title. Defense counsel shall have
     access to the unredacted record, as provided in regulations
     prescribed by the Secretary of Defense.

                       ``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
     under this chapter or inflicted under this chapter upon any
     person subject to this chapter. The use of irons, single or
     double, except for the purpose of safe custody, is prohibited
     under this chapter.

     ``Sec. 949t. Maximum limits

       ``The punishment which a military commission under this
     chapter may direct for an offense may not exceed such limits
     as the President or Secretary of Defense may prescribe for
     that offense.

     ``Sec. 949u. Execution of confinement

       ``(a) In General.--Under such regulations as the Secretary
     of Defense may prescribe, a sentence of confinement adjudged
     by a military commission under this chapter may be carried
     into execution by confinement--
       ``(1) in any place of confinement under the control of any
     of the armed forces; or
       ``(2) in any penal or correctional institution under the
     control of the United States or its allies, or which the
     United States may be allowed to use.
       ``(b) Treatment During Confinement by Other Than the Armed
     Forces.--Persons confined under subsection (a)(2) in a penal
     or correctional institution not under the control of an armed
     force are subject to the same discipline and treatment as
     persons confined or committed by the courts of the United
     States or of the State, District of Columbia, or place in
     which the institution is situated.

     ``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.
``950h. Appellate counsel
``950i. Execution of sentence; suspension of sentence.
``950j. Finality of proceedings, findings, and sentences.

     ``Sec. 950a. Error of law; lesser included offense

       ``(a) Error of Law.--A finding or sentence of a military
     commission under this chapter may not be held incorrect on
     the ground of an error of law unless the error materially
     prejudices the substantial rights of the accused.
       ``(b) Lesser Included Offense.--Any reviewing authority
     with the power to approve or affirm a finding of guilty by a
     military commission under this chapter may approve or affirm,
     instead, so much of the finding as 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.--(1) The accused may submit to the convening
     authority matters for consideration by the convening
     authority with respect to the findings and the sentence of
     the military commission under this chapter.
       ``(2)(A) Except as provided in subparagraph (B), a
     submittal under paragraph (1) shall be made in writing within
     20 days after accused has been give an authenticated record
     of trial under section 949o(c) of this title.
       ``(B) If the accused shows that additional time is required
     for the accused to make a submittal under paragraph (1), the
     convening authority may, for good cause, extend the
     applicable period under subparagraph (A) for not more than an
     additional 20 days.
       ``(3) The accused may waive his right to make a submittal
     to the convening authority under paragraph (1). Such a waiver
     shall be made in writing, and may not be revoked. For the
     purposes of subsection (c)(2), the time within which the
     accused may make a submittal under this subsection shall be
     deemed to have expired upon the submittal of a waiver under
     this paragraph to the convening authority.
       ``(c) Action by Convening Authority.--(1) The authority
     under this subsection to modify the findings and sentence of
     a military commission under this chapter is a matter of the
     sole discretion and prerogative of the convening authority.
       ``(2) The convening authority is not required to take
     action on the findings of a military commission under this
     chapter. If the convening authority takes action on the
     findings, the convening authority may, in his sole
     discretion, only--
       ``(A) dismiss any charge or specification by setting aside
     a finding of guilty thereto; or
       ``(B) change a finding of guilty to a charge to a finding
     of guilty to an offense that is a lesser included offense of
     the offense stated in the charge.
       ``(3)(A) The convening authority shall take action on the
     sentence of a military commission under this chapter.
       ``(B) Subject to regulations prescribed by the Secretary of
     Defense, action under this paragraph may be taken only after
     consideration of any matters submitted by the accused under
     subsection (b) or after the time for submitting such matters
     expires, whichever is earlier.
       ``(C) In taking action under this paragraph, the convening
     authority may, in his sole discretion, approve, disapprove,
     commute, or suspend the sentence in whole or in part. The
     convening authority may not increase a sentence beyond that
     which is found by the military commission.
       ``(4) The convening authority shall serve on the accused or
     on defense counsel notice of any action taken by the
     convening authority under this subsection.
       ``(d) Order of Revision or Rehearing.--(1) Subject to
     paragraphs (2) and (3), the convening authority of a military
     commission under this chapter may, in his sole discretion,
     order a proceeding in revision or a rehearing.
       ``(2)(A) Except as provided in subparagraph (B), a
     proceeding in revision may be ordered by the convening
     authority if--
       ``(i) there is an apparent error or omission in the record;
     or
       ``(ii) the record shows improper or inconsistent action by
     the military commission with respect to the findings or
     sentence that can be rectified without material prejudice to
     the substantial rights of the accused.
       ``(B) In no case may a proceeding in revision--
       ``(i) reconsider a finding of not guilty of a specification
     or a ruling which amounts to a finding of not guilty;
       ``(ii) reconsider a finding of not guilty of any charge,
     unless there has been a finding of guilty under a
     specification laid under that charge, which sufficiently
     alleges a violation; or
       ``(iii) increase the severity of the sentence unless the
     sentence prescribed for the offense is mandatory.

[[Page S10023]]

       ``(3) A rehearing may be ordered by the convening authority
     if the convening authority disapproves the findings and
     sentence and states the reasons for disapproval of the
     findings. If the convening authority disapproves the finding
     and sentence and does not order a rehearing, the convening
     authority shall dismiss the charges. A rehearing as to the
     findings may not be ordered by the convening authority when
     there is a lack of sufficient evidence in the record to
     support the findings. A rehearing as to the sentence may be
     ordered by the convening authority if the convening authority
     disapproves the sentence.

     ``Sec. 950c. Waiver or withdrawal of appeal

       ``(a) Waiver of Right of Review.--(1) An accused may file
     with the convening authority a statement expressly waiving
     the right of the accused to appellate review by the Court of
     Military Commission Review under section 950f of this title
     of the final decision of the military commission under this
     chapter.
       ``(2) A waiver under paragraph (1) shall be signed by both
     the accused and a defense counsel.
       ``(3) A waiver under paragraph (1) must be filed, if at
     all, within 10 days after notice of the action is served on
     the accused or on defense counsel under section 950b(c)(4) of
     this title. The convening authority, for good cause, may
     extend the period for such filing by not more than 30 days.
       ``(b) Withdrawal of Appeal.--Except in a case in which the
     sentence as approved under section 950b of this title extends
     to death, the accused may withdraw an appeal at any time.
       ``(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 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 under section 950f
     of this title of any order or ruling of the military judge
     that--
       ``(A) terminates proceedings of the military commission
     with respect to a charge or specification;
       ``(B) excludes evidence that is substantial proof of a fact
     material in the proceeding; or
       ``(C) relates to a matter under subsection (c), (d), or (e)
     of section 949d of this title.
       ``(2) The United States may not appeal under paragraph (1)
     an order or ruling that is, or amounts to, a finding of not
     guilty by the military commission with respect to a charge or
     specification.
       ``(b) Notice of 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 the order or ruling.
       ``(c) Appeal.--An appeal under this section shall be
     forwarded, by means specified in regulations prescribed the
     Secretary of Defense, directly to the Court of Military
     Commission Review. In ruling on an appeal under this section,
     the Court may act only with respect to matters of law.

     ``Sec. 950e. Rehearings

       ``(a) Composition of Military Commission for Rehearing.--
     Each rehearing under this chapter shall take place before a
     military commission under this chapter composed of members
     who were not members of the military commission which first
     heard the case.
       ``(b) Scope of Rehearing.--(1) Upon a rehearing--
       ``(A) the accused may not be tried for any offense of which
     he was found not guilty by the first military commission; and
       ``(B) no sentence in excess of or more than the original
     sentence may be imposed unless--
       ``(i) the sentence is based upon a finding of guilty of an
     offense not considered upon the merits in the original
     proceedings; or
       ``(ii) the sentence prescribed for the offense is
     mandatory.
       ``(2) Upon a rehearing, if the sentence approved after the
     first military commission was in accordance with a pretrial
     agreement and the accused at the rehearing changes his plea
     with respect to the charges or specifications upon which the
     pretrial agreement was based, or otherwise does not comply
     with pretrial agreement, the sentence as to those charges or
     specifications may include any punishment not in excess of
     that lawfully adjudged at the first military commission.

     ``Sec. 950f. Review by Court of Military Commission Review

       ``(a) Establishment.--The Secretary of Defense shall
     establish a Court of Military Commission Review which shall
     be composed of one or more panels, and each such panel shall
     be composed of not less than three appellate military judges.
     For the purpose of reviewing military commission decisions
     under this chapter, the Court may sit in panels or as a whole
     in accordance with rules prescribed by the Secretary.
       ``(b) Appellate Military Judges.--The Secretary shall
     assign appellate military judges to a Court of Military
     Commission Review. Each appellate military judge shall meet
     the qualifications for military judges prescribed by section
     948j(b) of this title or shall be a civilian with comparable
     qualifications. No person may serve as an appellate military
     judge in any case in which that person acted as a military
     judge, counsel, or reviewing official.
       ``(c) Right of Appeal.--The accused may appeal from a final
     decision of a military commission, and the United States may
     appeal as provided in section 950d of this title, to the
     Court of Military Commission Review in accordance with
     procedures prescribed under regulations of the Secretary.
       ``(d) Scope of Review.--In a case reviewed by the Court of
     Military Commission Review under this section, the Court 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

       ``(a) Review by United States Court of Appeals for the
     District of Columbia Circuit.--(1) Subject to the provisions
     of this subsection, the United States Court of Appeals for
     the District of Columbia Circuit shall have exclusive
     jurisdiction to determine the final validity of any judgment
     rendered by a military commission under this chapter.
       ``(2) The United States Court of Appeals for the District
     of Columbia Circuit may not determine the final validity of a
     judgment of a military commission under this subsection until
     all other appeals from the judgment under this chapter have
     been waived or exhausted.
       ``(3)(A) An accused may seek a determination by the United
     States Court of Appeals for the District of Columbia Circuit
     of the final validity of the judgment of the military
     commission under this subsection only upon petition to the
     Court for such determination.
       ``(B) A petition on a judgment under subparagraph (A) shall
     be filed by the accused in the Court not later than 20 days
     after the date on which--
       ``(i) written notice of the final decision of the military
     commission is served on the accused or defense counsel; or
       ``(ii) the accused submits, in the form prescribed by
     section 950c of this title, a written notice waiving the
     right of the accused to review by the Court of Military
     Commission Review under section 950f of this title.
       ``(C) The accused may not file a petition under
     subparagraph (A) if the accused has waived the right to
     appellate review under section 950c(a) of this title.
       ``(4) The determination by the United States Court of
     Appeals for the District of Columbia Circuit of the final
     validity of a judgment of a military commission under this
     subsection shall be governed by the provisions of section
     1005(e)(3) of the Detainee Treatment Act of 2005 (42 U.S.C.
     801 note).
       ``(b) Review by Supreme Court.--The Supreme Court of the
     United States may review by writ of certiorari pursuant to
     section 1257 of title 28 the final judgment of the United
     States Court of Appeals for the District of Columbia Circuit
     in a determination under subsection (a).

     ``Sec. 950h. Appellate counsel

       ``(a) Appointment.--The Secretary of Defense shall, by
     regulation, establish procedures for the appointment of
     appellate counsel for the United States and for the accused
     in military commissions under this chapter. Appellate counsel
     shall meet the qualifications of counsel for 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 United States
     Court of Appeals for the District of Columbia Circuit and the
     Supreme Court in cases arising under this chapter when
     requested to do so by the Attorney General.
       ``(c) Representation of Accused.--The accused shall be
     represented before the United States Court of Appeals for the
     District of Columbia Circuit or the Supreme Court by military
     appellate counsel, or by civilian counsel if retained by him.

     ``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
     judgement as to the legality of the proceedings (and with
     respect to death, approval under subsection (a)).
       ``(2) A judgement as to legality of proceedings is final
     for purposes of paragraph (1) when--
       ``(A) the time for the accused to file a petition for
     review by the United States Court of Appeals for the District
     of Columbia Circuit has expired and the accused has not filed
     a timely petition for such review and the case is not
     otherwise under review by the Court; or
       ``(B) review is completed in accordance with the judgment
     of the United States Court of Appeals for the District of
     Columbia Circuit and (A) a petition for a writ of certiorari
     is not timely filed, (B) such a petition is denied by the
     Supreme Court, or (C) review is otherwise completed in
     accordance with the judgment of the Supreme Court.
       ``(c) Suspension of Sentence.--The Secretary of the
     Defense, or the convening authority acting on the case (if
     other than the Secretary), may suspend the execution of

[[Page S10024]]

     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, and the proceedings, findings, and
     sentences of military commissions as approved, reviewed, or
     affirmed as required by this chapter, are final and
     conclusive. Orders publishing the proceedings of military
     commissions under this chapter are binding upon all
     departments, courts, agencies, and officers of the United
     States, except as otherwise provided by the President.
       ``(b) Provisions of Chapter Sole Basis for Review of
     Military Commission Procedures and Actions.--Except as
     otherwise provided in this chapter and notwithstanding any
     other provision of law (including section 2241 of title 28 or
     any other habeas corpus provision), no court, justice, or
     judge shall have jurisdiction to hear or consider any claim
     or cause of action whatsoever, including any action pending
     on or filed after the date of enactment of this chapter,
     relating to the prosecution, trial, or judgment of a military
     commission under this chapter, including challenges to the
     lawfulness of procedures of military commissions under this
     chapter.

                   ``SUBCHAPTER VII--PUNITIVE MATTERS

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

     ``Sec. 950aa. Definitions; construction of certain offenses;
       common circumstances

       ``(a) Definitions.--In this subchapter:
       ``(1) The term `military objective' means combatants and
     those objects during an armed conflict which, by their
     nature, location, purpose, or use, effectively contribute to
     the war-fighting or war-sustaining capability of an opposing
     force and whose total or partial destruction, capture, or
     neutralization would constitute a definite military advantage
     to the attacker under the circumstances at the time of an
     attack.
       ``(2) The term `protected person' means any person entitled
     to protection under one or more of the Geneva Conventions,
     including civilians not taking an active part in hostilities,
     military personnel placed out of combat by sickness, wounds,
     or detention, and military medical or religious personnel.
       ``(3) The term `protected property' means any property
     specifically protected by the law of war, including buildings
     dedicated to religion, education, art, science, or charitable
     purposes, historic monuments, hospitals, and places where the
     sick and wounded are collected, but only if and to the extent
     such property is not being used for military purposes or is
     not otherwise a military objective. The term includes objects
     properly identified by one of the distinctive emblems of the
     Geneva Conventions, but does not include civilian property
     that is a military objective.
       ``(b) Construction of Certain Offenses.--The intent
     required for offenses under sections 950hh, 950ii, 950jj,
     950kk, and 950ss of this title precludes their applicability
     with regard to collateral damage or to death, damage, or
     injury incident to a lawful attack.
       ``(c) Common Circumstances.--An offense specified in this
     subchapter is triable by military commission under this
     chapter only if the offense is committed in the context of
     and associated with armed conflict.

     ``Sec. 950bb. Statement of substantive offenses

       ``(a) Purpose.--The provisions of this subchapter codify
     offenses that have traditionally been triable by military
     commissions. This chapter does not establish new crimes that
     did not exist before its enactment, but rather codifies those
     crimes for trial by military commission.
       ``(b) Effect.--Because the provisions of this subchapter
     (including provisions that incorporate definitions in other
     provisions of law) are declarative of existing law, they do
     not preclude trial for crimes that occurred before the date
     of the enactment of this chapter.

     ``Sec. 950cc. Principals

       ``Any person is punishable as a principle under this
     chapter who--
       ``(1) commits an offense punishable by this chapter, or
     aids, abets, counsels, commands, or procures its commission;
       ``(2) causes an act to be done which if directly performed
     by him would be punishable by this chapter; or
       ``(3) is a superior commander who, with regard to acts
     punishable under this chapter, knew, had reason to know, or
     should have known, that a subordinate was about to commit
     such acts or had done so and the superior failed to take the
     necessary and reasonable measures to prevent such acts or to
     punish the perpetrators thereof.

     ``Sec. 950dd. Accessory after the fact

       ``Any person subject to this chapter who, knowing that an
     offense punishable by this chapter has been committed,
     receives, comforts, or assists the offender in order to
     hinder or prevent his apprehension, trial, or punishment
     shall be punished as a military commission under this chapter
     may direct.

     ``Sec. 950ee. 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 attempt to commit either the
     offense charged or an offense necessarily included therein.

     ``Sec. 950ff. Attempts

       ``(a) In General.--Any person subject to this chapter who
     attempts to commit any offense punishable by this chapter
     shall be punished as a military commission under this chapter
     may direct.
       ``(b) Scope of Offense.--An act, done with specific intent
     to commit an offense under this chapter, amounting to more
     than mere preparation and tending, even though failing, to
     effect its commission, is an attempt to commit that offense.
       ``(c) Effect of Consummation.--Any person subject to this
     chapter may be convicted of an attempt to commit an offense
     although it appears on the trial that the offense was
     consummated.

     ``Sec. 950gg. 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 under this chapter
     shall, if the offense solicited or advised is attempted or
     committed, be punished with the punishment provided for the
     commission of the offense, but, if the offense solicited or
     advised is not committed or attempted, he shall be punished
     as a military commission under this chapter may direct.

     ``Sec. 950hh. Murder of protected persons

       ``Any person subject to this chapter who intentionally
     kills one or more protected persons shall be punished by
     death or such other punishment as a military commission under
     this chapter may direct.

     ``Sec. 950ii. Attacking civilians

       ``Any person subject to this chapter who intentionally
     engages in an attack upon a civilian population as such, or
     individual civilians not taking active part in hostilities,
     shall be punished, if death results to one or more of the
     victims, by death or such other punishment as a military
     commission under this chapter may direct, and, if death does
     not result to any of the victims, by such punishment, other
     than death, as a military commission under this chapter may
     direct.

     ``Sec. 950jj. Attacking civilian objects

       ``Any person subject to this chapter who intentionally
     engages in an attack upon a civilian object that is not a
     military objective shall be punished as a military commission
     under this chapter may direct.

     ``Sec. 950kk. Attacking protected property

       ``Any person subject to this chapter who intentionally
     engages in an attack upon protected property shall be
     punished as a military commission under this chapter may
     direct.

     ``Sec. 950ll. Pillaging

       ``Any person subject to this chapter who intentionally and
     in the absence of military necessity appropriates or seizes
     property for private or personal use, without the consent of
     a person with authority to permit such appropriation or
     seizure, shall be punished as a military commission under
     this chapter may direct.

     ``Sec. 950mm. Denying quarter

       ``Any person subject to this chapter who, with effective
     command or control over subordinate groups, declares, orders,
     or otherwise indicates to those groups that there shall be no
     survivors or surrender accepted, with the intent to threaten
     an adversary or to conduct hostilities such that there would
     be no survivors or surrender accepted, shall be punished as a
     military commission under this chapter may direct.

     ``Sec. 950nn. Taking hostages

       ``Any person subject to this chapter who, having knowingly
     seized or detained one or more persons, threatens to kill,
     injure, or

[[Page S10025]]

     continue to detain such person or persons with the intent of
     compelling any nation, person other than the hostage, or
     group of persons to act or refrain from acting as an explicit
     or implicit condition for the safety or release of such
     person or persons, shall be punished, if death results to one
     or more of the victims, by death or such other punishment as
     a military commission under this chapter may direct, and, if
     death does not result to any of the victims, by such
     punishment, other than death, as a military commission under
     this chapter may direct.

     ``Sec. 950oo. Employing poison or similar weapons

       ``Any person subject to this chapter who intentionally, as
     a method of warfare, employs a substance or weapon that
     releases a substance that causes death or serious and lasting
     damage to health in the ordinary course of events, through
     its asphyxiating, bacteriological, or toxic properties, shall
     be punished, if death results to one or more of the victims,
     by death or such other punishment as a military commission
     under this chapter may direct, and, if death does not result
     to any of the victims, by such punishment, other than death,
     as a military commission under this chapter may direct.

     ``Sec. 950pp. Using protected persons as a shield

       ``Any person subject to this chapter who positions, or
     otherwise takes advantage of, a protected person with the
     intent to shield a military objective from attack. or to
     shield, favor, or impede military operations, shall be
     punished, if death results to one or more of the victims, by
     death or such other punishment as a military commission under
     this chapter may direct, and, if death does not result to any
     of the victims, by such punishment, other than death, as a
     military commission under this chapter may direct.

     ``Sec. 950qq. Using protected property as a shield

       ``Any person subject to this chapter who positions, or
     otherwise takes advantage of the location of, protected
     property with the intent to shield a military objective from
     attack, or to shield, favor, or impede military operations,
     shall be punished as a military commission under this chapter
     may direct.

     ``Sec. 950rr. Torture

       ``(a) Offense.--Any person subject to this chapter who
     commits an act specifically intended to inflict severe
     physical or mental pain or suffering (other than pain or
     suffering incidental to lawful sanctions) upon another person
     within his custody or physical control for the purpose of
     obtaining information or a confession, punishment,
     intimidation, coercion, or any reason based on discrimination
     of any kind, shall be punished, if death results to one or
     more of the victims, by death or such other punishment as a
     military commission under this chapter may direct, and, if
     death does not result to any of the victims, by such
     punishment, other than death, as a military commission under
     this chapter may direct.
       ``(b) Severe Mental Pain or Suffering Defined.--In this
     section, the term `severe mental pain or suffering' has the
     meaning given that term in section 2340(2) of title 18.

     ``Sec. 950ss. Cruel or inhuman treatment

       ``(a) Offense.--Any person subject to this chapter who
     commits, or conspires or attempts to commit, an act intended
     to inflict severe or serious physical or mental pain or
     suffering (other than pain or suffering incidental to lawful
     sanctions), including serious physical abuse, upon another
     within his custody or control shall be punished, if death
     results to the victim, by death or such other punishment as a
     military commission under this chapter may direct, and, if
     death does not result to the victim, by such punishment,
     other than death, as a military commission under this chapter
     may direct.
       ``(b) Definitions.--In this section:
       ``(1) The term `severe mental pain or suffering' has the
     meaning given that term in section 2340(2) of title 18.
       ``(2) The term `serious physical pain or suffering' means
     bodily injury that involves--
       ``(A) a substantial risk of death;
       ``(B) extreme physical pain;
       ``(C) a burn or physical disfigurement of a serious nature
     (other than cuts, abrasions, or bruises); or
       ``(D) significant loss or impairment of the function of a
     bodily member, organ, or mental faculty.
       ``(3) The term `serious mental pain or suffering' has the
     meaning given the term `severe mental pain or suffering' in
     section 2340(2) of title 18, except that--
       ``(A) the term `serious' shall replace the term `severe'
     where it appears; and
       ``(B) as to conduct occurring after the date of the
     enactment of the Military Commission Act of 2006, the term
     `serious and non-transitory mental harm (which need not be
     prolonged)' shall replace the term `prolonged mental harm'
     where it appears.

     ``Sec. 950tt. Intentionally causing serious bodily injury

       ``(a) Offense.--Any person subject to this chapter who
     intentionally causes serious bodily injury to one or more
     persons, including lawful combatants, in violation of the law
     of war shall be punished, if death results to one or more of
     the victims, by death or such other punishment as a military
     commission under this chapter may direct, and, if death does
     not result to any of the victims, by such punishment, other
     than death, as a military commission under this chapter may
     direct.
       ``(b) Serious Bodily Injury Defined.--In this section, the
     term `serious bodily injury' means bodily injury which
     involves--
       ``(1) a substantial risk of death;
       ``(2) extreme physical pain;
       ``(3) protracted and obvious disfigurement; or
       ``(4) protracted loss or impairment of the function of a
     bodily member, organ, or mental faculty.

     ``Sec. 950uu. Mutilating or maiming

       ``Any person subject to this chapter who intentionally
     injures one or more protected persons by disfiguring the
     person or persons by any mutilation of the person or persons,
     or by permanently disabling any member, limb, or organ of the
     body of the person or persons, without any legitimate medical
     or dental purpose, shall be punished, if death results to one
     or more of the victims, by death or such other punishment as
     a military commission under this chapter may direct, and, if
     death does not result to any of the victims, by such
     punishment, other than death, as a military commission under
     this chapter may direct.

     ``Sec. 950vv. Murder in violation of the law of war

       ``Any person subject to this chapter who intentionally
     kills one or more persons, including lawful combatants, in
     violation of the law of war shall be punished by death or
     such other punishment as a military commission under this
     chapter may direct.

     ``Sec. 950ww. Destruction of property in violation of the law
       of war

       ``Any person subject to this chapter who intentionally
     destroys property belonging to another person in violation of
     the law of war shall punished as a military commission under
     this chapter may direct.

     ``Sec. 950xx. Using treachery or perfidy

       ``Any person subject to this chapter who, after inviting
     the confidence or belief of one or more persons that they
     were entitled to, or obliged to accord, protection under the
     law of war, intentionally makes use of that confidence or
     belief in killing, injuring, or capturing such person or
     persons shall be punished, if death results to one or more of
     the victims, by death or such other punishment as a military
     commission under this chapter may direct, and, if death does
     not result to any of the victims, by such punishment, other
     than death, as a military commission under this chapter may
     direct.

     ``Sec. 950yy. Improperly using a flag of truce

       ``Any person subject to this chapter who uses a flag of
     truce to feign an intention to negotiate, surrender, or
     otherwise suspend hostilities when there is no such intention
     shall be punished as a military commission under this chapter
     may direct.

     ``Sec. 950zz. Improperly using a distinctive emblem

       ``Any person subject to this chapter who intentionally uses
     a distinctive emblem recognized by the law of war for
     combatant purposes in a manner prohibited by the law of war
     shall be punished as a military commission under this chapter
     may direct.

     ``Sec. 950aaa. Intentionally mistreating a dead body

       ``Any person subject to this chapter who intentionally
     mistreats the body of a dead person, without justification by
     legitimate military necessary, shall be punished as a
     military commission under this chapter may direct.

     ``Sec. 950bbb. Rape

       ``Any person subject to this chapter who forcibly or with
     coercion or threat of force wrongfully invades the body of a
     person by penetrating, however slightly, the anal or genital
     opening of the victim with any part of the body of the
     accused, or with any foreign object, shall be punished as a
     military commission under this chapter may direct.

     ``Sec. 950ccc. Hijacking or hazarding a vessel or aircraft

       ``Any person subject to this chapter who intentionally
     seizes, exercises unauthorized control over, or endangers the
     safe navigation of a vessel or aircraft that is not a
     legitimate military objective shall be punished, if death
     results to one or more of the victims, by death or such other
     punishment as a military commission under this chapter may
     direct, and, if death does not result to any of the victims,
     by such punishment, other than death, as a military
     commission under this chapter may direct.

     ``Sec. 950ddd. Terrorism

       ``Any person subject to this chapter who intentionally
     kills or inflicts great bodily harm on one or more protected
     persons, or intentionally engages in an act that evinces a
     wanton disregard for human life, in a manner calculated to
     influence or affect the conduct of government or civilian
     population by intimidation or coercion, or to retaliate
     against government conduct, shall be punished, if death
     results to one or more of the victims, by death or such other
     punishment as a military commission under this chapter may
     direct, and, if death does not result to any of the victims,
     by such punishment, other than death, as a military
     commission under this chapter may direct.

     ``Sec. 950eee. Providing material support for terrorism

       ``(a) Offense.--Any person subject to this chapter who
     provides material support or resources, knowing or intending
     that they are to be used in preparation for, or in carrying
     out, an act of terrorism (as set forth in section 950ddd of
     this title), or who intentionally provides material support
     or resources to an international terrorist organization
     engaged in hostilities against the

[[Page S10026]]

     United States, knowing that such organization has engaged or
     engages in terrorism (as so set forth), shall be punished as
     a military commission under this chapter may direct.
       ``(b) Material Support or Resources Defined.--In this
     section, the term `material support or resources' has the
     meaning given that term in section 2339A(b) of title 18.

     ``Sec. 950fff. Wrongfully aiding the enemy

       ``Any person subject to this chapter who, in breach of an
     allegiance or duty to the United States, knowingly and
     intentionally aids an enemy of the United States, or one of
     the co-belligerents of the enemy, shall be punished as a
     military commission under this chapter may direct.

     ``Sec. 950ggg. Spying

       ``Any person subject to this chapter who, in violation of
     the law of war and with intent or reason to believe that it
     is to be used to the injury of the United States or to the
     advantage of a foreign power, collects or attempts to collect
     information by clandestine means or while acting under false
     pretenses, for the purpose of conveying such information to
     an enemy of the United States, or one of the co-belligerents
     of the enemy, shall be punished by death or such other
     punishment as a military commission under this chapter may
     direct.

     ``Sec. 950hhh. Conspiracy

       ``Any person subject to this chapter who conspires to
     commit one or more substantive offenses triable by military
     commission under this subchapter, and who knowingly does any
     overt act to effect the object of the conspiracy, shall be
     punished, if death results to one or more of the victims, by
     death or such other punishment as a military commission under
     this chapter may direct, and, if death does not result to any
     of the victims, by such punishment, other than death, as a
     military commission under this chapter may direct.

     ``Sec. 950iii. Contempt

       ``A military commission under this chapter may punish for
     contempt any person who uses any menacing word, sign, or
     gesture in its presence, or who disturbs its proceedings by
     any riot or disorder.

     ``Sec. 950jjj. Perjury and obstruction of justice

       ``A military commission under this chapter may try offenses
     and impose such punishment as the military commission may
     direct for perjury, false testimony, or obstruction of
     justice related to the military commission.''.
       (2) Tables of chapters 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 Commissions.............................948a''.
       (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 of
     Defense shall submit to the Committees on Armed Services of
     the Senate and the House of Representatives a report setting
     forth the procedures for military commissions prescribed
     under chapter 47A of title 10, United States Code (as added
     by subsection (a)).
       (2) Submittal of 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
     modification.

     SEC. 105. AMENDMENTS TO OTHER LAWS.

       (a) Detainee Treatment Act of 2005.--Section 1004(b) of the
     Detainee Treatment Act of 2005 (title X of Public Law 109-
     148; 119 Stat. 2740; 42 U.S.C. 200dd-1(b)) is amended--
       (1) by striking ``may provide'' and inserting ``shall
     provide'';
       (2) by inserting ``or investigation'' after ``criminal
     prosecution''; and
       (3) by inserting ``whether before United States courts or
     agencies, foreign courts or agencies, or international courts
     or agencies,'' after ``described in that subsection,''.
       (b) Uniform Code of Military Justice.--Chapter 47 of title,
     10, United States Code (the Uniform Code of Military
     Justice), is amended as follows:
       (1) Section 802 (article 2 of the Uniform Code of Military
     Justice) is amended by adding at the end the following new
     paragraph:
       ``(13) Lawful enemy combatants (as that term is defined in
     section 948a(3) of this title) who violate the law of war.''.
       (2) Section 821 (article 21 of the Uniform Code of Military
     Justice) is amended by striking ``by statute or law of war''.
       (3) Section 836(a) (article 36(a) of the Uniform Code of
     Military Justice) is amended by inserting ``(other than
     military commissions under chapter 47A of this title)'' after
     ``other military tribunals''.
       (c) Punitive Article of Conspiracy.--Section 881 of title
     10, United States Code (article 81 of the Uniform Code of
     Military Justice)), is amended--
       (1) by inserting ``(a)'' before ``Any person''; and
       (2) by adding at the end the following new subsection:
       ``(b) Any person subject to this chapter or chapter 47A of
     this title who conspires with any other person to commit an
     offense under the law of war, and who knowingly does an overt
     act to effect the object of the conspiracy, shall be
     punished, if death results to one or more of the victims, by
     death or such other punishment as a court-martial or military
     commission may direct, and, if death does not result to any
     of the victims, by such punishment, other than death, as a
     court-martial or military commission may direct.''.
       (d) Review of Judgments of Military Commissions.--
       (1) Review by supreme court.--Section 1259 of title 28,
     United States Code, is amended by adding at the end the
     following new paragraph:
       ``(5) Cases tried by military commission and reviewed by
     the United States Court of Appeals for the District of
     Columbia Circuit under section 950g of title 10.''.
       (2) Detainee treatment act of 2005.--Section 1005(e)(3) of
     the Detainee Treatment Act of 2005 (title X of Public Law
     109-148; 119 Stat. 2740; 10 U.S.C. 801 note) is amended--
       (A) in subparagraph (A), by striking ``pursuant to Military
     Commission Order No. 1. dated August 31, 2005 (or any
     successor military order)'' and inserting ``by a military
     commission under chapter 47A of title 10, United States
     Code'';
       (B) by striking subparagraph (B) and inserting the
     following new subparagraph (B):
       ``(B) Grant of review.--Review under this paragraph shall
     be as of right.'';
       (C) in subparagraph (C)--

       (i) in clause (i)--

       (I) by striking ``pursuant to the military order'' and
     inserting ``by a military commission''; and
       (II) by striking ``at Guantanamo Bay, Cuba''; and

       (ii) in clause (ii), by striking ``pursuant to such
     military order'' and inserting ``by the military
     commission''; and

       (D) in subparagraph (D)(i), by striking ``specified in the
     military order'' and inserting ``specified for a military
     commission''.

     SEC. 106. HABEAS CORPUS MATTERS.

       (a) In General.--Section 2241 of title 28, United States
     Code, is amended--
       (1) by striking subsection (e) (as added by section
     1005(e)(1) of Public Law 109-148 (119 Stat. 2742)) and by
     striking subsection (e) (as added by added by section
     1405(e)(1) of Public Law 109-163 (119 Stat. 3477)); and
       (2) by adding at the end the following new subsection:
       ``(e)(1) No court, justice, or judge shall have
     jurisdiction to hear or consider an application for a writ of
     habeas corpus filed by or on behalf of an alien detained by
     the United States who--
       ``(A) is currently in United States custody; and
       ``(B) has been determined by the United States to have been
     properly detained as an enemy combatant or is awaiting such
     determination.
       ``(2) Except as provided in paragraphs (2) and (3) of
     section 1005(e) of the Detainee Treatment Act of 2005 (10
     U.S.C. 801 note), no court, justice, or judge shall have
     jurisdiction to hear or consider any other action against the
     United States or its agents relating to any aspect of the
     detention, transfer, treatment, trial, or conditions of
     confinement of an alien detained by the United States who--
       ``(A) is currently in United States custody; and
       ``(B) has been determined by the United States to have been
     properly detained as an enemy combatant or is awaiting such
     determination.''.
       (b) Effective Date.--The amendments made by subsection (a)
     shall take effect on the date of the enactment of this Act,
     and shall apply to all cases, without exception, pending on
     or after the date of the enactment of this Act which relate
     to any aspect of the detention, transfer, treatment, trial,
     or conditions of detention of an alien detained by the United
     States since September 11, 2001.

     SEC. 107. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR
                   CERTAIN CLAIMS.

       (a) In General.--No person may invoke the Geneva
     Conventions, or any protocols thereto, in any habeas or civil
     action or proceeding to which the United States, or a current
     or former officer, employee, member of the Armed Forces, or
     other agent of the United States, is a party, as a source of
     rights in any court of the United States or its States or
     territories.
       (b) Geneva Conventions Defined.--In this section, the term
     ``Geneva Conventions'' means--
       (1) the Convention for the Amelioration of the Condition of
     the Wounded and Sick in Armed Forces in the Field, done at
     Geneva August 12, 1949 (6 UST 3217);
       (2) the Convention for the Amelioration of the Condition of
     the Wounded, Sick, and Shipwrecked Members of the Armed
     Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
       (3) the Convention Relative to the Treatment of Prisoners
     of War, done at Geneva August 12, 1949 (6 UST 3316); and
       (4) the Convention Relative to the Protection of Civilian
     Persons in Time of War, done at Geneva August 12, 1949 (6 UST
     3516).

     SEC. 108. IMPLEMENTATION OF TREATY OBLIGATIONS.

       (a) Implementation of Treaty Obligations.--
       (1) In general.--The acts enumerated in subsection (d) of
     section 2441 of title 18, United States Code, as added by
     subsection (b) of this section, and in subsection (c) of this
     section, constitute violations of common Article 3 of the
     Geneva Conventions prohibited by United States law.

[[Page S10027]]

       (2) Prohibition on grave breaches.--The provisions of
     section 2441 of title 18, United States Code, as amended by
     this section, fully satisfy the obligation under Article 129
     of the Third Geneva Convention for the United States to
     provide effective penal sanctions for grave breaches which
     are encompassed in common Article 3 in the context of an
     armed conflict not of an international character. No foreign
     or international source of law shall supply a basis for a
     rule of decision in the courts of the United States in
     interpreting the prohibitions enumerated in subsection (d) of
     such section 2441.
       (3) Interpretation by the president.--(A) As provided by
     the Constitution and by this section, the President has the
     authority for the United States to interpret the meaning and
     application of the Geneva Conventions and to promulgate
     higher standards and administrative regulations for
     violations of treaty obligations which are not grave breaches
     of the Geneva Conventions.
       (B) The President shall issue interpretations described by
     subparagraph (A) by Executive Order published in the Federal
     Register.
       (C) Any Executive Order published under this paragraph
     shall be authoritative (as to non-grave breach provisions of
     common Article 3) as a matter of United States law, in the
     same manner as other administrative regulations.
       (D) Nothing in this section shall be construed to affect
     the constitutional functions and responsibilities of Congress
     and the judicial branch of the United States.
       (4) Definitions.--In this subsection:
       (A) The term ``Geneva Conventions'' means--
       (i) the Convention for the Amelioration of the Condition of
     the Wounded and Sick in Armed Forces in the Field, done at
     Geneva August 12, 1949 (6 UST 3217);
       (ii) the Convention for the Amelioration of the Condition
     of the Wounded, Sick, and Shipwrecked Members of the Armed
     Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
       (iii) the Convention Relative to the Treatment of Prisoners
     of War, done at Geneva August 12, 1949 (6 UST 3316); and
       (iv) the Convention Relative to the Protection of Civilian
     Persons in Time of War, done at Geneva August 12, 1949 (6 UST
     3516).
       (B) The term ``Third Geneva Convention'' means the
     international convention referred to in subparagraph
     (A)(iii).
       (b) Revision to War Crimes Offense Under Federal Criminal
     Code.--
       (1) In general.--Section 2441 of title 18, United States
     Code, is amended--
       (A) in subsection (c), by striking paragraph (3) and
     inserting the following new paragraph (3):
       ``(3) which constitutes a grave breach of common Article 3
     as defined in subsection (d) when committed in the context of
     and in association with an armed conflict not of an
     international character; or''; and
       (B) by adding at the end the following new subsection:
       ``(d) Common Article 3 Violations.--
       ``(1) Prohibited conduct.--In subsection (c)(3), the term
     `grave breach of common Article 3' means any conduct (such
     conduct constituting a grave breach of common Article 3 of
     the international conventions done at Geneva August 12,
     1949), as follows:
       ``(A) Torture.--The act of a person who commits, or
     conspires or attempts to commit, an act specifically intended
     to inflict severe physical or mental pain or suffering (other
     than pain or suffering incidental to lawful sanctions) upon
     another person within his custody or physical control for the
     purpose of obtaining information or a confession, punishment,
     intimidation, coercion, or any reason based on discrimination
     of any kind.
       ``(B) Cruel or inhuman treatment.--The act of a person who
     commits, or conspires or attempts to commit, an act intended
     to inflict severe or serious physical or mental pain or
     suffering (other than pain or suffering incidental to lawful
     sanctions), including serious physical abuse, upon another
     within his custody or control.
       ``(C) Performing biological experiments.--The act of a
     person who subjects, or conspires or attempts to subject, one
     or more persons within his custody or physical control to
     biological experiments without a legitimate medical or dental
     purpose and in so doing endangers the body or health of such
     person or persons.
       ``(D) Murder.--The act of a person who intentionally kills,
     or conspires or attempts to kill, or kills whether
     intentionally or unintentionally in the course of committing
     any other offense under this subsection, one or more persons
     taking no active part in the hostilities, including those
     placed out of combat by sickness, wounds, detention, or any
     other cause.
       ``(E) Mutilation or maiming.--The act of a person who
     intentionally injures, or conspires or attempts to injure, or
     injures whether intentionally or unintentionally in the
     course of committing any other offense under this subsection,
     one or more persons taking no active part in the hostilities,
     including those placed out of combat by sickness, wounds,
     detention, or any other cause, by disfiguring the person or
     persons by any mutilation thereof or by permanently disabling
     any member, limb, or organ of his body, without any
     legitimate medical or dental purpose.
       ``(F) Intentionally causing serious bodily injury.--The act
     of a person who intentionally causes, or conspires or
     attempts to cause, serious bodily injury to one or more
     persons, including lawful combatants, in violation of the law
     of war.
       ``(G) Rape.--The act of a person who forcibly or with
     coercion or threat of force wrongfully invades, or conspires
     or attempts to invade, the body of a person by penetrating,
     however slightly, the anal or genital opening of the victim
     with any part of the body of the accused, or with any foreign
     object.
       ``(H) Sexual assault or abuse.--The act of a person who
     forcibly or with coercion or threat of force engages, or
     conspires or attempts to engage, in sexual contact with one
     or more persons, or causes, or conspires or attempts to
     cause, one or more persons to engage in sexual contact.
       ``(I) Taking hostages.--The act of a person who, having
     knowingly seized or detained one or more persons, threatens
     to kill, injure, or continue to detain such person or persons
     with the intent of compelling any nation, person other than
     the hostage, or group of persons to act or refrain from
     acting as an explicit or implicit condition for the safety or
     release of such person or persons.
       ``(2) Definitions.--In the case of an offense under
     subsection (a) by reason of subsection (c)(3)--
       ``(A) the term `severe mental pain or suffering' shall be
     applied for purposes of paragraphs (1)(A) and (1)(B) in
     accordance with the meaning given that term in section
     2340(2) of this title;
       ``(B) the term `serious bodily injury' shall be applied for
     purposes of paragraph (1)(F) in accordance with the meaning
     given that term in section 113(b)(2) of this title;
       ``(C) the term `sexual contact' shall be applied for
     purposes of paragraph (1)(G) in accordance with the meaning
     given that term in section 2246(3) of this title;
       ``(D) the term `serious physical pain or suffering' shall
     be applied for purposes of paragraph (1)(B) as meaning bodily
     injury that involves--
       ``(i) a substantial risk of death;
       ``(ii) extreme physical pain;
       ``(iii) a burn or physical disfigurement of a serious
     nature (other than cuts, abrasions, or bruises); or
       ``(iv) significant loss or impairment of the function of a
     bodily member, organ, or mental faculty; and
       ``(E) the term `serious mental pain or suffering' shall be
     applied for purposes of paragraph (1)(B) in accordance with
     the meaning given the term `severe mental pain or suffering'
     (as defined in section 2340(2) of this title), except that--
       ``(i) the term `serious' shall replace the term `severe'
     where it appears; and
       ``(ii) as to conduct occurring after the date of the
     enactment of the Military Commission Act of 2006, the term
     `serious and non-transitory mental harm (which need not be
     prolonged)' shall replace the term `prolonged mental harm'
     where it appears.
       ``(3) Inapplicability of certain provisions with respect to
     collateral damage or incident of lawful attack.--The intent
     specified for the conduct stated in subparagraphs (D), (E),
     and (F) or paragraph (1) precludes the applicability of those
     subparagraphs to an offense under subsection (a) by reasons
     of subsection (c)(3) with respect to--
       ``(A) collateral damage; or
       ``(B) death, damage, or injury incident to a lawful attack.
       ``(4) Inapplicability of taking hostages to prisoner
     exchange.--Paragraph (1)(I) does not apply to an offense
     under subsection (a) by reason of subsection (c)(3) in the
     case of a prisoner exchange during wartime.''.
       (2) Retroactive applicability.--The amendments made by this
     subsection, except as specified in subsection (d)(2)(E) of
     section 2441 of title 18, United States Code, shall take
     effect as of November 26, 1997, as if enacted immediately
     after the amendments made by section 583 of Public Law 105-
     118 (as amended by section 4002(e)(7) of Public Law 107-273).
       (c) Additional Prohibition on Cruel, Inhuman, or Degrading
     Treatment or Punishment.--
       (1) In general.--No individual in the custody or under the
     physical control of the United States Government, regardless
     of nationality or physical location, shall be subject to
     cruel, inhuman, or degrading treatment or punishment.
       (2) Cruel, inhuman, or degrading treatment or punishment
     defined.--In this subsection, the term ``cruel, inhuman, or
     degrading treatment or punishment'' means cruel, unusual, and
     inhumane treatment or punishment prohibited by the Fifth,
     Eighth, and Fourteenth Amendments to the Constitution of the
     United States, as defined in the United States Reservations,
     Declarations and Understandings to the United Nations
     Convention Against Torture and Other Forms of Cruel, Inhuman
     or Degrading Treatment or Punishment done at New York,
     December 10, 1984.
       (3) Compliance.--The President shall take appropriate
     action to ensure compliance with this subsection, including
     through the establishment of administrative rules and
     procedures.

     SEC. 109. DETENTION COVERED BY REVIEW OF DECISIONS OF
                   COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY
                   OF DETENTION.

       Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of
     2005 (title X of Public Law 109-148; 119 Stat. 2742; 10
     U.S.C. 801 note) is

[[Page S10028]]

     amended by striking ``the Department of Defense at Guantanamo
     Bay, Cuba'' and inserting ``the United States''.

     SEC. 110. SEVERABILITY.

       If any provision of this Act or amendment made by a
     provision of this Act, or the application of such provision
     or amendment to any person or circumstance, is held to be
     unconstitutional, the remainder of this Act and the
     amendments made by this Act, and the application of such
     provisions and amendments to any other person or
     circumstance, shall not be affected thereby.

                  TITLE II--TERRORIST SURVEILLANCE ACT

     SECTION 201. SHORT TITLE.

       This title may be cited as the ``Terrorist Surveillance Act
     of 2006''.

     SEC. 202. FINDINGS.

       Congress finds the following:
       (1) After the terrorist attacks of September 11, 2001,
     President Bush authorized the National Security Agency to
     intercept communications between people inside the United
     States, including American citizens, and terrorism suspects
     overseas.
       (2) One of the lessons learned from September 11, 2001, is
     that the enemies who seek to greatly harm and terrorize our
     Nation utilize technologies and techniques that defy
     conventional law enforcement practices.
       (3) The President, as the constitutional officer most
     directly responsible for protecting the United States from
     attack, requires the ability and means to detect and track an
     enemy that can master and exploit modern technology.
       (4) It is equally essential, however, that in protecting
     the United States against our enemies, the President does not
     compromise the very civil liberties that he seeks to
     safeguard. As Justice Hugo Black observed, ``The President's
     power, if any, to issue [an] order must stem either from an
     Act of Congress or from the Constitution itself.'' Youngstown
     Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion
     by Black, J.). Similarly, in 2004, Justice Sandra Day
     O'Connor explained in her plurality opinion for the Supreme
     Court in Hamdi v. Rumsfeld: ``We have long since made clear
     that a state of war is not a blank check for the President
     when it comes to the rights of the Nation's citizens.'' Hamdi
     v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations omitted).
       (5) When deciding issues of national security, it is in our
     Nation's best interest that, to the extent feasible, all 3
     branches of the Federal Government should be involved. This
     helps guarantee that electronic surveillance programs do not
     infringe on the constitutional rights of Americans, while at
     the same time ensuring that the President has all the powers
     and means necessary to detect and track our enemies and
     protect our Nation from attack.
       (6) As Justice Sandra Day O'Connor explained in her
     plurality opinion for the Supreme Court in Hamdi v. Rumsfeld,
     ``Whatever power the United States Constitution envisions for
     the Executive in its exchanges with other nations or with
     enemy organizations in times of conflict, it most assuredly
     envisions a role for all 3 branches when individual liberties
     are at stake.'' Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004)
     (citations omitted).
       (7) Similarly, Justice Jackson famously explained in his
     Youngstown concurrence: ``When the President acts pursuant to
     an express or implied authorization of Congress, his
     authority is at its maximum, for it includes all that he
     possesses in his own right plus all that Congress can
     delegate . . . When the President acts in absence of either a
     congressional grant or denial of authority, he can only rely
     upon his own independent powers, but there is a zone of
     twilight in which he and Congress may have concurrent
     authority, or in which its distribution is uncertain.
     Therefore, congressional inertia, indifference or quiescence
     may sometimes, at least as a practical matter, enable, if not
     invite, measures on independent presidential responsibility .
     . . When the President takes measures incompatible with the
     expressed or implied will of Congress, his power is at its
     lowest ebb, for then he can rely only upon his own
     constitutional powers minus any constitutional powers of
     Congress over the matter. Courts can sustain exclusive
     Presidential control in such a case only by disabling the
     Congress from acting upon the subject.'' Youngstown Sheet &
     Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J.,
     concurring).
       (8) Congress clearly has the authority to enact legislation
     with respect to electronic surveillance programs. The
     Constitution provides Congress with broad powers of oversight
     over national security and foreign policy, under article I,
     section 8 of the Constitution of the United States, which
     confers on Congress numerous powers, including the powers--
       (A) ``To declare War, grant Letters of Marque and Reprisal,
     and make Rules concerning Captures on Land and Water'';
       (B) ``To raise and support Armies'';
       (C) ``To provide and maintain a Navy'';
       (D) ``To make Rules for the Government and Regulation of
     the land and naval Forces'';
       (E) ``To provide for calling forth the Militia to execute
     the Laws of the Union, suppress Insurrections and repel
     Invasions''; and
       (F) ``To provide for organizing, arming, and disciplining
     the Militia, and for governing such Part of them as may be
     employed in the Service of the United States''.
       (9) While Attorney General Alberto Gonzales explained that
     the executive branch reviews the electronic surveillance
     program of the National Security Agency every 45 days to
     ensure that the program is not overly broad, it is the belief
     of Congress that approval and supervision of electronic
     surveillance programs should be conducted outside of the
     executive branch, by the article III court established under
     section 103 of the Foreign Intelligence Surveillance Act of
     1978 (50 U.S.C. 1803) and the congressional intelligence
     committees. It is also the belief of Congress that it is
     appropriate for an article III court to pass upon the
     constitutionality of electronic surveillance programs that
     may be directed at Americans.
       (10) The Foreign Intelligence Surveillance Court is the
     proper court to approve and supervise classified electronic
     surveillance programs because it is adept at maintaining the
     secrecy with which it was charged and it possesses the
     requisite expertise and discretion for adjudicating sensitive
     issues of national security.
       (11) In 1975, [then] Attorney General Edward Levi, a strong
     defender of executive authority, testified that in times of
     conflict, the President needs the power to conduct long-range
     electronic surveillance and that a foreign intelligence
     surveillance court should be empowered to issue special
     approval orders in these circumstances.
       (12) Granting the Foreign Intelligence Surveillance Court
     the authority to review electronic surveillance programs and
     pass upon their constitutionality is consistent with well-
     established, longstanding practices.
       (13) The Foreign Intelligence Surveillance Court already
     has broad authority to approve surveillance of members of
     international conspiracies, in addition to granting warrants
     for surveillance of a particular individual under sections
     104, 105, and 402 of the Foreign Intelligence Surveillance
     Act of 1978 (50 U.S.C. 1804, 1805, and 1842).
       (14) Prosecutors have significant flexibility in
     investigating domestic conspiracy cases. Courts have held
     that flexible warrants comply with the 4th amendment to the
     Constitution of the United States when they relate to
     complex, far-reaching, and multifaceted criminal enterprises
     like drug conspiracies and money laundering rings. The courts
     recognize that applications for search warrants must be
     judged in a common sense and realistic fashion, and the
     courts permit broad warrant language where, due to the nature
     and circumstances of the investigation and the criminal
     organization, more precise descriptions are not feasible.
       (15) The Supreme Court, in the ``Keith Case'', United
     States v. United States District Court for the Eastern
     District of Michigan, 407 U.S. 297 (1972), recognized that
     the standards and procedures used to fight ordinary crime may
     not be applicable to cases involving national security. The
     Court recognized that national ``security surveillance may
     involve different policy and practical considerations from
     the surveillance of ordinary crime'' and that courts should
     be more flexible in issuing warrants in national security
     cases. United States v. United States District Court for the
     Eastern District of Michigan, 407 U.S. 297, 322 (1972).
       (16) By authorizing the Foreign Intelligence Surveillance
     Court to review electronic surveillance programs, Congress
     enables the President to use the necessary means to guard our
     national security, while also protecting the civil liberties
     and constitutional rights that we cherish.

     SEC. 203. DEFINITIONS.

       The Foreign Intelligence Surveillance Act of 1978 (50
     U.S.C. 1801 et seq.) is amended--
       (1) by redesignating title VII as title VIII;
       (2) by redesignating section 701 as section 801; and
       (3) by inserting after title VI the following:

             ``TITLE VII--ELECTRONIC SURVEILLANCE PROGRAMS

     ``SEC. 701. DEFINITIONS.

       ``As used in this title--
       ``(1) the terms `agent of a foreign power', `Attorney
     General', `contents', `electronic surveillance', `foreign
     power', `international terrorism', `minimization procedures',
     `person', `United States', and `United States person' have
     the same meaning as in section 101;
       ``(2) the term `congressional intelligence committees'
     means the Select Committee on Intelligence of the Senate and
     the Permanent Select Committee on Intelligence of the House
     of Representatives;
       ``(3) the term `electronic surveillance program' means a
     program to engage in electronic surveillance--
       ``(A) that has as a significant purpose the gathering of
     foreign intelligence information or protecting against
     international terrorism;
       ``(B) where it is not feasible to name every person,
     address, or location to be subjected to electronic
     surveillance;
       ``(C) where effective gathering of foreign intelligence
     information requires the flexibility to begin electronic
     surveillance immediately after learning of suspect activity;
     and
       ``(D) where effective gathering of foreign intelligence
     information requires an extended period of electronic
     surveillance;
       ``(4) the term `foreign intelligence information' has the
     same meaning as in section 101(e) and includes information
     necessary to protect against international terrorism;
       ``(5) the term `Foreign Intelligence Surveillance Court'
     means the court established under section 103(a); and
       ``(6) the term `Foreign Intelligence Surveillance Court of
     Review' means the court established under section 103(b).''.

[[Page S10029]]

     SEC. 204. FOREIGN INTELLIGENCE SURVEILLANCE COURT
                   JURISDICTION TO REVIEW ELECTRONIC SURVEILLANCE
                   PROGRAMS.

       (a) In General.--Title VII of the Foreign Intelligence
     Surveillance Act of 1978, as amended by section 3, is amended
     by adding at the end the following:

     ``SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT
                   JURISDICTION TO REVIEW ELECTRONIC SURVEILLANCE
                   PROGRAMS.

       ``(a) Authorization of Review.--
       ``(1) Initial authorization.--The Foreign Intelligence
     Surveillance Court shall have jurisdiction to issue an order
     under this title, lasting not longer than 90 days, that
     authorizes an electronic surveillance program to obtain
     foreign intelligence information or to protect against
     international terrorism.
       ``(2) Reauthorization.--The Foreign Intelligence
     Surveillance Court shall have jurisdiction to reauthorize an
     electronic surveillance program for a period of time not
     longer than such court determines to be reasonable. There
     shall be no limit on the number of times the Attorney General
     may seek reauthorization of an electronic surveillance
     program.
       ``(3) Resubmission or appeal.--In the event that the
     Foreign Intelligence Surveillance Court refuses to approve an
     application under this subsection, the court shall state its
     reasons in a written opinion, which it shall submit to the
     Attorney General. The Attorney General or his designee may
     submit a new application under section 703 for the electronic
     surveillance program, with no limit on the number of
     resubmissions that may be made. Alternatively, the Attorney
     General may appeal the decision of the Foreign Intelligence
     Surveillance Court to the Foreign Intelligence Surveillance
     Court of Review.
       ``(4) Continued surveillance under title i.--
       ``(A) In general.--If, at any time, the Attorney General
     determines that the known facts and circumstances relating to
     any target within the United States under this title satisfy
     the criteria for an application under section 104 for an
     order for electronic surveillance of the target under section
     105, the Attorney General shall--
       ``(i) discontinue the surveillance of the target under this
     title; or
       ``(ii) continue the surveillance of the target under this
     title, subject to the requirements of subparagraph (B).
       ``(B) Continuation of surveillance.--
       ``(i) In general.--The Attorney General may continue
     surveillance of a target under this title as specified in
     subparagraph (A)(ii) only if the Attorney General makes an
     application under section 104 for an order for electronic
     surveillance of the target under section 105 as soon as the
     Attorney General determines practicable after the date on
     which the Attorney General makes the determination to
     continue surveillance of the target under subparagraph
     (A)(ii).
       ``(ii) Period.--The period during which the Attorney
     General may continue surveillance of a target under this
     title after the Attorney General has determined that making
     an application is practicable shall be limited to a
     reasonable period, as determined by the Attorney General,
     during which the application is prepared and the period
     during which the application of the Attorney General under
     section 104 for an order for electronic surveillance of the
     target under section 105 is pending under title I, including
     during any period in which appeal from the denial of the
     application is pending with the Foreign Intelligence
     Surveillance Court of Review or the Supreme Court under
     section 103(b).
       ``(b) Mandatory Transfer for Review.--
       ``(1) In general.--In any case before any court challenging
     the legality of classified communications intelligence
     activity relating to a foreign threat, including an
     electronic surveillance program, or in which the legality of
     any such activity or program is in issue, if the Attorney
     General files an affidavit under oath that the case should be
     transferred to the Foreign Intelligence Surveillance Court of
     Review because further proceedings in the originating court
     would harm the national security of the United States, the
     originating court shall transfer the case of the Foreign
     Intelligence Surveillance for further proceedings under this
     subsection.
       ``(2) Procedures for review.--The Foreign Intelligence
     Surveillance Court shall have jurisdiction as appropriate to
     determine standing and the legality of the program to the
     extent necessary for resolution of the underlying case. All
     proceedings under this paragraph shall be conducted in
     accordance with the procedures set forth in section 106(f).
     In the event the Foreign Intelligence Surveillance Court
     determines that, in the context of a criminal proceeding, the
     Constitution of the United States would require the
     disclosure of national security information, any such
     constitutionally required disclosure shall be governed by the
     Classified Information Procedures Act, (18 U.S.C. App.), or
     if applicable, section 2339B(f) of title 18, United States
     Code.
       ``(3) Appeal, certiorari, and effects of decisions.--The
     decision of the Foreign Intelligence Surveillance Court made
     under paragraphs (1) and (2), including a decision that the
     disclosure of national security information is
     constitutionally required, shall be subject to review by the
     Foreign Intelligence Surveillance Court of Review under
     section 103(b). The Supreme Court of the United States shall
     have jurisdiction to review decisions of the Foreign
     Intelligence Surveillance Court of Review by writ of
     certiorari granted upon the petition of the United States.
     The decision by the Foreign Intelligence Surveillance Court
     shall otherwise be binding in all other courts.
       ``(4) Dismissal.--The Foreign Intelligence Surveillance
     Court or a court that is an originating court under paragraph
     (1) may dismiss a challenge to the legality of an electronic
     surveillance program for any reason provided for under law.
       ``(5) Preservation of litigation privileges.--Nothing in
     this Act shall be construed to abrogate, limit, or affect any
     litigation privileges in any court.''.

     SEC. 205. APPLICATIONS FOR APPROVAL OF ELECTRONIC
                   SURVEILLANCE PROGRAMS.

       Title VII of the Foreign Intelligence Surveillance Act of
     1978, as amended by section 4, is amended by adding at the
     end the following:

     ``SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC
                   SURVEILLANCE PROGRAMS.

       ``(a) In General.--Each application for approval of an
     electronic surveillance program under this title (including
     resubmission or application for reauthorization) shall--
       ``(1) be made by the Attorney General or his designee;
       ``(2) include a statement of the authority conferred on the
     Attorney General by the President of the United States;
       ``(3) include a statement setting forth the legal basis for
     the conclusion by the Attorney General that the electronic
     surveillance program is consistent with the Constitution of
     the United States;
       ``(4) certify that a significant purpose of the electronic
     surveillance program is to obtain foreign intelligence
     information or to protect against international terrorism;
       ``(5) certify that the information sought cannot reasonably
     be obtained by normal investigative techniques
       ``(6) certify that the information sought cannot reasonably
     be obtained through an application under section 104;
       ``(7) include a statement of the means and operational
     procedures by which the electronic surveillance will be
     executed and effected;
       ``(8) include an explanation of how the electronic
     surveillance program is reasonably designed to ensure that
     the communications that are acquired are communications of or
     with--
       ``(A) a foreign power that engages in international
     terrorism or activities in preparation therefor;
       ``(B) an agent of a foreign power that engages in
     international terrorism or activities in preparation
     therefor;
       ``(C) a person reasonably believed to have communication
     with or be associated with a foreign power that engages in
     international terrorism or activities in preparation therefor
     or an agent of a foreign power that engages in international
     terrorism or activities in preparation therefor; or
       ``(D) a foreign power that poses an imminent threat of
     attack likely to cause death, serious injury, or substantial
     economic damage to the United States, or an agent of a
     foreign power thereof;
       ``(9) include a statement of the proposed minimization
     procedures;
       ``(10) if the electronic surveillance program that is the
     subject of the application was initiated prior to the date
     the application was submitted, specify the date that the
     program was initiated;
       ``(11) include a description of all previous applications
     that have been made under this title involving the electronic
     surveillance program in the application (including the
     minimization procedures and the means and operational
     procedures proposed) and the decision on each previous
     application; and
       ``(12) include a statement of facts concerning the
     implementation of the electronic surveillance program
     described in the application, including, for any period of
     operation of the program authorized not less than 90 days
     prior to the date of submission of the application--
       ``(A) the minimization procedures implemented; and
       ``(B) the means and operational procedures by which the
     electronic surveillance was executed and effected.
       ``(b) Additional Information.--The Foreign Intelligence
     Surveillance Court may require the Attorney General to
     furnish such other information as may be necessary to make a
     determination under section 704.''.

     SEC. 206. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

       Title VII of the Foreign Intelligence Surveillance Act 18
     of 1978, as amended by section 5, is amended by adding at the
     end the following:

     ``SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

       ``(a) Necessary Findings.--Upon receipt of an application
     under section 703, the Foreign Intelligence Surveillance
     Court shall enter an ex parte order as requested, or as
     modified, approving the electronic surveillance program if it
     finds that--
       ``(1) the President has authorized the Attorney General to
     make the application for electronic surveillance for foreign
     intelligence information or to protect against international
     terrorism;
       ``(2) approval of the electronic surveillance program in
     the application is consistent with the Constitution of the
     United States;

[[Page S10030]]

       ``(3) the electronic surveillance program is reasonably
     designed to ensure that the communications that are acquired
     are communications of or with--
       ``(A) a foreign power that engages in international
     terrorism or activities in preparation therefor;
       ``(B) an agent of a foreign power that is engaged in
     international terrorism or activities in preparation
     therefor;
       ``(C) a person reasonably believed to have communication
     with or be associated with a foreign power that is engaged in
     international terrorism or activities in preparation therefor
     or an agent of a foreign power that is engaged in
     international terrorism or activities in preparation
     therefor; or
       ``(D) a foreign power that poses an imminent threat of
     attack likely to cause death, serious injury, or substantial
     economic damage to the United States, or an agent of a
     foreign power thereof;
       ``(4) the proposed minimization procedures meet the
     definition of minimization procedures under section 101(h);
     and
       ``(5) the application contains all statements and
     certifications required by section 703.
       ``(b) Considerations.--In considering the constitutionality
     of the electronic surveillance program under subsection (a),
     the Foreign Intelligence Surveillance Court may consider--
       ``(1) whether the electronic surveillance program has been
     implemented in accordance with the proposal by the Attorney
     General, by comparing--
       ``(A) the minimization procedures proposed with the
     minimization procedures actually implemented;
       ``(B) the nature of the information sought with the nature
     of the information actually obtained; and
       ``(C) the means and operational procedures proposed with
     the means and operational procedures actually implemented;
     and
       ``(2) whether foreign intelligence information has been
     obtained through the electronic surveillance program.
       ``(c) Contents of Order.--An order approving an electronic
     surveillance program under this section shall direct--
       ``(1) that the minimization procedures be followed;
       ``(2) that, upon the request of the applicant, specified
     communication or other common carriers, landlords,
     custodians, or other specified persons, furnish the applicant
     forthwith with all information, facilities, or technical
     assistance necessary to undertake the electronic surveillance
     program in such a manner as will protect its secrecy and
     produce a minimum of interference with the services that such
     carriers, landlords, custodians, or other persons are
     providing potential targets of the electronic surveillance
     program;
       ``(3) that any records concerning the electronic
     surveillance program or the aid furnished or retained by such
     carriers, landlords, custodians, or other persons are
     maintained under security procedures approved by the Attorney
     General and the Director of National Intelligence; and
       ``(4) that the applicant compensate, at the prevailing
     rate, such carriers, landlords, custodians, or other persons
     for furnishing such aid.''.

     SEC. 207. CONGRESSIONAL OVERSIGHT.

       Title VII of the Foreign Intelligence Surveillance Act of
     1978, as amended by section 6, is amended by adding at the
     end the following:

     ``SEC. 705. CONGRESSIONAL OVERSIGHT.

       ``(a) In General.--Not less often than every 180 days, the
     Attorney General shall submit to the congressional
     intelligence committees a report in classified form on the
     activities during the previous 180-day period under any
     electronic surveillance program authorized under this title.
       ``(b) Contents.--Each report submitted under subsection (a)
     shall provide, with respect to the previous 180-day period, a
     description of--
       ``(1) the minimization procedures implemented;
       ``(2) the means and operational procedures by which the
     electronic surveillance program was executed and effected;
       ``(3) significant decisions of the Foreign Intelligence
     Surveillance Court on applications made under section 703;
       ``(4) the total number of applications made for orders
     approving electronic surveillance programs pursuant to this
     title; and
       ``(5) the total number of orders applied for that have been
     granted, modified, or denied.
       ``(c) Rule of Construction.--Nothing in this title shall be
     construed to limit the authority or responsibility of any
     committee of either House of Congress to obtain such
     information as such committee may need to carry out its
     respective functions and duties.''.

     SEC. 208. CLARIFICATION OF THE FOREIGN INTELLIGENCE
                   SURVEILLANCE ACT OF 1978.

       (a) Repeal.--Sections 111, 309, and 404 of the Foreign
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1811, 1829,
     and 1844) are repealed.
       (b) Clarifying Amendments.--
       (1) Title 18.--Section 2511(2) of title 18, United States
     Code, is amended--
       (A) in paragraph (e), by striking ``, as defined in section
     101'' and all that follows through the end of the paragraph
     and inserting the following: ``under the Constitution or the
     Foreign Intelligence Surveillance Act of 1978.''; and
       (B) in paragraph (f), by striking ``from international or
     foreign communications,'' and all that follows through the
     end of the paragraph and inserting ``that is authorized under
     a Federal statute or the Constitution of the United
     States.''.
       (2) FISA.--Section 109 of the Foreign Intelligence
     Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
       (A) in subsection (a)--
       (i) in paragraph (1)--

       (I) by striking ``authorized by statute'' and inserting
     ``authorized by law''; and
       (II) by striking ``or'' at the end;

       (ii) in paragraph (2)--

       (I) by striking ``authorized by statute'' and inserting
     ``authorized by law''; and
       (II) by striking the period and inserting ``; or''; and

       (iii) by adding at the end the following:
       ``(3) and knowingly discloses or uses information obtained
     under color of law by electronic surveillance in a manner or
     for a purpose not authorized by law.''; and
       (B) in subsection (c)--
       (i) by striking ``$10,000'' and inserting ``$100,000''; and
       (ii) by striking ``five years'' and inserting ``15 years''.

     SEC. 209. MODERNIZING AMENDMENTS TO FISA.

       (a) Reference.--In this section, a reference to ``FISA''
     shall mean the Foreign Intelligence Surveillance Act of 1978
     (50 U.S.C. 1801 et seq.).
       (b) Definitions.--Section 101 of FISA (50 U.S.C. 1801) is
     amended--
       (1) in subsection (b)(1)--
       (A) in subparagraph (C), by striking ``or'' after the
     semicolon; and
       (B) by adding at the end the following:
       ``(D) otherwise is reasonably expected to possess, control,
     transmit, or receive foreign intelligence information while
     that person is in the United States, provided that the
     official making the certification required by section
     104(a)(6) deems such foreign intelligence information to be
     significant; or'';
       (2) by striking subsection (f) and inserting the following:
       ``(f) `Electronic surveillance' means--
       ``(1) the installation or use of an electronic, mechanical,
     or other surveillance device for acquiring information by
     intentionally directing the surveillance at a particular
     known person who is reasonably believed to be in the United
     States under circumstances in which that person has a
     reasonable expectation of privacy and a warrant would be
     required for law enforcement purposes; or
       ``(2) the intentional acquisition of the contents of any
     communication under circumstances in which a person has a
     reasonable expectation of privacy and a warrant would be
     required for law enforcement purposes, and if both the sender
     and all intended recipients are reasonably believed to be
     located within the United States.'';
       (3) in subsection (h), by striking paragraph (4) and
     inserting the following:
       ``(4) notwithstanding paragraphs (1), (2), and (3), with
     respect to any electronic surveillance approved pursuant to
     section 102 or 704, procedures that require that no contents
     of any communication originated or sent by a United States
     person shall be disclosed, disseminated, used or retained for
     longer than 7 days unless a court order under section 105 is
     obtained or unless the Attorney General determines that the
     information indicates a threat of death or serious bodily
     harm to any person.''.
       (4) by striking subsection (l); and
       (5) by striking subsection (n) and inserting the following:
       ``(n) `contents', when used with respect to a
     communication, includes any information concerning the
     substance, symbols, sounds, words, purport, or meaning of a
     communication, and does not include dialing, routing,
     addressing, or signaling information.''.
       (c) Electronic Surveillance Authorization.--Section 102 of
     FISA (50 U.S.C. 1802) is amended to read as follows:


     ``ELECTRONIC SURVEILLANCE AUTHORIZATION WITHOUT COURT ORDER;
CERTIFICATION BY ATTORNEY GENERAL; REPORTS TO CONGRESSIONAL COMMITTEES;
TRANSMITTAL UNDER SEAL; DUTIES AND COMPENSATION OF COMMUNICATION COMMON
              CARRIER; APPLICATIONS; JURISDICTION OF COURT

       ``Sec. 102.  (a)(1) Notwithstanding any other law, the
     President through the Attorney General, may authorize
     electronic surveillance without a court order under this
     title to acquire foreign intelligence information for periods
     of up to 1 year if the Attorney General certifies in writing
     under oath that the electronic surveillance is directed at--
       ``(A)(i) the acquisition of the contents of communications
     of foreign powers, as defined in paragraph (1), (2), or (3)
     of section 101(a), or a person other than a United States
     person acting as an agent of a foreign power, as defined in
     section 101(b)(1)(A) or (B); or
       ``(ii) the acquisition of technical intelligence, other
     than the spoken communications of individuals, from property
     or premises under the open and exclusive control of a foreign
     power, as defined in paragraph (1), (2), or (3) of section
     101(a); and
       ``(B) the proposed minimization procedures with respect to
     such surveillance meet the definition of minimization
     procedures under section 101(h);

     if the Attorney General reports such minimization procedures
     and any changes thereto to the Select Committee on
     Intelligence of

[[Page S10031]]

     the Senate and the Permanent Select Committee on Intelligence
     of the House of Representatives at least 30 days prior to
     their effective date, unless the Attorney General determines
     immediate action is required and notifies the committees
     immediately of such minimization procedures and the reason
     for their becoming effective immediately.
       ``(2) An electronic surveillance authorized by this
     subsection may be conducted only in accordance with the
     Attorney General's certification and the minimization
     procedures. The Attorney General shall assess compliance with
     such procedures and shall report such assessments to the
     Select Committee on Intelligence of the Senate and the
     Permanent Select Committee on Intelligence of the House of
     Representatives under section 108(a). If an electronic
     surveillance authorized by this subsection is directed at an
     agent of a foreign power, the Attorney General's report
     assessing compliance with the minimization procedures shall
     also include a statement of the facts and circumstances
     relied upon to justify the belief that the target of the
     electronic surveillance is an agent of a foreign power.
       ``(3) The Attorney General shall immediately transmit under
     seal to the court established under section 103(a) a copy of
     any certification under this subsection. Such certification
     shall be maintained under security measures established by
     the Chief Justice with the concurrence of the Attorney
     General, in consultation with the Director of National
     Intelligence, and shall remain sealed unless--
       ``(A) an application for a court order with respect to the
     surveillance is made under section 104; or
       ``(B) the certification is necessary to determine the
     legality of the surveillance under section 106(f).
       ``(b)(1) Notwithstanding any other provision of law, the
     President, through the Attorney General, may authorize the
     acquisition of foreign intelligence information for periods
     of up to 1 year concerning a person reasonably believed to be
     outside the United States if the Attorney General certifies
     in writing under oath that he has determined that--
       ``(A) the acquisition does not constitute electronic
     surveillance as defined in section 101(f);
       ``(B) the acquisition involves obtaining the foreign
     intelligence information from or with the assistance of a
     wire or electronic communications service provider,
     custodian, or other person (including any officer, employee,
     agent, or other specified person thereof) who has access to
     wire or electronic communications, either as they are
     transmitted or while they are stored, or equipment that is
     being or may be used to transmit or store such
     communications;
       ``(C) a significant purpose of the acquisition is to obtain
     foreign intelligence information; and
       ``(D) the minimization procedures to be employed with
     respect to such acquisition activity meet the definition of
     minimization procedures under section 101(h).
       ``(2) Such certification need not identify the specific
     facilities, places, premises, or property at which the
     acquisition will be directed.
       ``(3) An acquisition undertaken pursuant to this subsection
     may be conducted only in accordance with the Attorney
     General's certification and the minimization procedures
     adopted by the Attorney General. The Attorney General shall
     assess compliance with such procedures and shall report such
     assessments to the Select Committee on Intelligence of the
     Senate and the Permanent Select Committee on Intelligence of
     the House of Representatives under section 108(a).
       ``(4) The Attorney General shall immediately transmit under
     seal to the court established under section 103(a) a copy of
     any certification of the Attorney General under this
     subsection. Such certification shall be maintained under
     security measures established by the Chief Justice with the
     concurrence of the Attorney General, in consultation with the
     Director of National Intelligence, and shall remain sealed
     unless the certification is necessary to determine the
     legality of the acquisition under subsection (o).
       ``(c) With respect to the acquisition authorized under this
     section, the Attorney General may direct a specified person
     to--
       ``(1) furnish the government forthwith all information,
     facilities, and assistance necessary to accomplish the
     acquisition in such a manner as will protect its secrecy and
     produce a minimum of interference with the services that such
     person is providing to the target; and
       ``(2) maintain under security procedures approved by the
     Attorney General and the Director of National Intelligence
     any records concerning the acquisition or the aid furnished
     that such person wishes to maintain.
       ``(d) The government shall compensate, at the prevailing
     rate, such specified person for furnishing the aid set forth
     in subsection (c).
       ``(e) In the case of a failure to comply with a directive
     issued pursuant to this section, the Attorney General may
     invoke the aid of the court established under section 103(a)
     to compel compliance with the directive. The court shall
     issue an order requiring the person or entity to comply with
     the directive forthwith if it finds that the directive was
     issued in accordance with subsection (a) or (b) and is
     otherwise lawful. Any failure to obey the order of the court
     may be punished by the court as contempt thereof. Any process
     under this section may be served in any judicial district in
     which the person or entity may be found.
       ``(f)(1)(A) A person receiving an Attorney General
     directive issued pursuant to this section may challenge the
     legality of that directive by filing a petition with the pool
     established by section 103(e)(1).
       ``(B) The presiding judge shall immediately assign a
     petition to one of the judges serving in the pool established
     by section 103(e)(1). Not later than 24 hours after the
     assignment of such petition, the assigned judge shall conduct
     an initial review of the directive. If the assigned judge
     determines that the petition is frivolous, the assigned judge
     shall immediately deny the petition and affirm the directive
     or any part thereof that is the subject of the petition. If
     the assigned judge determines the petition is not frivolous,
     the assigned judge shall within 72 hours consider the
     petition in accordance with the procedures established under
     section 103(e)(2) and provide a written statement for the
     record of the reasons for any determination under this
     subsection.
       ``(2) A judge considering a petition to modify or set aside
     a directive may grant such petition only if the judge finds
     that such directive does not meet the requirements of this
     section or is otherwise unlawful. If the judge does not
     modify or set aside the directive, the judge shall
     immediately affirm such directive, and order the recipient to
     comply therewith.
       ``(3) Any directive not explicitly modified or set aside
     consistent with this subsection shall remain in full effect.
       ``(g) A petition for review of a decision under subsection
     (f) to affirm, modify, or set aside a directive by the
     Government or any person receiving such directive shall be
     made within 7 days of issuance of the decision required by
     subsection (f) to the court of review established under
     section 103(b), which shall have jurisdiction to consider
     such petitions. The court of review shall provide for the
     record a written statement of the reasons for its decision
     and, on petition by the Government or any person receiving
     such directive for a writ of certiorari, the record shall be
     transmitted under seal to the Supreme Court of the United
     States, which shall have jurisdiction to review such
     decision.
       ``(h) Judicial proceedings under this section shall be
     concluded as expeditiously as possible. The record of
     proceedings, including petitions filed, orders granted, and
     statements of reasons for decision, shall be maintained under
     security measures established by the Chief Justice of the
     United States, in consultation with the Attorney General and
     the Director of National Intelligence.
       ``(i) All petitions under this section shall be filed under
     seal. In any proceedings under this section, the court shall,
     upon request of the Government, review ex parte and in camera
     any Government submission, or portions thereof, which may
     include classified information.
       ``(j) No cause of action shall lie in any court against any
     provider of a communication service or other person
     (including any officer, employee, agent, or other specified
     person thereof) for furnishing any information, facilities,
     or assistance in accordance with a directive under subsection
     (a) or (b).
       ``(k) Information acquired pursuant to an Attorney General
     authorization under this section concerning any United States
     person may be used and disclosed by Federal officers and
     employees without the consent of the United States person
     only in accordance with the minimization procedures required
     by subsection (a) or (b), as applicable. No otherwise
     privileged communication obtained in accordance with, or in
     violation of, the provisions of this section shall lose its
     privileged character. No information from an acquisition
     under this section may be used or disclosed by Federal
     officers or employees except for lawful purposes.
       ``(l) No information acquired pursuant to this section
     shall be disclosed for law enforcement purposes unless such
     disclosure is accompanied by a statement that such
     information, or any information derived therefrom, may only
     be used in a criminal proceeding with the advance
     authorization of the Attorney General.
       ``(m) Whenever the Government intends to enter into
     evidence or otherwise use or disclose in any trial, hearing,
     or other proceeding in or before any court, department,
     officer, agency, regulatory body, or other authority of the
     United States, against an aggrieved person, any information
     obtained or derived from an acquisition under this section,
     the Government shall, prior to the trial, hearing, or other
     proceeding or at a reasonable time prior to an effort to so
     disclose or so use that information or submit it in evidence,
     notify the aggrieved person and the court or other authority
     in which the information is to be disclosed or used that the
     Government intends to so disclose or so use such information.
       ``(n) Whenever any State or political subdivision thereof
     intends to enter into evidence or otherwise use or disclose
     in any trial, hearing, or other proceeding in or before any
     court, department, officer, agency, regulatory body, or other
     authority of a State or a political subdivision thereof,
     against an aggrieved person any information obtained or
     derived from an acquisition under this section, the State or
     political subdivision thereof shall notify the aggrieved
     person, the court or other authority in which the information
     is to be disclosed or used, and the Attorney General that the
     State or political subdivision thereof intends to so disclose
     or so use such information.

[[Page S10032]]

       ``(o) Any person against whom evidence obtained or derived
     from an acquisition authorized pursuant to this section to
     which he is an aggrieved person is to be, or has been,
     introduced or otherwise used or disclosed in any trial,
     hearing, or other proceeding in or before any court,
     department, officer, agency, regulatory body, or other
     authority of the United States, a State, or a political
     subdivision thereof, may move to suppress the evidence
     obtained or derived from such acquisition on the grounds
     that--
       ``(1) the information was unlawfully acquired; or
       ``(2) the acquisition was not made in conformity with an
     order of authorization or approval.

     Such a motion shall be made before the trial, hearing, or
     other proceeding unless there was no opportunity to make such
     a motion or the person was not aware of the grounds of the
     motion.
       ``(p) Whenever a court or other authority is notified
     pursuant to subsection (m) or (n), whenever a motion is made
     pursuant to subsection (o), or whenever any motion or request
     is made by an aggrieved person pursuant to any other statute
     or rule of the United States or any State before any court or
     other authority of the United States or any State to discover
     or obtain an Attorney General directive or other materials
     relating to the acquisition authorized under this section or
     to discover, obtain, or suppress evidence or information
     obtained or derived from the acquisition authorized under
     this section, the United States district court or, where the
     motion is made before another authority, the United States
     district court in the same district as the authority, shall,
     notwithstanding any other law, if the Attorney General files
     an affidavit under oath that disclosure or an adversary
     hearing would harm the national security of the United
     States, review in camera and ex parte the directive, and such
     other materials relating to the acquisition as may be
     necessary to determine whether the acquisition authorized
     under this section was lawfully authorized and conducted. In
     making this determination, the court may disclose to the
     aggrieved person, under appropriate security procedures and
     protective orders, portions of the directive or other
     materials relating to the acquisition only where such
     disclosure is necessary to make an accurate determination of
     the legality of the acquisition.
       ``(q) If the United States district court pursuant to
     subsection (o) determines that the acquisition authorized
     under this section was not lawfully authorized or conducted,
     it shall, in accordance with the requirements of law,
     suppress the evidence which was unlawfully obtained or
     derived or otherwise grant the motion of the aggrieved
     person. If the court determines that such acquisition was
     lawfully authorized and conducted, it shall deny the motion
     of the aggrieved person except to the extent that due process
     requires discovery or disclosure.
       ``(r) Orders granting motions or requests under subsection
     (o), decisions under this section that an acquisition was not
     lawfully authorized or conducted, and orders of the United
     States district court requiring review or granting disclosure
     of directives or other materials relating to such acquisition
     shall be final orders and binding upon all courts of the
     United States and the several States except a United States
     court of appeals and the Supreme Court.
       ``(s) Federal officers who acquire foreign intelligence
     information under this section may consult with Federal law
     enforcement officers or law enforcement personnel of a State
     or political subdivision of a State (including the chief
     executive officer of that State or political subdivision who
     has the authority to appoint or direct the chief law
     enforcement officer of that State or political subdivision)
     to coordinate efforts to investigate or protect against--
       ``(1) actual or potential attack or other grave hostile
     acts of a foreign power or an agent of a foreign power;
       ``(2) sabotage, international terrorism, or the development
     or proliferation of weapons of mass destruction by a foreign
     power or an agent of a foreign power; or
       ``(3) clandestine intelligence activities by an
     intelligence service or network of a foreign power or by an
     agent of a foreign power.
       ``(t) Coordination authorized by subsection (s) shall not
     preclude the certification required by subsection (a) or (b),
     as applicable.
       ``(u) Retention of Directives and Orders.--Directives made
     and orders granted under this section shall be retained for a
     period of at least 10 years from the date when they were
     made.''.
       (d) Designation of Judges.--Section 103 of FISA (50 U.S.C.
     1803) is amended--
       (1) in subsection (a), by inserting, ``at least'' before
     ``seven of the United States judicial circuits''; and
       (2) at the end by adding the following new subsection:
       ``(g) Applications for a court order under this title are
     authorized if the President has, by written authorization,
     empowered the Attorney General to approve applications to the
     court having jurisdiction under this section, and a judge to
     whom an application is made may, notwithstanding any other
     law, grant an order, in conformity with section 105,
     approving electronic surveillance of a foreign power or an
     agent of a foreign power for the purpose of obtaining foreign
     intelligence information.''.
       (e) Applications for Court Orders.--Section 104 of FISA (50
     U.S.C. 1804) is amended--
       (1) in subsection (a), by striking paragraphs (6) through
     (11) and inserting the following:
       ``(6) a certification or certifications by the Assistant to
     the President for National Security Affairs or an executive
     branch official authorized by the President to conduct
     electronic surveillance for foreign intelligence purposes--
       ``(A) that the certifying official deems the information
     sought to be foreign intelligence information;
       ``(B) that a significant purpose of the surveillance is to
     obtain foreign intelligence information;
       ``(C) that such information cannot reasonably be obtained
     by normal investigative techniques; and
       ``(D) including a statement of the basis for the
     certification that--
       ``(i) the information sought is the type of foreign
     intelligence information designated; and
       ``(ii) such information cannot reasonably be obtained by
     normal investigative techniques;
       ``(7) a statement of the period of time for which the
     electronic surveillance is required to be maintained, and if
     the nature of the intelligence gathering is such that the
     approval of the use of electronic surveillance under this
     title should not automatically terminate when the described
     type of information has first been obtained, a description of
     facts supporting the belief that additional information of
     the same type will be obtained thereafter;
       ``(8) a summary description of the nature of the
     information sought and the type of communications or
     activities to be subject to the surveillance;
       ``(9) a summary statement of the facts concerning all
     previous applications that have been made to any judge under
     this title involving any of the persons, facilities, or
     places specified in the application, and the action taken on
     each previous application; and
       ``(10) a summary statement of the means by which the
     surveillance will be effected and a statement whether
     physical entry is required to effect the surveillance.'';
       (2) by striking subsection (b);
       (3) by redesignating subsections (c) through (e) as
     subsections (b) through (d), respectively; and
       (4) in subsection (d)(1)(A), as redesignated by paragraph
     (3), by inserting after ``Secretary of State'' inserting
     ``Director of the Central Intelligence Agency''.
       (f) Issuance of Order.--Section 105 of FISA (50 U.S.C.
     1805) is amended--
       (1) in subsection (a), by--
       (A) striking paragraph (1); and
       (B) redesignating paragraphs (2) through (5) as paragraphs
     (1) through (4), respectively;
       (2) by striking paragraph (1) of subsection (c) and
     inserting the following:
       ``(1) An order approving an electronic surveillance under
     this section shall specify--
       ``(A) the identity, if known, or a description of the
     target of the electronic surveillance identified or described
     in the application pursuant to section 104(a)(3);
       ``(B) the nature and location of each of the facilities or
     places at which the electronic surveillance will be directed,
     if known;
       ``(C) the period of time during which the electronic
     surveillance is approved;
       ``(D) the type of information sought to be acquired and the
     type of communications or activities to be subjected to the
     surveillance; and
       ``(E) the means by which the electronic surveillance will
     be effected and whether physical entry will be used to effect
     the surveillance.'';
       (3) by striking subsection (d) and inserting the following:
       ``(d) Each order under this section shall specify the type
     of electronic surveillance involved, including whether
     physical entry is required.'';
       (4) by striking paragraph (2) of subsection (e) and
     inserting the following:
       ``(2) Extensions of an order issued under this title may be
     granted on the same basis as an original order upon an
     application for an extension and new findings made in the
     same manner as required for an original order and may be for
     a period not longer than the court determines to be
     reasonable or 1 year, whichever is less.'';
       (5) by striking subsection (f) and inserting the following:
       ``(f)(1) Notwithstanding any other provision of this title,
     when an executive branch officer appointed by the President
     with the advice and consent of the Senate who is authorized
     by the President to conduct electronic surveillance
     reasonably determines that--
       ``(A) an emergency situation exists with respect to the
     employment of electronic surveillance to obtain foreign
     intelligence information before an order authorizing such
     surveillance can with due diligence be obtained; and
       ``(B) the factual basis for issuance of an order under this
     title to approve such surveillance exists;

     that official may authorize the emergency employment of
     electronic surveillance in accordance with paragraph (2).
       ``(2) Under paragraph (1), the following requirements shall
     be satisfied:
       ``(A) The Attorney General shall be informed of the
     emergency electronic surveillance.
       ``(B) A judge having jurisdiction under section 103 shall
     be informed by the Attorney

[[Page S10033]]

     General or his designee as soon as practicable following such
     authorization that the decision has been made to employ
     emergency electronic surveillance.
       ``(C) An application in accordance with this title shall be
     made to that judge or another judge having jurisdiction under
     section 103 as soon as practicable, but not more than 7 days
     after such surveillance is authorized. In the absence of a
     judicial order approving such electronic surveillance, the
     surveillance shall terminate when the information sought is
     obtained, when the application for the order is denied, or
     after the expiration of 7 days from the time of emergency
     authorization, whichever is earliest. In the event that such
     application for approval is denied, or in any other case
     where the electronic surveillance is terminated and no order
     is issued approving the surveillance, no information obtained
     or evidence derived from such surveillance shall be received
     in evidence or otherwise disclosed in any trial, hearing, or
     other proceeding in or before any court, grand jury,
     department, office, agency, regulatory body, legislative
     committee, or other authority of the United States, a State,
     or political subdivision thereof, and no information
     concerning any United States person acquired from such
     surveillance shall subsequently be used or disclosed in any
     other manner by Federal officers or employees without the
     consent of such person, except with the approval of the
     Attorney General if the information indicates a threat of
     death or serious bodily harm to any person. A denial of the
     application made under this subsection may be reviewed as
     provided in section 103.
       ``(D) The official authorizing the emergency employment of
     electronic surveillance shall require that the minimization
     procedures required by this title for the issuance of a
     judicial order be followed.''; and
       (6) in subsection (i)--
       (A) by striking ``a wire or'' and inserting ``any'';
       (B) by striking ``chapter'' and inserting ``title''; and
       (C) by adding at the end ``, or in response to
     certification by the Attorney General or his designee seeking
     information, facilities, or technical assistance from such
     person under section 102 of this title''.
       (g) Use of Information.--Section 106 of FISA (50 U.S.C.
     1806) is amended--
       (1) in subsection (i)--
       (A) by striking ``radio''; and
       (B) by inserting ``contain foreign intelligence information
     or'' after ``the Attorney General determines that the
     contents'' inserting ``contain foreign intelligence
     information or''; and
       (2) in subsection (k), by striking ``1804(a)(7)'' and
     inserting ``104(a)(6)''.
       (h) Congressional Oversight.--Section 108 of FISA (50
     U.S.C. 1808) is amended by adding at the end the following:
       ``(c) Document Management System for Applications for
     Orders Approving Electronic Surveillance.--
       ``(1) System proposed.--The Attorney General and Director
     of National Intelligence shall, in consultation with the
     Director of the Federal Bureau of Investigation, the Director
     of the National Security Agency, the Director of the Central
     Intelligence Agency, and the court established under section
     103(b), conduct a feasibility study to develop and implement
     a secure, classified document management system that permits
     the prompt preparation, modification, and review by
     appropriate personnel of the Department of Justice, the
     Federal Bureau of Investigation, the National Security
     Agency, and other applicable elements of the United States
     Government of applications under section 104 before their
     submittal to that court.
       ``(2) Scope of system.--The document management system
     proposed in paragraph (1) shall--
       ``(A) permit and facilitate the prompt submittal of
     applications and all other matters, including electronic
     filings, to the court established under section 103(b) under
     section 104 or 105(g)(5); and
       ``(B) permit and facilitate the prompt transmittal of
     rulings of that court to personnel submitting applications
     described in paragraph (1).''.
       (i) Amendments to Fisa Title I Relating to Weapons of Mass
     Destruction.--
       (1) Section 101 of FISA, as amended by subsection (b) of
     this section, is further amended--
       (A) in subsection (b)(1)--
       (i) by striking ``or'' at the end of subparagraph (D);
       (ii) by redesignating subparagraph (E) as subparagraph (F);
     and
       (iii) by inserting after subparagraph (D) the following new
     subparagraph (E):
       ``(E) engages in the development or proliferation of
     weapons of mass destruction, or activities in preparation
     therefor; or;'';
       (B) in subsection (b)(2)(C), by striking ``sabotage or
     international terrorism'' and inserting ``sabotage,
     international terrorism, or the development or proliferation
     of weapons of mass destruction''; and
       (C) by inserting after subsection (k) the following new
     subsection (l):
       ``(l) `Weapon of mass destruction' means--
       ``(1) any destructive device (as that term is defined in
     section 921 of title 18, United States Code) that is intended
     or has the capability, to cause death or serious bodily
     injury to a significant number of people;
       ``(2) any weapon that is designed or intended to cause
     death or serious bodily injury through the release,
     dissemination, or impact of toxic or poisonous chemicals, or
     their precursors;
       ``(3) any weapon involving a biological agent, toxin, or
     vector (as those terms are defined in section 178 of title
     18, United States Code); or
       ``(4) any weapon that is designed to release radiation or
     radioactivity at a level dangerous to human life.''.
       (2) Sections 101(e)(1)(B), 106(k)(1)(B), and 305(k)(1)(B)
     of FISA are each amended by striking ``sabotage or
     international terrorism'' and inserting ``sabotage,
     international terrorism, or the development or proliferation
     of weapons of mass destruction''.
       (j) Conforming Amendments to Titles I and III of Fisa to
     Accommodate International Movements of Targets.--
       (1) Section 105(e) of FISA is amended by adding at the end
     the following new paragraph:
       ``(4) An order issued under this section shall remain in
     force during the authorized period of surveillance
     notwithstanding the absence of the target from the United
     States, unless the Government files a motion to extinguish
     the order and the court grants the motion.''.
       (2) Section 304(d) of FISA is amended by adding at the end
     the following new paragraph:
       ``(4) An order issued under this section shall remain in
     force during the authorized period of physical search
     notwithstanding the absence of the target from the United
     States, unless the Government files a motion to extinguish
     the order and the court grants the motion.''.

     SEC. 210. CONFORMING AMENDMENT TO TABLE OF CONTENTS.

       The table of contents for the Foreign Intelligence
     Surveillance Act of 1978 is amended--
       (1) by striking the item relating to section 102 and
     inserting the following new item:

``Sec. 102. Electronic surveillance authorization without court order;
              certification by attorney general; reports to
              congressional committees; transmittal under seal; duties
              and compensation of communication common carrier;
              applications; jurisdiction of court.'';
       (2) by striking the items relating to sections 111, 309,
     and 404; and
       (3) by striking the items related to title VII and section
     701 and inserting the following:

             ``TITLE VII--ELECTRONIC SURVEILLANCE PROGRAMS

``Sec. 701. Definitions.
``Sec. 702. Foreign intelligence surveillance court jurisdiction to
              review electronic surveillance programs.
``Sec. 703. Applications for approval of electronic surveillance
              programs.
``Sec. 704. Approval of electronic surveillance programs.
``Sec. 705. Congressional oversight.

                      ``TITLE VIII--EFFECTIVE DATE

``Sec. 801.Effective date.''.
                                 ______