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109th Congress                                            Rept. 109-664
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1
_______________________________________________________________________

                                     


 AMENDING TITLE 10, UNITED STATES CODE, TO AUTHORIZE TRIAL BY MILITARY 
  COMMISSION FOR VIOLATIONS OF THE LAW OF WAR, AND FOR OTHER PURPOSES

                               __________

                              R E P O R T

                                 OF THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                                   ON

                               H.R. 6054

                             together with

                    ADDITIONAL AND DISSENTING VIEWS

                                     
      [Including cost estimate of the Congressional Budget Office]




               September 15, 2006.--Ordered to be printed
                   HOUSE COMMITTEE ON ARMED SERVICES
                       One Hundred Ninth Congress

                  DUNCAN HUNTER, California, Chairman
CURT WELDON, Pennsylvania            IKE SKELTON, Missouri
JOEL HEFLEY, Colorado                JOHN SPRATT, South Carolina
JIM SAXTON, New Jersey               SOLOMON P. ORTIZ, Texas
JOHN M. McHUGH, New York             LANE EVANS, Illinois
TERRY EVERETT, Alabama               GENE TAYLOR, Mississippi
ROSCOE G. BARTLETT, Maryland         NEIL ABERCROMBIE, Hawaii
MAC THORNBERRY, Texas                MARTY MEEHAN, Massachusetts
JOHN N. HOSTETTLER, Indiana          SILVESTRE REYES, Texas
WALTER B. JONES, North Carolina      VIC SNYDER, Arkansas
JIM RYUN, Kansas                     ADAM SMITH, Washington
JIM GIBBONS, Nevada                  LORETTA SANCHEZ, California
ROBIN HAYES, North Carolina          MIKE McINTYRE, North Carolina
KEN CALVERT, California              ELLEN O. TAUSCHER, California
ROB SIMMONS, Connecticut             ROBERT A. BRADY, Pennsylvania
JO ANN DAVIS, Virginia               ROBERT ANDREWS, New Jersey
W. TODD AKIN, Missouri               SUSAN A. DAVIS, California
J. RANDY FORBES, Virginia            JAMES R. LANGEVIN, Rhode Island
JEFF MILLER, Florida                 STEVE ISRAEL, New York
JOE WILSON, South Carolina           RICK LARSEN, Washington
FRANK A. LoBIONDO, New Jersey        JIM COOPER, Tennessee
JEB BRADLEY, New Hampshire           JIM MARSHALL, Georgia
MICHAEL TURNER, Ohio                 KENDRICK B. MEEK, Florida
JOHN KLINE, Minnesota                MADELEINE Z. BORDALLO, Guam
CANDICE S. MILLER, Michigan          TIM RYAN, Ohio
MIKE ROGERS, Alabama                 MARK UDALL, Colorado
TRENT FRANKS, Arizona                G.K. BUTTERFIELD, North Carolina
BILL SHUSTER, Pennsylvania           CYNTHIA McKINNEY, Georgia
THELMA DRAKE, Virginia               DAN BOREN, Oklahoma
JOE SCHWARZ, Michigan
CATHY McMORRIS RODGERS, Washington
MICHAEL CONAWAY, Texas
GEOFF DAVIS, Kentucky
BRIAN P. BILBRAY, California
                   Robert L. Simmons, Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page

Purpose and Summary..............................................     2
Background.......................................................     3
Legislative History..............................................     5
Hearings.........................................................     5
Section-by-Section Analysis......................................     5
      Section 1--Short Title; Table of Contents..................     5
      Section 2--Construction of Presidential Authority to 
        Establish Military Commissions...........................     5
      Section 3--Military Commissions............................     5
      Section 4--Clarification of Conduct Constituting War Crime 
        Offense Under Federal Criminal Code......................    26
      Section 5--Judicial Review.................................    26
      Section 6--Satisfaction of Treaty Obligations..............    28
      Section 7--Revisions to Detainee Treatment Act of 2005 
        Relating to Protection of Certain United States 
        Government Personnel.....................................    28
      Section 8--Retroactive Applicability.......................    29
Executive Communication..........................................    29
Communication from another Committee.............................    30
Committee Position...............................................    30
Congressional Budget Office Estimate.............................    30
Committee Cost Estimate..........................................    32
Oversight Findings...............................................    32
Constitutional Authority Statement...............................    33
Earmarks.........................................................    33
Statement of Federal Mandates....................................    33
Record Votes.....................................................    33
Changes in Existing Law Made by the Bill, as Reported............    36
Additional and Dissenting Views..................................    69
  Additional views of Ike Skelton, John Spratt, Solomon Ortiz, 
    Silvestre Reyes, Vic Snyder, Robert Andrews, James Langevin, 
    Steve Israel, Jim Cooper, G.K. Butterfield...................    69
  Additional view of Ike Skelton.................................    72
  Dissenting views of Ellen O. Tauscher, Marty Meehan, Loretta 
    Sanchez, Rick Larsen, Neil Abercrombie.......................    73
  Dissenting view of Mark Udall..................................    78
  Dissenting view of Cynthia McKinney............................    80


109th Congress                                            Rept. 109-664
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
                    MILITARY COMMISSIONS ACT OF 2006

                                _______
                                

               September 15, 2006.--Ordered to be printed

                                _______
                                

    Mr. Hunter, from the Committee on Armed Services, submitted the 
                               following

                              R E P O R T

                             together with

                    ADDITIONAL AND DISSENTING VIEWS

                        [To accompany H.R. 6054]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Armed Services, to whom was referred the 
bill (H.R. 6054) to amend title 10, United States Code, to 
authorize trial by military commission for violations of the 
law of war, and for other purposes, having considered the same, 
report favorably thereon with amendments and recommend that the 
bill as amended do pass.
  The amendments (stated in terms of the page and line numbers 
of the introduced bill) are as follows:
  Page 4, after line 18, insert the following new paragraph 
(and redesignate the succeeding paragraphs accordingly):

          ``(2) Lawful enemy combatant.--The term `lawful enemy 
        combatant' means an individual determined by or under 
        the authority of the President or Secretary of Defense 
        (whether on an individualized or collective basis) to 
        be--
                  ``(A) a member of the regular forces of a 
                State party engaged in hostilities against the 
                United States or its co-belligerents;
                  ``(B) a member of a militia, volunteer corps, 
                or organized resistance movement belonging to a 
                State party engaged in such hostilities, which 
                are under responsible command, wear a fixed 
                distinctive sign recognizable at a distance, 
                carry their arms openly, and abide by the law 
                of war; or
                  ``(C) a member of a regular armed forces who 
                professes allegiance to a government engaged in 
                such hostilities, but not recognized by the 
                United States.

  Page 6, after line 15, insert the following new subsection 
(and redesignate the succeeding subsection accordingly):

  ``(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.

  Page 34, line 15, insert ``classifed'' after ``who 
receives''.
  Page 80, after line 24, add the following new section:

SEC. 9. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE.

  (a) Applicability to Lawful Enemy Combatants.--Section 802(a) 
of title 10, United States Code (article 2(a) of the Uniform 
Code of Military Justice), is amended by adding at the end the 
following new paragraph:
          ``(13) Lawful enemy combatants who violate the law of 
        war.''.
  (b) Exclusion of Chapter 47A Commissions.--Section 821 of 
such title (article 21 of such Code) is amended by adding at 
the end the following new sentence: ``This section does not 
apply to military commissions established under chapter 47A of 
this title.''.
  (c) Inapplicability of Requirement for Uniform Regulations.--
Section 36(b) of such title (article (36) of such Code) is 
amended by inserting before the period at the end ``, except 
insofar as applicable to military commissions established under 
chapter 47A of this title''.

                          PURPOSE AND SUMMARY

    The purpose of H.R. 6054, the ``Military Commissions Act of 
2006'', is to amend title 10, United States Code, to authorize 
trial by military commission for violations of the law of war 
by alien unlawful enemy combatants. In this legislation 
Congress would authorize standards and procedures for military 
commissions in a new separate chapter of Title 10, United 
States Code. While this new chapter, designated Chapter 47A, is 
based upon the Uniform Code of Military Justice, it would 
create an entirely new structure for these trials.
    Chapter 47A would provide standards for the admission of 
evidence, including hearsay evidence and other statements, 
which are adapted to military exigencies and provide the 
military judge the necessary discretion to determine if the 
evidence is reliable and probative. This new chapter would 
allow the introduction of sensitive classified information into 
evidence outside the presence of the accused in certain 
narrowly limited circumstances, including a determination by 
the military judge that the evidence is probative and that 
admission of the evidence will not deny the accused a full and 
fair trial. This step is taken only if the military judge 
determines this extraordinary step is necessary to protect 
national security, and after a determination by the judge that 
any redactions, substitutions, or alternative means cannot 
protect the evidence. The accused will always have an attorney 
who is provided with this classified evidence. Chapter 47A 
would ensure that military commission decisions are reviewed as 
a matter of right by a new Court of Military Commission Review, 
by the United States Court of Appeals for the District of 
Columbia Circuit, and the Supreme Court if writ of certiorari 
is granted. These courts would certify that the judge's 
decision will not deprive the accused of a full and fair trial. 
These rules would protect classified evidence while preserving 
a fair trial. During an ongoing conflict, sharing sensitive 
intelligence sources, methods, and other classified information 
with terrorist detainees could be highly dangerous to national 
security.
    Second, H.R. 6054 would amend title 18, United States Code 
to define a war crime under United States law as any serious 
violation of Common Article 3 of the Geneva Conventions (Common 
Article 3). Conduct, which would constitute a serious violation 
of Common Article 3, would include torture, cruel or inhuman 
treatment, murder, mutilation or maiming, intentionally causing 
great suffering or serious injury, and taking hostages. This 
section would also identify and criminalize three serious and 
clear outrages upon personal dignity: biological 
experimentation, rape and sexual assault.
    Third, this legislation would amend title 28, United States 
Code, to allow judicial review within the United States Court 
of Appeals for the District of Columbia Circuit of the military 
commissions and of an individual's status as an enemy 
combatant.
    Fourth, this legislation would establish that compliance 
with section 1003 of the Detainee Treatment Act (DTA) of 2005 
(Public Law 109-148) fully satisfies the obligations of the 
United States with regard to section 1 of Common Article 3 of 
the Geneva Conventions, and would prohibit any court from 
treating the Geneva Conventions as a source of rights, directly 
or indirectly, making clear that the Geneva Conventions are not 
judicially enforceable in any court of the United States. 
However, the committee must emphasize that the DTA itself 
specifically provides for the protections of the Fifth, Eighth, 
and Fourteenth Amendments of the Constitution of the United 
States, which are the very heart of the basic human rights that 
U.S. law provides to its citizens. Therefore, a provision 
stating that treatment under the DTA satisfies the Geneva 
Convention is the same as saying that fundamental United States 
standards of treatment satisfy our treaty obligations.
    Finally, this legislation would clarify that the Act 
retroactively applies ``to any aspect of detention, treatment 
or trial of any alien detained at any time since September 11, 
2001.'' This section further states that the Act applies to any 
case, pending or not, whether filed before or after the 
effective date of the Act.

                               BACKGROUND

    On November 13, 2001, President George W. Bush signed an 
executive order regarding ``Detention, Treatment, and Trial of 
Certain Non-Citizens in the War Against Terrorism.'' One 
purpose of this order was to authorize the Secretary of Defense 
to establish military commissions that would provide full and 
fair trials to foreign individuals, who were members of the al 
Qaeda terrorist organization or who engaged in, aided or 
abetted, or conspired to commit, the attacks against the United 
States on September 11, 2001.
    In January 2002, the United States began detaining foreign 
individuals captured in the global war on terror as ``enemy 
combatants'' at United States military facilities at Guantanamo 
Bay, Cuba. Upon an individual's arrival at Guantanamo, United 
States officials assess whether that individual should be 
released or transferred to the custody of his government. After 
Supreme Court decisions to give individuals a method to contest 
their detention, the United States Government established in 
July 2004 ``Combatant Status Review Tribunal'' procedures that 
provide for a one-time review of an individual's combatant 
status. The United States Government also created an 
Administrative Review Board procedure to consider each 
individual's status on an annual basis. Finally, United States 
courts have held that each individual has access to counsel and 
the United States judicial system, and in 2004, the United 
States Supreme Court ruled that the United States District 
Court for the District of Columbia Circuit has jurisdiction to 
consider habeas corpus challenges to the legality of the 
detention of foreign nationals at Guantanamo. That ruling, in 
concert with other related rulings, has resulted in further 
proceedings at the federal trial and appellate court levels.
    Aside from establishing procedures to address individuals' 
status as ``enemy combatants'', the United States Government 
noted that nations have traditionally used military 
commissions, which are recognized by the Geneva Convention, to 
prosecute violations of the law of war. The United States 
Government chose to prosecute certain foreign individuals for 
such violations using military commission procedures 
established by the Secretary of Defense as authorized by 
executive order in November 2001. Some defendants in these 
cases have chosen to bring charges against United States 
officials; one such case was Hamdan v. Rumsfeld.
    On June 29, 2006, the United States Supreme Court ruled, in 
a 5-3 vote on Hamdan v. Rumsfeld, 548 US at ----; 165 L.Ed.723 
(2006), that the President's military commissions lacked 
authority to proceed because they do not comply with the 
Uniform Code of Military Justice (UCMJ) and Common Article 3. 
The Court's essential determinations were that: such a military 
commission requires specific congressional authorization; the 
structure and procedures of the Hamdan-related military 
commission violated the UCMJ; and the procedures adopted to try 
Hamdan did not meet the Common Article 3 requirement that 
sanctions must be pronounced by ``a regularly constituted court 
affording all judicial guarantees which are recognized as 
indispensable by civilized peoples.''
    Although the Court declared the military commissions as 
constituted to be illegal, it left open the possibility that 
changes to commissions' rules or new legislation could bring 
the commissions within the law of war and conform with the 
UCMJ. The Court also suggested that the President could ask the 
United States Congress to authorize commission rules that 
diverge from the UCMJ, provided that they were consistent with 
the Constitution and other laws.
    In response to proposed legislation from the President and 
after conducting three hearings on the topic of military 
commissions, the committee considered H.R. 6054, which 
addresses the scope, jurisdiction, and procedures of military 
commissions in which the United States could prosecute alien 
unlawful enemy combatants for violations of the law of war, and 
other offenses.

                          LEGISLATIVE HISTORY

    H.R. 6054 was introduced on September 12, 2006, and 
referred to the Committee on Armed Services and in addition to 
the Committees on the Judiciary and International Relations, 
for a period to be subsequently determined by the Speaker, in 
each case for consideration of such provisions as fall within 
the jurisdiction of the committee concerned.
    On September 13, 2006, the Committee on Armed Services held 
a mark-up session to consider H.R. 6054. After general 
discussion of the resolution, Ranking Member Skelton offered an 
amendment in the nature of a substitute. Mr. Meehan then 
offered a second degree amendment striking section 6 of the 
Skelton substitute. The Meehan amendment failed on a show of 
hands. The Skelton amendment failed on a record vote of 26 ayes 
to 32 noes with 1 voting present. The committee reported 
favorably the bill, as amended, by a record vote of 52 ayes to 
8 noes with 1 voting present, a quorum being present.

                                HEARINGS

    Committee consideration of the matter contained in the 
Military Commissions Act of 2006, results from three full 
committee hearings conducted on July 12, July 26, and September 
7, 2006.

                      SECTION-BY-SECTION ANALYSIS

    The following is a section-by-section analysis of those 
sections of H.R. 6054 as amended by the Armed Services 
Committee.

Section 1--Short title; table of contents

    This section would establish the short title of the bill as 
the ``Military Commissions Act of 2006.''

Section 2--Construction of Presidential authority to establish military 
        commissions

    This section would clarify that establishing military 
commissions under Chapter 47A of title 10, United States Code 
(as authorized under Section 3 of this Act) does not alter or 
limit the authority of the President under the Constitution to 
establish military commissions on the battlefield or in 
occupied territories.

Section 3--Military commissions

    This section would amend Title 10 of the United States Code 
by inserting after Chapter 47 a new chapter, 47A for military 
commissions, which includes the following sections:

                    Subchapter I--General Provisions


                       Section 948a--Definitions

    The section would define the terms ``Unlawful Enemy 
Combatant'', ``Lawful Enemy Combatant'', ``Geneva 
Conventions'', and ``Classified Information'' under this 
chapter.
    The committee notes that the most significant definition 
here is that of ``unlawful enemy combatants,'' which identifies 
those alien enemy combatants subject to prosecution by military 
commissions. This definition, which is similar to the 
definition employed in the context of Combatant Status Review 
Tribunals, is broader in that it includes not only al Qaeda 
members, but also those who are part of or associated with any 
force or organization (including an international terrorist 
organization) engaged in hostilities against the United States 
in violation of the laws of war. The committee does not believe 
that the United States must be engaged in armed conflict to try 
an alien unlawful enemy combatant engaged in hostilities 
against the United States. At the same time, the definition 
would expressly exclude those who abide by the laws of war, 
such as members of legitimate armed forces, as well as non-
combatants under the Geneva Conventions.

              Section 948b--Military Commissions Generally

    This section would authorize the President to establish 
military commissions for violations of offenses triable by 
military commission as provided in this chapter. While the 
procedures for military commissions created in this chapter are 
based on the procedures for trial by courts-martial under 
Chapter 47, title 10, United States Code, the committee 
considers the commissions authorized by this chapter constitute 
a separate, independent commission system not contemplated in 
Chapter 47, title 10, United States Code. Therefore, this 
section would state that Chapter 47, and any construction or 
application of such chapter and any administrative practice 
under such chapter, does not apply to trial by military 
commission under this chapter. Finally, this section would 
state that the Congress considers the military commissions 
established in 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.

         Section 948c--Persons Subject to Military Commissions

    This section would authorize use of military commissions 
created under this chapter to only those individuals who are 
alien unlawful enemy combatants.

           Section 948d--Jurisdiction of Military Commissions

    This section would give jurisdiction to military 
commissions under this chapter to try only those offenses made 
punishable by this chapter when committed by an alien unlawful 
enemy combatant before, on, or after September 11, 2001. The 
jurisdiction provided in this section, would not therefore, 
extend to lawful enemy combatants. Lawful enemy combatants who 
violate the law of war are subject to Chapter 47, title 10, 
United States Code, and courts martial established under 
chapter 47 would continue to have jurisdiction to try a lawful 
enemy combatant for any offense made punishable under Chapter 
47. Finally, this section would allow, subject to limitations 
the Secretary of Defense may prescribe, the military 
commissions under this chapter to adjudge any punishment not 
forbidden by this chapter, including the penalty of death when 
authorized under this chapter.

        Section 948e--Annual Report to Congressional Committees

    This section would direct the Secretary of Defense to 
submit to the Senate Committee on Armed Services and the House 
Committee on Armed Services an annual report on any trials 
conducted by military commissions under this chapter. The 
report should provide a summary of each trial conducted by the 
military commission that identifies the case brought by the 
prosecution, the ruling by the commission, and, in the event 
the case is reviewed by the Court of Military Commission 
Review, the Court of Appeals for the District of Columbia 
Circuit, or the Supreme Court, the report should summarize the 
holdings and rationale of each appeals court.

           Subchapter II--Composition of Military Commissions


           Section 948h--Who May Convene Military Commissions

    This section would permit the Secretary of Defense, or any 
officer or official of the United States designated by the 
Secretary, to convene military commissions under this chapter.

          Section 948i--Who May Serve on Military Commissions

    This section would make any commissioned officer of the 
armed forces on active duty eligible to serve as a panel member 
on a military commission under this chapter. This section would 
further require the convening authority to detail members of 
the commission that are fully qualified for the duty by reason 
of age, education, training, experience, length of service, and 
judicial temperament. The section would ensure that a member of 
a military commission is not the accuser or a witness for the 
prosecution or has acted as an investigator or counsel in the 
same case. Finally, the section would permit the convening 
authority to excuse a member from participating so long as he 
is excused before the military commission is assembled.

                     Section 948j--Military Judges

    This section would require that a military judge shall be 
detailed to each military commission under this chapter. This 
section would further require the Secretary of Defense to 
prescribe regulations providing for the manner in which 
military judges are detailed to military commissions. The 
section would ensure that a military judge preside over each 
military commission to which he is detailed. This section would 
also require that 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 title 10, United States Code as a military judge 
in general courts-martial by the Judge Advocate General of the 
armed force of which the military judge is a member. The 
section would also provide that any accuser, witness, counsel 
or investigator is ineligible to be the military judge in the 
same case. This section would further require that a military 
judge may not consult with the members of the commission 
outside the presence of the accused or counsel except as 
provided for in Section 949d regarding procedures for the 
admissibility of classified evidence. This section would also 
prohibit the military judge from voting with the members of the 
commission. This section would also permit a military judge 
assigned to a military commission to perform other duties 
assigned to him by the Judge Advocate General. Finally, this 
section would prohibit the convening authority from preparing 
or evaluating any fitness report which relates to the 
performance of duty for a military judge assigned to a military 
commission under this chapter.

       Section 948k--Detail of Trial Counsel and Defense Counsel

    This section would require that trial counsel and military 
defense counsel shall be detailed for each military commission 
under this chapter. The section would also provide that 
assistant trial counsel and assistant and associate defense 
counsel may be detailed. The section would further require that 
military defense counsel should be detailed as soon as 
practicable after the swearing of charges against the accused. 
The section requires the Secretary of Defense to prescribe 
regulations regarding the detail of counsel to military 
commissions under this chapter.
    This section would require that a trial counsel must be (1) 
a judge advocate as defined in section 801 of title 10, United 
States Code, (2) a graduate of an accredited law school or a 
member of the bar of a federal court or of the highest court of 
a State, and (3) certified as competent to perform duties 
before general courts-martial by the Judge Advocate General of 
the armed force of which he is a member. The section would 
permit civilian counsel who is a member of the bar of a federal 
court or of the highest court of a state and otherwise 
qualified to practice before the military commission pursuant 
to regulations prescribed by the Secretary of Defense.
    This section would also require that a military defense 
counsel must be a graduate of an accredited law school or a 
member of the bar of a federal court or of the highest court of 
a State, and certified as competent to perform duties before 
general courts-martial by the Judge Advocate General of the 
armed force of which he is a member.
    The section would ensure that a trial counsel or military 
defense counsel may not have previously acted as an 
investigator, military judge or member of a military commission 
in the same case. The section would prohibit a person who has 
acted for the prosecution in a case from later acting for the 
defense in the same case. Finally, the section would prohibit a 
person who has acted for the defense in a case from later 
acting for the prosecution in the same case.

    Section 948l--Detail or Employment of Reporters and Interpreters

    This section would require the Secretary of Defense to 
prescribe regulations authorizing the convening authority to 
detail qualified court report reporters and interpreters for 
military commissions. The section would require the court 
reporter to make a verbatim recording of the proceedings and 
testimony taken before military commissions under this chapter. 
The section would also require the Secretary of Defense to 
prescribe regulations authorizing the convening authority to 
detail or employ interpreters for the commission, trial counsel 
and defense counsel. The section would further require the 
convening authority to prepare the record of proceedings. 
Finally this section would require that any transcript of a 
military commission under this chapter will be under the 
control of the convening authority.

    Section 948m--Number of Members; Excuse of Members; Absent and 
                           Additional Members

    This section would require that a military commission under 
this chapter should have a minimum of five members and that in 
cases where the death penalty is sought, there should be the 
number of members required by section 949(m) of this chapter. 
The section would also provide that no member of a military 
commission may be absent or excused after the military 
commission has been assembled unless (1) as a result of a 
challenge, (2) excused by the military judge for physical 
disability or other good cause, or (3) by order of the 
convening authority for good cause. The section would also 
require that whenever a military commission is reduced below 
the amount required by this section, the trial may not proceed 
until the convening authority details a sufficient number of 
members. Finally, the section would provide that any trial may 
not proceed with any new members until the recorded evidence 
previously introduced has been read to the military commission 
in the presence of the military judge, the accused (except as 
provided in section 949d of this chapter) and counsel for both 
sides.

                  Subchapter III--Pre-Trial Procedure


                Section 948q--Charges and Specifications

    This section would require that a person subject to chapter 
47 of this title, under an oath before a commissioned officer 
of the armed forces authorized to administer oaths, sign 
charges and specifications against the accused in a military 
commission under this chapter. In making the charge against the 
accused, the officer must state that he has personal knowledge 
of, or reason to believe, the matters set forth in the charge, 
and that they are true in fact to the best of the signer's 
knowledge and belief. The section would also require that, upon 
the swearing of the charges, the accused be informed of the 
charges against him as soon as practicable.

 Section 948r--Compulsory Self-Incrimination Prohibited; Treatment of 
          Statements Obtained by Torture and Other Statements

    The section would prohibit the accused from being required 
to testify against himself at a proceeding of a military 
commission under this chapter. This section would also exclude 
from military commission proceedings statements obtained by use 
of torture (as defined in section 2340 of title 18, United 
States Code), except against a person accused of torture as 
evidence the statement was made. The committee notes that the 
``fruit of the poisonous tree'' doctrine (see Wong Sun Et Al. 
v. United States, 371 U.S. 471 (1963)) does not apply to this 
section, and that evidence obtained as a result of such 
statements would be admissible evidence. Finally, this section 
would require the military judge, where a statement was 
allegedly obtained through coercion, to rule whether the 
circumstances under which the statement was obtained render the 
statement unreliable or lacking in probative value.

                    Section 948s--Service of Charges

    The section would require the trial counsel assigned to a 
case before a military commission under this chapter to ensure 
that the accused and military defense counsel are served a copy 
of the charges, and that it is provided sufficiently in advance 
of trial so the accused can prepare a defense. The charges 
should be served in English and, if appropriate, in another 
language that the accused understands.

                     Subchapter IV--Trial Procedure


                          Section 949a--Rules

    This section would require the Secretary of Defense to 
prescribe pretrial, trial, and post-trial procedures that are 
not contrary to or inconsistent with this chapter, including 
elements and modes of proof, for cases triable by military 
commission under this chapter.
    This section would also provide that evidence in a military 
commission under this chapter shall be admissible if the 
military judge determines that the evidence would have 
probative value to a reasonable person. The section would also 
provide that this rule is subject to such exceptions and 
limitations as the Secretary of Defense may prescribe by 
regulation. The committee notes that this standard for 
admission of evidence is similar to that used by international 
tribunals, such as the International Criminal Tribunal for the 
former Yugoslavia (ICTY) and the International Criminal 
Tribunal for Rwanda (ICTR).\1\
---------------------------------------------------------------------------
    \1\ See ICTY Rules of Procedure and Evidence, Rule 89C (General 
Provisions) (adopted February 11, 1994), ``A Chamber may admit any 
relevant evidence which it deems to have probative value.'' ICTR Rule 
89C (May 21, 2005) is identical.
---------------------------------------------------------------------------
    This section would also provide that hearsay evidence is 
admissible unless the military judge would find that the 
circumstances render it unreliable or lacking in probative 
value. The section also would require that such evidence may be 
admitted only if there is notice to the adverse party in 
advance. The committee expects the defense to have the burden 
of persuasion with respect to the admission of any contested 
hearsay statement. Finally, the section would provide that the 
military judge must exclude any hearsay evidence if the 
probative value is substantially outweighed: (1) by the danger 
of unfair prejudice, confusion of the issues, or misleading the 
members or (2) by considerations of undue delay, waste of time, 
or needless presentation of cumulative evidence.
    This section would also require that the Secretary of 
Defense notify and describe any modifications to the Senate 
Committee on Armed Services and the House Committee on Armed 
Services no later than sixty days before the date on which any 
proposed modification of the procedures in effect for military 
commissions under this chapter go into effect.

   Section 949b--Unlawfully Influencing Action of Military Commission

    This section would prohibit the convening authority from 
censuring, reprimanding, or admonishing the members of a 
military commission, trial counsel, defense counsel or military 
judge assigned under this chapter with respect to the findings 
or sentence adjudged by the military commission, or with 
respect to any other exercise of any functions in the conduct 
of the proceedings.
    This section would also prohibit any person from attempting 
to coerce or influence by any unauthorized means the actions of 
a military commission or member of a military commission in 
reaching the findings or sentence in any case or the action of 
any convening, approving or reviewing authority with respect to 
judicial acts.
    The section would not prohibit: (1) enrollment in general 
instructional or information courses in military justice if 
such courses were designed solely for the purpose of 
instructing members of a command in the substantive and 
procedural aspects of military commissions; or (2) general 
statements or instructions given in open proceedings by a 
military judge or counsel.
    Finally, this section would prohibit consideration or 
evaluation of the performance of duty of any member of a 
military commission, or giving 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 for the 
following purposes: the preparation of any report or document 
used for the purpose of determining whether a commissioned 
officer of the armed forces is qualified to be advanced in 
grade, assigned to a new position, transferred or retained on 
active duty.

       Section 949c--Duties of Trial Counsel and Defense Counsel

    This section would provide that the trial counsel of a 
military commission under this chapter shall prosecute in the 
name of the United States.
    This section would also provide that the accused should be 
represented in his defense before a military commission under 
this chapter as provided in this subsection. The section would 
provide that an accused shall be represented by military 
counsel detailed under section 948k of this title or by a 
civilian counsel who meets the requirements listed in this 
section.
    This section would provide that the accused may be 
represented by civilian counsel if retained by the accused, but 
only if such civilian counsel: (1) is a United States citizen; 
(2) is admitted to the practice of law in a State, district, or 
possession of the United States or before a Federal court; (3) 
has not been the subject of any sanction of disciplinary action 
by any court, bar, or other competent governmental authority 
for relevant misconduct; (4) has been determined to be eligible 
for access to classified information that is classified at the 
level Secret or higher; and (5) 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.
    This section would also require civilian defense counsel to 
protect any classified information received during the course 
of representation of the accused in accordance with all 
applicable law governing the protection of classified 
information and prohibits divulging such information to any 
person not authorized to receive it.
    This section would also provide that if the accused is 
represented by civilian counsel, military counsel detailed 
shall act as associate counsel.
    This section would prohibit the accused from being 
represented by more than one military counsel unless by the 
person authorized under regulations prescribed under section 
948k of this title, at his sole discretion, details additional 
military counsel to represent the accused.
    Finally, this section would permit defense counsel to 
cross-examine each witness for the prosecution who testifies 
before a military commission under this chapter.

                         Section 949d--Sessions

    This section would allow the military judge to call the 
military commission into session without the presence of the 
members at any time after the service of charges which have 
been referred for trial by military commission under this 
chapter, for the purpose of: (1) 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, (2) 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, (3) if permitted by regulations 
prescribed by the Secretary of Defense, receiving the pleas of 
the accused, and (4) 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. 
This section would also provide that these proceedings will be 
conducted in the presence of the accused, defense counsel, and 
trial counsel and be made part of the record except as provided 
in subsections (c), (d), and (e) of this section.
    This section would also provide that all proceedings of the 
military commission in which members are present, including any 
consultation of the members with the military judge or counsel, 
shall be in the presence of the accused, defense counsel, and 
trial counsel and be made part of the record except as provided 
in subsections (c) and (e) of this section.
    Subsection (c) of this section would provide that when the 
members of a military commission under this chapter deliberate 
or vote, only the members may be present.
    Subsection (d) of this section would provide the military 
judge discretion to close to the public all or part of the 
proceedings of a military commission under this chapter under 
the following rules. The military judge may close to the public 
all or a portion of the proceedings of a military commission or 
permit the admission of classified information outside the 
presence of the accused, based upon a presentation (including 
an ex parte or in camera presentation) by either the 
prosecution or the defense. The trial counsel may not make a 
presentation requesting the admission of classified information 
outside the presence of the accused unless the head of the 
department or agency which has control over the matter (after 
personal consideration by that officer) certifies in writing to 
the military judge that: (1) the disclosure of the classified 
information to the accused could reasonably be expected to 
prejudice the national security; and (2) that such evidence has 
been declassified to the maximum extent possible, consistent 
with the requirements of national security. Finally, the 
military judge may close to the public all or a portion of the 
proceedings of a military commission upon making a specific 
finding that such closure is necessary to: (1) protect 
information the disclosure of which could reasonably be 
expected to cause identifiable damage to the public interest or 
the national security, including intelligence or law 
enforcement sources, methods, or activities; or (2) ensure the 
physical safety of individuals.
    Subsection (e) of this section would provide that the 
military judge may not exclude the accused from any portion of 
the proceeding except upon a specific finding that the 
exclusion of the accused: (1) is necessary to protect 
classified information the disclosure of which to the accused 
could reasonably be expected to cause identifiable damage to 
the national security, including intelligence or law 
enforcement sources, methods, or activities; (2) is necessary 
to ensure the physical safety of individuals; or (3) is 
necessary to prevent disruption of the proceedings by the 
accused. The military judge must also make a specific finding 
that the exclusion of the accused is no broader than necessary, 
and will not deprive the accused of a full and fair trial. This 
finding may be based upon a presentation, including a 
presentation ex parte or in camera, by either trial counsel or 
defense counsel. Before trial counsel may make a presentation 
requesting the admission of classified information that has not 
been provided to the accused, the head of the executive or 
military department or governmental agency concerned shall 
ensure, and shall certify in writing to the military judge, 
that such evidence has been declassified to the maximum extent 
possible, consistent with the requirements of national 
security.
    Subsection (e) of the section would also provide that no 
evidence may be admitted that has not been provided to the 
accused unless the evidence is classified information and the 
military judge makes a specific finding that: (1) consideration 
of that evidence by the military commission, without the 
presence of the accused, is warranted; (2) admission of an 
unclassified summary or redacted version of that evidence would 
not be an adequate substitute and, in the case of testimony, 
alternative methods to obscure the identity of the witness are 
not adequate; and (3) admission of the evidence would not 
deprive the accused of a full and fair trial. If the accused is 
excluded from a portion of the proceedings, the accused shall 
be provided with a redacted transcript of the proceedings from 
which excluded and, to the extent practicable, an unclassified 
summary of any evidence introduced. Under no circumstances 
would such a summary or redacted transcript compromise the 
interests warranting the exclusion of the accused under 
subsection (e). Military defense counsel would be present and 
able to participate in all trial proceedings and would be given 
access to all evidence admitted outside the presence of the 
accused. Civilian defense counsel would be permitted to be 
present and to participate in proceedings from which the 
accused is excluded under this subsection, and would be given 
access to classified information admitted under this 
subsection, if: (1) civilian defense counsel has obtained the 
necessary security clearances; and (2) the presence of civilian 
defense counsel or access of civilian defense counsel to such 
information, as applicable, is consistent with regulations to 
protect classified information that the Secretary of Defense 
may prescribe. Any defense counsel who receives classified 
information admitted under subsection (e) would not be 
obligated to, and may not, disclose that information to the 
accused. At all times the accused must have defense counsel 
with sufficient security clearance to participate in any 
proceeding, including an ex parte or in camera presentation, 
with respect to classified information. If evidence has been 
admitted under this subsection that has not been provided to 
the accused, the judge would instruct the members of the 
commission: (1) that such evidence was so admitted; and (2) 
that, in weighing the value of that evidence, the commission 
shall consider the fact that such evidence was admitted without 
having been provided to the accused.
    Subsection (f) of this section would provide that a 
statement that is made by the accused during an interrogation, 
even if otherwise classified, may not be admitted into evidence 
in a military commission under this chapter unless the accused 
is present for the admission of the statement into evidence or 
the statement is otherwise provided to the accused. A statement 
of an accused for purposes of subsection (f) is a statement 
communicated knowingly and directly by the accused in response 
to questioning by United States or foreign military, 
intelligence, or criminal investigative personnel. However, the 
section would require that this subsection not be construed to 
prevent the redaction of intelligence sources or methods, which 
do not constitute statements of the accused, from any document 
provided to the accused or admitted into evidence.
    The committee notes that because military commission may 
have to consider highly sensitive intelligence that cannot 
reasonably be shared with captured terrorists, it endorses 
these special procedures that, under narrowly defined 
circumstances, would permit the introduction of classified 
evidence outside the presence of the accused. The committee 
believes alien unlawful enemy combatants, who are engaged in a 
war with the United States, should not be allowed to exploit 
military commission procedures to gain information that might 
assist them or their associates in perpetrating future attacks 
against the United States and its allies. The committee 
believes that Military Rule of Evidence (MRE) 505, would not be 
practicable for military commissions. MRE 505 does not permit 
the judge to permit the admission of classified evidence unless 
it is shared with the accused. If the government cannot 
substitute redacted or summarized evidence for classified 
evidence, then the government must choose between disclosing 
classified evidence to the accused or not introducing the 
evidence at all. Giving the government that choice is entirely 
appropriate when it comes to the trial of U.S. soldiers or 
lawful enemy combatants in a courts-martial, but it is neither 
necessary, nor appropriate for the trials of unlawful enemy 
combatants for violations of the law of war that occur during 
an ongoing conflict. This section therefore would grant the 
military judge the discretion, under carefully defined and 
extraordinary circumstances, to admit classified evidence that 
is not shared with the accused.
    The committee believes that excluding the accused under 
this subsection will be an extraordinary occurrence, to be 
carefully limited. There will be no ``secret trials'' without 
the accused. Instead, the section would provide that before any 
classified evidence may be introduced outside the presence of 
the accused, the head of the department or agency responsible 
for classifying that information must personally certify that 
the disclosure of the information to the accused could 
reasonably be expected to harm national security and that the 
information at issue has been declassified to the maximum 
extent possible. The military judge then must make specific 
findings to confirm that the exclusion is warranted to protect 
classified information; that the contemplated exclusion is no 
broader than necessary; and that the exclusion would not 
violate the right to a full and fair trial for the accused. The 
defense counsel for the accused will remain present and able to 
represent the accused in all proceedings, and the accused will 
be provided with unclassified summaries or a redacted 
transcript of the proceedings, whenever possible. In addition, 
this section makes clear that the accused must always be given 
access to any statements that he himself made during an 
interrogation, if the Government wishes to use such statements 
in the proceedings.

                       Section 949e--Continuances

    This section would require that the military judge may 
grant reasonable continuances if they appear to be just.

                        Section 949f--Challenges

    This section would permit the military judge and members of 
a military commission under this chapter to be challenged by 
the accused or trial counsel for cause stated to the 
commission. The section would also require the military judge 
to determine the relevance and validity of challenges for 
cause. The section would prohibit the military judge from 
receiving a challenge to more than one person at a time. The 
section would require challenges by trial counsel to ordinarily 
be presented and decided before challenges by the accused.
    The section would permit one peremptory challenge by the 
trial counsel and one peremptory challenge by the accused. The 
section would authorize only a challenge against the military 
judge for cause.
    The section would permit challenges for cause to additional 
members detailed to a military commission under this chapter. 
Finally, after any challenges for cause against such additional 
members are presented and decided, the section would permit the 
accused and trial counsel one peremptory challenge against 
members not previously subject to peremptory challenge.

                              949g--Oaths

    This section would require military judges, members, trial 
counsel, defense counsel, reporters, and interpreters to take 
an oath to perform their duties faithfully before performing 
their duties in a military commission under this chapter. This 
section would authorize the Secretary of Defense to prescribe 
regulations regarding the form of the oath, the time and place 
of the taking thereof, the manner of recording the same, and 
whether the oath shall be taken for all cases in which duties 
are to be performed or for a particular case. The section would 
also require that the regulations for 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 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. Finally, the 
section would provide that each witness before a military 
commission under this chapter will be examined under oath.

                     Section 949h--Former Jeopardy

    This section would provide that no person may, without his 
consent, be tried by a military commission under this chapter a 
second time for the same offense. The section would also 
provide that 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.

                   Section 949i--Pleas of the Accused

    This section would provide that a plea of not guilty shall 
be entered on the record and the military commission shall 
proceed as though the accused had pleaded 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. This section would also 
provide that 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 by the 
military commission. The section would further provide that the 
finding of guilty by the military judge pursuant to this 
section shall constitute the finding of the commission unless 
the plea of guilty is withdrawn prior to announcement of the 
sentence, in which event the proceedings shall continue as 
though the accused had pleaded not guilty.

    Section 949j--Opportunity To Obtain Witnesses and Other Evidence

    This section would provide that defense counsel in a 
military commission under this chapter shall have a reasonable 
opportunity to obtain witnesses and other evidence, including 
evidence in the possession of the United States, as provided in 
regulations prescribed by the Secretary of Defense.
    This section would also provide that the process issued in 
a military commission under this chapter to compel witnesses to 
appear and testify and to compel the production of other 
evidence shall be similar to that which courts of the United 
States having criminal jurisdiction may lawfully issue; and 
shall run to any place where the United States shall have 
jurisdiction thereof.
    This section would also provide the military judge in a 
military commission under this chapter, upon a sufficient 
showing, may authorize trial counsel, in making documents 
available to the accused through discovery conducted pursuant 
to such rules as the Secretary of Defense shall prescribe, to 
delete specified items of classified information from such 
documents and, when such a deletion is made: (1) to substitute 
an unclassified summary of the classified information in such 
documents; or (2) to substitute an unclassified statement 
admitting relevant facts that classified information in such 
documents would tend to prove.
    This section would require the trial counsel in a military 
commission under this chapter to disclose as soon as 
practicable to the defense, the existence of any evidence known 
to trial counsel that reasonably tends to exculpate the 
accused. The section would also require that exculpatory 
evidence that consists of classified information may be 
provided solely to defense counsel, and not the accused, after 
review in camera by the military judge. The section would 
further require that before evidence may be withheld from the 
accused under this subsection, the head of the executive or 
military department or government agency concerned shall 
ensure, and shall certify in writing to the military judge, 
that (1) the disclosure of such evidence to the accused could 
reasonably be expected to prejudice the national security; and 
(2) such evidence has been declassified to the maximum extent 
possible, consistent with the requirements of national 
security. This section would further require that any 
classified exculpatory evidence that is not disclosed to the 
accused under this subsection: (1) shall be provided to 
military defense counsel; (2) shall be provided to civilian 
defense counsel, if civilian defense counsel has obtained the 
necessary security clearances and access to such evidence is 
consistent with regulations that the Secretary may prescribe to 
protect classified information; and (3) shall be provided to 
the accused in a redacted or summary form, if it is possible to 
do so without compromising intelligence sources, methods, or 
activities or other national security interests. Finally, this 
section would provide that a defense counsel who receives 
evidence under this subsection is not obligated to, and will 
not, disclose that evidence to the accused. The committee notes 
that this section makes clear that defense counsel is 
prohibited from sharing classified evidence with the accused 
and that this prohibition overrides any duty of communication 
that may be imposed by other federal or state law.

         Section 949k--Defense of Lack of Mental Responsibility

    This section would provide an affirmative defense in a 
trial by military commission under this chapter that, if 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. The section would also clarify that a 
mental disease or defect does not otherwise constitute a 
defense. The section would provide that 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. The section would require the military 
judge to instruct the members of the commission as to the 
defense of lack of mental responsibility under this section 
whenever the lack of mental responsibility of the accused with 
respect to an offense is properly at issue in a military 
commission under this chapter. The section would require the 
military judge to instruct the members that their options when 
the accused has properly raised the defense of lack of mental 
responsibility are to find the accused: (1) guilty; (2) not 
guilty; or (3) not guilty by reason of lack of mental 
responsibility. Finally, the section would require that the 
accused may be found not guilty by reason of lack of mental 
responsibility only if a majority of the members present at the 
time the vote is taken determine that the defense of lack of 
mental responsibility has been established.

                    Section 9491--Voting and Rulings

    This section would require that all votes by members of a 
military commission under this chapter on the findings and on 
the sentence will be by secret written ballot. This section 
would also require that the military judge in a military 
commission under this chapter will rule upon all questions of 
law, including the admissibility of evidence and all 
interlocutory questions arising during the proceedings. The 
section would also provide that 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. The section would also make it clear that 
a military judge may change his ruling at any time during the 
trial.
    This section would also require that before a vote is taken 
of the findings of a military commission under this chapter, 
the military judge will, in the presence of the accused and 
counsel, instruct the members as to the elements of the offense 
and charge them: (1) that the accused must be presumed to be 
innocent until his guilt is established by legal and competent 
evidence beyond 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.

                 Section 949m--Number of Votes Required

    This section would provide that two-thirds of the members 
present must vote for conviction to find the accused guilty of 
any offense. The section would also provide that a two-thirds 
vote of the members present is required for any sentence other 
than confinement for more than ten years, life imprisonment, or 
death. The section would require three-fourths of the members 
present to vote for a sentence of confinement for more than ten 
years or life imprisonment. The section would provide that no 
person may be sentenced to death unless: (1) the penalty of 
death is expressly authorized under this chapter for an offense 
and the accused is found guilty of that offense, (2) the trial 
counsel expressly sought the penalty of death by filing an 
appropriate notice in advance of trial, (3) the accused is 
convicted of the offense by the concurrence of all the members, 
and (4) all the members concur in the sentence of death.
    The section would further provide that 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. Finally, the section would provide that in any case in 
which the death penalty is sought and in which twelve members 
are not reasonably available because of physical conditions or 
military exigencies, the convening authority shall specify a 
lesser number of members for the military commission but with a 
minimum of nine members. The section would also provide that in 
a death penalty case in which twelve members are not available, 
the convening authority will make a detailed written statement 
stating why a greater number of members were not reasonably 
available and append the written statement to the record.

          Section 949n--Military Commission to Announce Action

    This section would require a military commission under this 
chapter to announce its findings and sentence to the parties as 
soon as determined.

                     Section 949o--Record of Trial

    This section would require each military commission 
established under this chapter to keep a separate, verbatim 
record of the proceeding in each case. This section would also 
require that a complete record of the proceedings and testimony 
be prepared for each military commission. Finally, this section 
would require that a copy of the record of the proceedings of 
the military commission be given to the accused as soon as it 
is authenticated. The section would require that the accused be 
given a redacted version of the record, if the record contains 
classified information or a classified annex. The section would 
also require that the Secretary of Defense prescribe 
regulations to provide a defense counsel who is eligible for 
access to classified information pursuant to this chapter to 
have access to the unredacted record.

                        Subchapter V--Sentences


         Section 949s--Cruel or Unusual Punishments Prohibited

    This section would prohibit the imposition of any cruel or 
unusual punishment under Chapter 47A. Prohibited punishments 
would include flogging, branding, marking, and tattooing on the 
body. This section would also prohibit the use of irons, single 
or double, except for the purpose of safe custody.

                      Section 949t--Maximum Limits

    This section would require that any punishment directed for 
an offense by a military commission under this chapter may not 
exceed any limits prescribed by the President or Secretary of 
Defense for that offense.

                 Section 949u--Execution of Confinement

    This section would authorize the Secretary of Defense to 
prescribe regulations for any sentence of confinement adjudged 
by a military commission under this chapter. This section would 
authorize confinement in any place of confinement under the 
control of any of the armed forces or in any penal or 
correctional institution under the control of the United States 
or its allies, or which the United States is allowed to use. 
This section would also require that any person confined under 
this chapter in a penal or correctional facility not under the 
control of the armed forces would be 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


          Section 950a--Error of Law; Lesser Included Offenses

    This section would provide that military commission 
decisions shall not be overturned based upon errors of law 
unless the error materially prejudices the rights of the 
accused. A reviewing authority that sets aside a guilty finding 
shall have the authority to impose a lesser included offense, 
where applicable.

            Section 950b--Review by the Convening Authority

    This section would require that the findings and sentence 
of a military commission under this chapter be reported in 
writing promptly to the convening authority after the 
announcement of the sentence. This section also provides that 
the accused may submit to the convening authority matters for 
consideration with respect to the findings and the sentence of 
the military commission under this chapter. This submission 
should be made in writing within 20 days after the accused has 
been given an authenticated record of trial (as referenced by 
section 949o(c) of this chapter); however, if the accused shows 
that additional time is required beyond the 20 days, the 
convening authority may, for good cause, extend the applicable 
period for not more than an additional 20 days. Alternatively, 
the accused may waive his right to make a submittal to the 
convening authority. Such a waiver must be made in writing and 
may not be revoked, and effectively terminates the accused's 
opportunity to request a 20 day extension.
    This section would permit the convening authority, in his 
sole discretion, to approve, disapprove, commute or suspend the 
sentence in whole or in part. The convening authority may not, 
however, increase a sentence beyond that which is found by the 
military commission, and is not required to take actions on the 
findings of a military commission under this chapter. Subject 
to regulations prescribed by the Secretary of Defense, action 
on the sentence may be taken only after consideration of any 
matters submitted by the accused or after the time for 
submitting such matters expires, whichever is earlier. If the 
convening authority takes action on the findings, the convening 
authority may, in his sole discretion, dismiss any charge or 
specification by setting aside a finding of guilty thereto; or 
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. Finally, the convening authority shall 
serve on the accused or on defense counsel notice of any action 
taken by the convening authority.
    This section would also permit the convening authority, in 
his sole discretion, to order a proceeding in revision or a 
rehearing. A proceeding in revision may be ordered by the 
convening authority if there is an apparent error or omission 
in the record or 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. In no case may a 
proceeding in revision reconsider a finding of not guilty of a 
specification or a ruling which amounts to a finding of not 
guilty; 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 increase the severity of the sentence unless the sentence 
prescribed for the offense is mandatory. 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. A rehearing as to the findings 
may not be ordered by the convening authority, however, when 
there is a lack of sufficient evidence in the record to support 
the findings. Similarly, if the convening authority disapproves 
the sentence, he may order a rehearing as to the sentence or he 
may dismiss the charges.

    Section 950c--Appellate Referral; Waiver or Withdrawal of Appeal

    This section would provide an automatic review by the Court 
of Military Commission Review in each case in which the final 
decision of a military commission (as approved by the convening 
authority) includes a finding of guilty. The convening 
authority shall refer the case to the Court of Military 
Commission Review, in accordance with procedures prescribed 
under regulations of the Secretary of Defense. This section 
would also provide, except in a case in which the sentence as 
approved extends to death, the accused may file with the 
convening authority a statement expressly waiving the right of 
the accused to such review, which will bar the Court of 
Military Commission Review from reviewing the case. Such a 
waiver shall be signed by both the accused and a defense 
counsel, and must be filed, if at all, within 10 days after 
notice on the action is served on the accused or on defense 
counsel. The convening authority, for good cause, may extend 
the period for such filing by not more than 30 days. 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.

               Section 950d--Appeal by the United States

    This section would grant the United States the right to 
take an interlocutory appeal based upon the military judge's 
decision to terminate commission proceedings on any charge or 
specification; to exclude evidence that is substantial proof of 
a military fact; and matters dealing with excluding the accused 
from certain proceedings, continuances or challenges. To make 
such an appeal the United States shall file a notice of appeal 
with the military judge within five days after the date of such 
order or ruling. In ruling on an appeal under this section, the 
Court of Military Commission Review may act only with respect 
to matters of law. The United States may not appeal 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. 
Finally this section would also permit the United States to 
appeal an adverse ruling from the Court of Military Commission 
Review to the United States Court of Appeals for the District 
of Columbia Circuit by filing a petition for review in the 
Court of Appeals within ten days after the date of such ruling. 
Review under this subsection shall be at the discretion of the 
Court of Appeals.

                        Section 950e--Rehearings

    This section would provide for procedures for rehearing, 
should the accused be successful on appeal. The commission 
shall be composed of new members, and the commission may not 
find guilt or impose a greater sentence as to any offense 
previously adjudged on the merits by the prior commission. In 
the event the sentence is based upon a finding of guilty of an 
offense not considered upon the merits in the original 
proceeding or the sentence prescribed for the offense is 
mandatory, the rehearing may impose a sentence in excess or 
more than the original sentence.

      Section 950f--Review by Court of Military Commission Review

    This section would create a Court of Military Commission 
Review within the Department of Defense. The Secretary of 
Defense shall establish a Court of Military Commission Review 
which shall be composed of one or more panels, with each panel 
consisting of not less than three appellate military judges. In 
accordance with rules prescribed by the Secretary, the court 
may sit in panels or as a whole for the purpose of reviewing 
military commission decisions. This section would also require 
the Secretary of Defense to assign appellate military judges to 
a Court of Military Commission Review. Appellate military 
judges shall meet the qualifications for military judges 
prescribed for a military judge of a military commission or 
shall be a civilian with comparable qualifications. No person 
may be appointed to serve as an appellate military judge in any 
case in which that person acted as a military judge, counsel, 
or reviewing official. Finally, this section would require the 
Court of Military Commission Review, in accordance with 
procedures and regulations prescribed by the Secretary, to 
review the record in each case that is referred to the Court by 
the convening authority with respect to any matter of law 
raised by the accused. The Court of Military Commission Review 
may act only with respect to matters of law.

  Section 950g--Review by the United States Court of Appeals for the 
   District of Columbia Circuit and the Supreme Court of the United 
                                States.

    This section would grant the accused the right to appeal 
his conviction to the United States Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) which shall have 
exclusive jurisdiction to determine the validity of a final 
judgment rendered by a military commission (as approved by the 
convening authority). The D.C. Circuit may not review the final 
judgment until all other appeals under this chapter have been 
waived or exhausted, and a petition for review was filed by the 
accused in the D.C. Circuit not later than 20 days after the 
date on which written notice of the final decision of the Court 
of Military Commission Review is served on the accused or on 
defense counsel or the accused submits a written notice waiving 
the right of the accused to review by the Court of Military 
Commission Review. The D.C. Circuit may act only with respect 
to matters of law, and the jurisdiction of the D.C. Circuit 
should be limited to the consideration of whether the final 
decision was consistent with the standards and procedures for 
military commissions and to the extent applicable, the 
Constitution.
    The committee notes that Congress has already determined in 
section 1005 of the Detainee Treatment Act (DTA) of 2005 
(Public Law 109-148) that review of military commission 
judgments should lie in the D.C. Circuit. The committee also 
notes that the D.C. Circuit has acquired experience in recent 
years handling cases brought by individuals detained at 
Guantanamo Bay, Cuba such as the Hamdan, and believes that the 
most important appellate questions to come will involve 
military commission procedures, such as those concerning the 
limited exclusion of the accused, that may have no clear 
analogue with the procedures set out in Chapter 47 of Title 10, 
United States Code. Therefore, this chapter would preserve 
existing review procedures under the DTA, but would expand the 
right of the accused to appeal regardless of the length of his 
sentence.
    Finally, this section would permit the Supreme Court to 
review by writ of certiorari the final judgment of the D.C. 
Circuit.

                    Section 950h--Appellate Counsel

    This section would provide for the appointment of appellate 
counsel to represent the accused and the United States in any 
appeal or review under this chapter. Appellate counsel 
appointed representing the United States shall represent the 
United States in any appeal or review proceeding before the 
Court of Military Commission Review, and may, when requested to 
do so by the Attorney General in a case arising under this 
chapter, represent the United States before the United States 
Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit) or the Supreme Court.
    Appellate Counsel for the accused shall be represented 
before the Court of Military Commission Review, the D.C. 
Circuit, and the Supreme Court, and by civilian counsel if 
retained by the accused. Any such civilian counsel shall be 
subject to the same requirements and qualifications for 
civilian counsel appearing before military commissions. 
Finally, the accused must at all times have appellate counsel 
with sufficient security clearance to participate in any 
proceeding with respect to classified information.

      Section 950i--Execution of Sentence; Suspension of Sentence

    This section would provide that a death sentence may not be 
executed until the judgment is final and approved by the 
President. A judgment is final in the case of a death sentence 
when the time for the accused to file a petition for review by 
the Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit) has expired and the accused has not filed a timely 
petition for such review, and the case is not otherwise under 
review by that Court, or review is completed in accordance with 
the judgment of the D.C. Circuit and a petition for a writ of 
certiorari is not timely filed, such a petition is denied by 
the Supreme Court or review is otherwise completed in 
accordance with the judgment of the Supreme Court. Finally, 
this section would permit the Secretary of the Defense, or the 
convening authority acting on the case (if other than the 
Secretary), to suspend the execution of any sentence or part 
thereof in the case, except a sentence of death.

     Section 950j--Finality of Proceedings, Findings, and Sentences

    This section would provide that 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 are binding upon all departments, courts, agencies, 
and officers of the United States, except as otherwise provided 
by the President. Finally this section would state that 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 the enactment of 
the Military Commissions Act of 2006, 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


            Section 950p--Statement of Substantive Offenses

    This section would 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. Because the provisions of this subchapter 
(including provisions that incorporate definitions in other 
provisions of law) are declarative of existing law, the 
committee firmly believes that trial for crimes that occurred 
before the date of the enactment of this chapter might be 
prosecuted with this subchapter.
    The committee notes that although the offenses subject to 
trial by military commissions have generally been identified 
based upon the common law of armed conflict, this Act codifies 
a list of offenses triable by military commissions. The list of 
offenses tracks those provided for under Department of Defense 
Military Commission Instruction No. 2, April 30, 2003, which is 
based upon international treaties and U.S. criminal law. The 
offenses defined here are not new crimes, but rather reflect 
the codification of the law of war into the United States Code 
pursuant to Congress's constitutional authority to ``Define and 
Punish * * * Offences against the Law of Nations.'' U.S. 
Constitution article I, section 8. Because the provisions are 
declarative of existing law, the committee believes that trial 
for crimes that occurred prior to the Act's effective date is 
not precluded.

             Section 950q--Statement of Substantive Offense

    This section would provide that an individual may be guilty 
as a principal if he commits an offense, is an accessory to an 
offense, or directs the commission of an offense. In addition, 
under the principle of ``command responsibility,'' a commander 
may be guilty of a war crime where he knew, or should have 
known, that his subordinate was about to commit, or had 
committed, an offense, yet failed to take the necessary and 
reasonable measures to prevent or punish the offense.

                 Section 950r--Accessory After the Fact

    This section provides for punishment as an accessory after 
the fact.

          Section 950s--Conviction of Lesser Included Offense

    This section would provide that an individual may be 
convicted of a lesser included offense, where appropriate.

                         Section 950t--Attempts

    This section would provide for the circumstances under 
which an individual may be convicted of an attempt to commit an 
offense under this chapter.

                       Section 950u--Solicitation

    This section would provide that an individual may be 
convicted for the crime of solicitation if he solicits or 
advises another to commit one or more substantive offenses 
triable by military commission.

          Section 950v--Crimes Triable by Military Commissions

    This section would enumerate 27 substantive offenses 
triable by military commission.
    The committee notes that in light of the common law origins 
of the war crimes, no list of offenses is likely to be entirely 
complete. Nonetheless, the committee believes the list codifies 
offenses hitherto recognized as offenses triable by military 
commissions or international courts. Most of the listed 
offenses constitute clear violations of the Geneva Conventions, 
the Hague Convention, or both. Several constitute ``modern-day 
war crimes,'' such as hijacking and terrorism, which constitute 
practices contrary to the law of nations that can, and hereby 
do, have the same status as traditional war crimes. In Hamdan, 
the Supreme Court left open the question as to whether 
conspiracy to commit a war crime itself constituted a 
substantive offense. For the reasons stated in Justice Thomas's 
opinion, the Committee views conspiracy as a separate offense 
punishable by military commissions.

            Section 950w--Perjury and Obstruction of Justice

    This section would provide, as incident to the power to 
protect the integrity of their proceedings, the military 
commission shall have the authority to try perjury and 
obstruction of justice related to military commissions and 
offenses triable by commission.

                         Section 950x--Contempt

    This section would provide for the military commission's 
authority to punish contempt of its proceedings.

Section 4--Clarification of conduct constituting war crime offense 
        under federal criminal code

    This section would amend subsection 2441(c) of title 18, 
United States Code, (War Crimes Act of 1996, Public Law 105-
118) defining a war crime Code conduct which constitutes a 
serious violation of Common Article 3 of the Geneva Convention. 
In particular, torture, cruel or inhuman treatment, performing 
biological experiments, murder, mutilation or maiming, 
intentionally causing great suffering or serious injury, rape, 
sexual assault or abuse, and taking hostages are codified and 
defined in this section as conduct which constitutes a war 
crime. The section would also make the amendment apply 
retroactively to the date of enactment of the War Crimes Act, 
November 26, 1997. The committee notes that because no person 
has been prosecuted under the War Crimes Act, this amendment 
can apply as if enacted on November 26, 1997.
    The committee also notes that United States' treaty 
obligations require that the United States criminalize the 
grave breaches of the Geneva Conventions, which include certain 
serious violations of Common Article 3. The War Crimes Act goes 
further and makes any violation of Common Article 3 a war 
crime. These statutes, however, give no more specific guidance 
as to what conduct constitutes a violation. The Supreme Court 
held in Hamdan that Common Article 3 applies to the conflict 
against al Qaeda; therefore, the committee believes it is 
imperative that the statute provide clear notice to United 
States personnel charged with interrogating detainees. The 
committee's intent, therefore, is that this section provide 
clarity and certainty with respect to the serious violations of 
Common Article 3 that are punishable as war crimes under 
section 1441(c), title 18, United States Code. The Act does not 
specifically provide for a general crime of ``outrages upon 
personal dignity'', as provided in Common Article 3, because 
the committee believes it is nearly impossible to define an 
``outrage'' as a general matter without resorting to the very 
kind of vague language that this provision seeks to replace. 
Instead, this section would identify and criminalize three 
serious and clear outrages upon personal dignity: biological 
experimentation, rape, and sexual assault. The statute 
similarly does not criminalize the passing of a sentence absent 
a regularly constituted court because of the difficulty in 
defining what constitutes a ``regularly constituted court;'' an 
execution carried out pursuant to the sentence of an irregular 
tribunal would clearly be proscribed under this section as 
murder.

Section 5--Judicial Review

    This section would amend section 2241 of title 28, United 
States Code, to prohibit any court, justice, or judge except 
the United States Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) the jurisdiction to hear or consider any 
claim or cause of action, including an application for a writ 
of habeas corpus, pending on or filed after the date of 
enactment of H.R. 6054, against the United States or its 
agents, brought by or on behalf of any alien detained by the 
United States as an unlawful enemy combatant, relating to any 
aspect of the alien's detention, transfer, treatment, or 
conditions of confinement. This section would provide that the 
D.C. Circuit will review two causes of action for these aliens: 
(1) exclusive jurisdiction to determine the validity of any 
final decision of a Combatant Status Review Tribunal (CSRT); 
and (2) final judgments of military commissions as provided for 
pursuant to section 950g of title 10, United States Code (as 
added by section 950g of Section 3 of this Act). Finally, the 
section would provide that the D.C. Circuit may consider 
classified information submitted in camera and ex parte in 
making any determination under this section.
    The committee notes that this section would clarify an 
ambiguity noted by the Supreme Court in Hamdan v. Rumsfeld, 548 
U.S. at___, by amending the judicial review provisions of the 
Detainee Treatment Act (DTA) of 2005 (Public Law 109-148) 
codified in section 2241, title 28 of the United States Code. 
The DTA provided that the D.C. Circuit would have jurisdiction 
over determination of CSRTs for enemy combatants detained at 
the U.S. Naval Base, Guantanamo Bay, Cuba and final judgments 
of military commissions, and that all other courts would be 
foreclosed from hearing habeas corpus petitions or any other 
civil actions brought by enemy combatants in U.S. custody. The 
committee notes its intention to make clear through this 
section that except for the specific review provided by the 
DTA, that is review of final judgments by CSRTs and final 
judgments of military commissions, this section forecloses any 
legal claim, including applications for the writ of habeas 
corpus, brought on by or on behalf of these detainees. The 
committee notes its intention that judicial review of detention 
and military commission is channeled through the adequate 
alternative procedures provided by this Act and the DTA.
    The committee further notes that the scope of CSRT review 
is defined in section 1005(e)(2) of the DTA. Section 1005(e)(2) 
provided that the D.C. Circuit would have exclusive 
jurisdiction to determine the validity of any final decision by 
a CSRT that an alien is properly detained at the U.S. Naval 
Base Guantanamo Bay, Cuba, as an enemy combatant. The CSRT 
process was established by Deputy Secretary of Defense Order 
dated July 7, 2004. The purpose of the process is to determine 
if the individuals detained by the Department of Defense at the 
U.S. Naval Base Guantanamo Bay, Cuba are properly classified as 
enemy combatants and to permit each detainee the opportunity to 
contest such designation. An ``enemy combatant'' for the 
purpose of a CSRT review is ``an individual who was part of or 
supporting Taliban or al Qaeda forces, or associated forces 
that are engaged in hostilities against the United States or 
its coalition partners. This includes any person who has 
committed a belligerent act or has directly supported 
hostilities in aid of enemy armed forces.'' The D.C. Circuit's 
jurisdiction is limited to claims brought by or on behalf of an 
alien: (1) who at the time of the request for a review by the 
D.C. Circuit is filed is detained by the Department of Defense 
at Guantanamo Bay, Cuba; and (2) for whom a CSRT has been 
conducted, pursuant to procedures specified by the Secretary of 
Defense. The scope of the D.C. Circuit's review has been 
amended by section 950g(c) of this Act.

Section 6--Satisfaction of Treaty Obligations

    This section would establish that compliance with section 
1003 of the Detainee Treatment Act of 2005 (Public Law 109-148) 
fully satisfies the obligations of the United States with 
regard to section 1 of Common Article 3 of the Geneva 
Conventions, and would prohibit any court from treating the 
Geneva Conventions as a source of rights, directly or 
indirectly, making clear that the Geneva Conventions are not 
judicially enforceable in any court of the United States.
    The committee believes the treaty obligations of the United 
States under the Geneva Conventions should be codified in 
United States law. Therefore, this section would establish that 
compliance with section 1003 of the Detainee Treatment Act of 
2005 (DTA) fully satisfies the obligations of the United States 
with regard to section 1 of Common Article 3 of the Geneva 
Conventions. Like the DTA, Common Article 3 provides a baseline 
standard for detainees in armed conflicts where it applies. 
Unlike the DTA, however, several provisions of Common Article 3 
are vague, particularly its prohibition upon ``outrages upon 
personal dignity, in particular humiliating and degrading 
treatment.'' This section would define Common Article 3's 
treatment standards by reference to the DTA, which is based 
upon the familiar standards of the U.S. Constitution. Moreover, 
``cruel, inhuman, and degrading treatment or punishment'' under 
this section means the cruel, unusual, inhumane treatment or 
punishment prohibited by the Fifth, Eighth, and Fourteenth 
Amendments to the Constitution, 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 (CAT) done at New 
York, December 10, 1984. The committee believes that the 
Constitution, which provides the fundamental, underlying 
protections for the citizens of the United States, provides 
more than sufficient protections to satisfy the United States' 
treaty obligation under the Geneva Common Article 3. The 
committee does not believe that detainees--especially unlawful 
enemy combatants--should enjoy protections that exceed what the 
Constitution provides to United States citizens. Finally, the 
parts of Common Article 3 that concern the taking of hostages 
and the passing of sentences by regularly constituted courts do 
not concern detainee treatment and therefore are specifically 
excepted from this provision.
    The committee also believes that while this section 
prohibits any court from treating the Geneva Conventions as a 
source of rights, this section does not affect the obligations 
of the United States under the Geneva Conventions; to the 
contrary, the committee believes that the political branches of 
the United States remain fully bound by, and will continue to 
honor, the Conventions whenever and wherever they apply.

Section 7--Revisions to Detainee Treatment Act of 2005 relating to 
        protection of certain United States Government personnel

    This section would amend section 1004(b) of the Detainee 
Treatment Act (DTA) of 2005 (Public Law 109-148) to enhance the 
protection of U.S. government personnel engaged in authorized 
interrogations. The committee notes that section 1004(b) of the 
DTA provides counsel in any civil action or criminal 
prosecution against a member of the armed forces or other agent 
of the United States government arising involving certain 
interrogation procedures of aliens determined by the government 
to be international terrorists. This section would provide that 
the provision of counsel under section 1004(b) is mandatory, 
that the right to counsel includes investigations, and that the 
right applies to foreign and international courts or agencies. 
This section would further provide that the affirmative defense 
provided in section 1004(a) of the DTA and the right to counsel 
provided in section 1004(b) of the DTA applies to any criminal 
prosecution that: (1) related to the detention and 
interrogation of aliens described in such section, (2) is 
grounded in section 2441(c)(3) of title 18, United States Code 
(as amended by section 4 of this Act), and (3) relates to 
actions occurring between September 11, 2001, and December 30, 
2005.

Section 8--Retroactive applicability

    This section would clarify that the Act retroactively 
applies ``to any aspect of detention, treatment or trial of any 
alien detained at any time since September 11, 2001.'' This 
section further states that the Act applies to any case, 
pending or not, whether filed before or after the effective 
date of the Act.
    The committee notes that this provision is designed to make 
clear that jurisdiction inconsistent with this Act is removed 
for all pending cases and that the standards prescribed in this 
Act shall apply to all future cases, no matter when the conduct 
at issue occurred.

                        EXECUTIVE COMMUNICATION

                                     Department of Defense,
                                Washington, DC, September 13, 2006.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: We understand that the Congress is 
considering legislation proposed by the Administration in 
response to the recent Supreme Court decision in Hamdan.
    We would like to clarify our views on two specific sections 
of the proposed legislation. We do not object to section 6 of 
the Administration proposal, which would clarify the 
obligations of the United States under common Article 3 of the 
Geneva Conventions, and section 7 of the Administration 
proposal, which would address crimes under the War Crimes Act. 
Indeed, we think these provisions would be helpful to our 
fighting men and women at war on behalf of our Country.
            Sincerely,
                                   Scott Black,
                                           Major General, U.S. Army, 
                                               The Judge Advocate 
                                               General.
                                   Charles J. Dunlap, Jr.,
                                           Major General, U.S. Air 
                                               Force, The Deputy Judge 
                                               Advocate General.
                                   Bruce MacDonald,
                                           Rear Admiral, U.S. Navy, The 
                                               Judge Advocate General.
                                   James C. Walker,
                                           Brigadier General, U.S. 
                                               Marine Corps, Staff 
                                               Judge Advocate to the 
                                               U.S. Marine Corps.
                                   Ronald M. Reed,
                                           Colonel, U.S. Air Force, 
                                               Legal Counsel to the 
                                               Chairman of the Joint 
                                               Chiefs of Staff.

                  COMMUNICATION FROM ANOTHER COMMITTEE

                          House of Representatives,
                      Committee on International Relations,
                                Washington, DC, September 15, 2006.
Hon. Duncan Hunter
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
    Dear Chairman Hunter: I am writing to you concerning the 
bill H.R. 6054 ``Military Commissions Act of 2006'' There are 
certain provisions in the legislation which fall within the 
Rule X jurisdiction of the Committee on International Relations 
upon which the Speaker bases his referral to this Committee.
    In the interest of permitting your Committee to proceed 
expeditiously to floor consideration of this important bill, I 
am willing to waive this Committee's right to consider it. I do 
so with the understanding that by waiving consideration of the 
bill the Committee on International Relations does not waive 
any future jurisdictional claim over the subject matters 
contained in the bill which fall within its Rule X 
jurisdiction. I request that you to urge the Speaker to name 
Members of this Committee to any conference committee which is 
named to consider any such provisions.
    Please place this letter into the Committee report on H.R. 
6054 and into the Congressional Record during consideration of 
the measure on the House floor. Thank you for the cooperative 
spirit in which you have worked regarding this matter and 
others between our respective committees.
    With best wishes,
            Sincerely,
                                           Henry J. Hyde, Chairman.

                           COMMITTEE POSITION

    On September 13, 2006, the Committee on Armed Services, a 
quorum being present, reported H.R. 6054, as amended, favorably 
by a record vote of 52 ayes to 8 noes with 1 voting present.

                  CONGRESSIONAL BUDGET OFFICE ESTIMATE

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the cost estimate prepared by 
the Congressional Budget Office and submitted pursuant to 
section 402(a) of the Congressional Budget Act of 1974 is as 
follows:

                                                September 15, 2006.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 6054, the Military 
Commissions Act of 2006.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jason 
Wheelock.
            Sincerely,
                                                  Donald B. Marron,
                                                   Acting Director.
    Summary: H.R. 6054 would authorize the President to 
establish military commissions to try unlawful combatants for a 
number of offenses including terrorism, hijacking, and the 
murder of non-combatants. The bill would set out the rules and 
procedures for such trials, including the process for assigning 
counsel and compelling witnesses and evidence, the rules of 
evidence, and post-trial reviews and appeals. H.R. 6054 also 
would amend the U.S. criminal code to retroactively specify 
which actions under the Geneva Convention would be considered 
criminal acts for which the U.S. Armed Forces or other U.S. 
nationals could be prosecuted. The bill would apply to 
detention, treatment, or trial of any person detained since 
September 11, 2001.
    CBO estimates that implementing H.R. 6054 would cost $21 
million in 2007 and $141 million over the 2007-2011 period, 
assuming the appropriation of necessary funds. Enacting H.R. 
6054 would not affect direct spending or revenues.
    H.R. 6054 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated Cost to the Federal Government: The estimated 
budgetary impact of H.R. 6054 is shown in the following table. 
The costs of this legislation fall within budget function 050 
(national defense).

------------------------------------------------------------------------
                                      By fiscal year, in millions of
                                                 dollars--
                                 ---------------------------------------
                                   2007    2008    2009    2010    2011
------------------------------------------------------------------------
              CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level         29      30      31      31      32
Estimated Outlays                     21      28      29      31      32
------------------------------------------------------------------------

    Basis of Estimate: Pursuant to the President's Military 
Order on November 21, 2001, the Secretary of Defense 
established the Office of Military Commissions (OMC) within the 
Defense Legal Services Agency of the Department of Defense 
(DoD). Prior to the U.S. Supreme Court's decision on June 29, 
2006, that prohibited the use of military commissions to try 
unlawful combatants, the OMC was responsible for trying 
unlawful combatants detained by DoD.
    To date in fiscal year 2006, the OMC has received 
approximately $27 million in appropriations from the fiscal 
year 2006 Defense Appropriations Act (Public Law 109-148) and 
the 2006 Emergency Supplemental for Defense, the Global War on 
Terror, and Hurricane Recovery (Public Law 109-234). Those 
amounts cover expenses for salaries and benefits of civilian 
personnel, travel, contractual services, equipment and 
supplies. In addition, the OMC has also used 10 to 15 reserve 
Judge Advocates to assist the OMC in preparing and trying 
cases. Based upon prior costs and staffing levels, CBO 
estimates that implementing H.R. 6054 would cost $21 million in 
2007 and $141 million over the 2007-2011 period, assuming the 
appropriation of necessary funds.
    CBO assumes for the purposes of this estimate that, if 
legislation is not enacted authorizing the use of military 
commissions to try unlawful combatants detained by the United 
States, the OMC will be dissolved and the United States would 
continue to hold those detainees who would have been tried. 
Thus, the estimated costs of the bill reflect only the 
incremental costs for conducting such trials.
    Section 4 of H.R. 6054 would change the U.S. criminal code 
to specify which actions under the Geneva Convention would be 
considered criminal acts for which the U.S. Armed Forces or 
other U.S. nationals could be prosecuted. We expect that 
section 4 would apply to a relatively small number of cases. 
Thus, any resulting in change in costs for law enforcement, 
court proceedings, or prison operations would not be 
significant.
    Section 6 of would specify that section 1003 of the 
Detainee Treatment Act of 2005 would satisfy U.S. obligations 
with respect to the standards for treatment under Common 
Article 3 under the Geneva Conventions. If enacted, this 
section may provide more latitude to the United States in the 
treatment and interrogation of detainees. Section 7 of the bill 
would expand the conditions under which the government would 
provide funds and personnel to defend certain government 
employees who are being investigated or prosecuted in a matter 
related to the detention and interrogation of certain 
detainees. CBO has no basis for estimating the potential cost 
of those sections.
    Intergovernemental and Private-Sector Impact: H.R. 6054 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Estimate Prepared By: Federal Costs: Jason Wheelock, Impact 
on State, Local, and Tribal Governments: Melissa Merrell, 
Impact on the Private Sector: Victoria Liu.
    Estimate Approved By: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                        COMMITTEE COST ESTIMATE

    Pursuant to clause 3(d) of rule XIII of the Rules of the 
House of Representatives, the committee generally concurs with 
the estimate as contained in the report of the Congressional 
Budget Office.

                           OVERSIGHT FINDINGS

    With respect to clause 3(c)(1) of rule XIII of the Rules of 
the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities pursuant to clause 2(b)(1) of rule X, are 
incorporated in the descriptive portions of this report.
    With respect to clause 3(c)(2) of rule XIII of the Rules of 
the House of Representatives, this legislation does not include 
any new spending or credit authority, nor does it provide for 
any increase or decrease in tax revenues or expenditures.
    With respect to clause 3(c)(4) of rule XIII of the Rules of 
the House of Representatives, the bill does not authorize 
specific program funding.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds the authority for 
this legislation in Article I, section 8 of the United States 
Constitution.

                                EARMARKS

    Pursuant to House Resolution 1000, entitled Providing for 
earmarking reform in the House of Representatives, adopted on 
September 14, 2006, the committee finds that there are no 
earmarks contained in this legislation.

                     STATEMENT OF FEDERAL MANDATES

    Pursuant to section 423 of Public Law 104-4, this 
legislation contains no federal mandates with respect to state, 
local, and tribal governments, nor with respect to the private 
sector. Similarly, the bill provides no unfunded federal 
intergovernmental mandates.

                              RECORD VOTES

    In accordance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, record and voice votes were taken 
with respect to the committee's consideration of H.R. 6054. The 
record of these votes is attached to this report.
    The committee ordered H.R. 6054, as amended, reported to 
the House with a favorable recommendation by a vote of 52-8-1, 
a quorum being present.


         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

TITLE 10, UNITED STATES CODE

           *       *       *       *       *       *       *



SUBTITLE A--General Military Law

           *       *       *       *       *       *       *


                           PART II--PERSONNEL

Chap.                                                               Sec.
      Enlistments....................................................501
     * * * * * * *
      Military Commissions..........................................948a
     * * * * * * *

                           PART II--PERSONNEL

Chap.                                                               Sec.
      Enlistments....................................................501
     * * * * * * *
      Military Commissions..........................................948a
     * * * * * * *

CHAPTER 47--UNIFORM CODE OF MILITARY JUSTICE

           *       *       *       *       *       *       *


SUBCHAPTER I--GENERAL PROVISIONS

           *       *       *       *       *       *       *


Sec. 802. Art. 2. Persons subject to this chapter

  (a) The following persons are subject to this chapter:
          (1) * * *

           *       *       *       *       *       *       *

          (13) Lawful enemy combatants who violate the law of 
        war.

           *       *       *       *       *       *       *


SUBCHAPTER IV--COURT-MARTIAL JURISDICTION

           *       *       *       *       *       *       *


Sec. 821. Art. 21. Jurisdiction of courts-martial not exclusive

  The provisions of this chapter conferring jurisdiction upon 
courts-martial do not deprive military commissions, provost 
courts, or other military tribunals of concurrent jurisdiction 
with respect to offenders or offenses that by statute or by the 
law of war may be tried by military commissions, provost 
courts, or other military tribunals. This section does not 
apply to military commissions established under chapter 47A of 
this title.

           *       *       *       *       *       *       *


SUBCHAPTER VII--TRIAL PROCEDURE

           *       *       *       *       *       *       *


Sec. 836. Art. 36. President may prescribe rules

  (a) Pretrial, trial, and post-trial procedures, including 
modes of proof, for cases arising under this chapter triable in 
courts-martial, military commissions and other military 
tribunals, and procedures for courts of inquiry, may be 
prescribed by the President by regulations which shall, so far 
as he considers practicable, apply the principles of law and 
the rules of evidence generally recognized in the trial of 
criminal cases in the United States district courts, but which 
may not, except as provided in chapter 47A of this title, be 
contrary to or inconsistent with this chapter.
  (b) All rules and regulations made under this article shall 
be uniform insofar as practicable, except insofar as applicable 
to military commissions established under chapter 47A of this 
title.

           *       *       *       *       *       *       *


                   CHAPTER 47A--MILITARY COMMISSIONS

Subchapter
      General Provisions...........................................948a 
      Composition of Military Commissions..........................948h 
      Pre-Trial Procedure..........................................948q 
      Trial Procedure..............................................949a 
      Sentences....................................................949s 
      Post-Trial Procedure and Review of Military Commissions......950a 
      Punitive Matters.............................................950p 

                    SUBCHAPTER I--GENERAL PROVISIONS

Sec.
948a. Definitions.
948b. Military commissions generally.
948c. Persons subject to military commissions.
948d. Jurisdiction of military commissions.
948e. Annual report to congressional committees.

Sec. 948a. Definitions

  In this chapter:
          (1) Unlawful enemy combatant.--(A) The term 
        ``unlawful enemy combatant'' means an individual 
        determined by or under the authority of the President 
        or the Secretary of Defense--
                  (i) to be part of or affiliated with a force 
                or organization (including al Qaeda, the 
                Taliban, any international terrorist 
                organization, or associated forces) that is 
                engaged in hostilities against the United 
                States or its co-belligerents in violation of 
                the law of war;
                  (ii) to have committed a hostile act in aid 
                of such a force or organization so engaged; or
                  (iii) to have supported hostilities in aid of 
                such a force or organization so engaged.
          (B) Such term includes any individual determined by a 
        Combatant Status Review Tribunal before the date of the 
        enactment of the Military Commissions Act of 2006 to 
        have been properly detained as an enemy combatant.
          (C) Such term does not include any alien determined 
        by the President or the Secretary of Defense (whether 
        on an individualized or collective basis), or by any 
        competent tribunal established under their authority, 
        to be--
                  (i) a lawful enemy combatant (including a 
                prisoner of war); or
                  (ii) a protected person whose trial by a 
                military commission under this chapter would be 
                inconsistent with Articles 64 through 76 of the 
                Geneva Convention Relative to the Protection of 
                Civilian Persons in Time of War of August 12, 
                1949.
          (D) For purposes of subparagraph (C)(ii), the term 
        ``protected person'' refers to the category of persons 
        described in Article 4 of the Geneva Convention 
        Relative to the Protection of Civilian Persons in Time 
        of War of August 12, 1949.
          (2) Lawful enemy combatant.--The term ``lawful enemy 
        combatant'' means an individual determined by or under 
        the authority of the President or Secretary of Defense 
        (whether on an individualized or collective basis) to 
        be--
                  (A) a member of the regular forces of a State 
                party engaged in hostilities against the United 
                States or its co-belligerents;
                  (B) a member of a militia, volunteer corps, 
                or organized resistance movement belonging to a 
                State party engaged in such hostilities, which 
                are under responsible command, wear a fixed 
                distinctive sign recognizable at a distance, 
                carry their arms openly, and abide by the law 
                of war; or
                  (C) a member of a regular armed forces who 
                professes allegiance to a government engaged in 
                such hostilities, but not recognized by the 
                United States.
          (3) Geneva conventions.--The term ``Geneva 
        Conventions'' means the international conventions 
        signed at Geneva on August 12, 1949, including Common 
        Article 3.
          (4) 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)).
          (5) Alien.--The term ``alien'' means an individual 
        who is not a citizen of the United States.

Sec. 948b. Military commissions generally

  (a) Authority for Military Commissions Under This Chapter.--
The President is authorized to establish military commissions 
for violations of offenses triable by military commission as 
provided in this chapter.
  (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, including any construction or application of 
such chapter and any administrative practice under such 
chapter, does not apply to trial by military commission under 
this chapter.
  (c) Status of 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.

Sec. 948c. Persons subject to military commissions

  Any alien unlawful enemy combatant is subject to trial by 
military commission under 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 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 military commission under this chapter 
may, under such limitations as the Secretary of Defense may 
prescribe, adjudge any punishment not forbidden by this 
chapter, including the penalty of death when authorized under 
this chapter.

Sec. 948e. Annual report to congressional committees

  (a) 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 under this chapter during such year.
  (b) Form.--Each report under this section shall be submitted 
in unclassified form, but may include a classified annex.

           SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS

Sec.
948h. Who may convene military commissions.
948i. Who may serve on military commissions.
948j. Military judges.
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.
  (b) Detail of Members.--When convening a military commission 
under this chapter, the convening authority shall detail as 
members of the commission such members of the armed forces 
eligible under subsection (a), as in the opinion of the 
convening authority, are fully qualified for the duty by reason 
of age, education, training, experience, length of service, and 
judicial temperament. No member of an armed force 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 judges

  (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) Qualifications.--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 of the commission 
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 of the 
commission.
  (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 against the accused.
  (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 commissions.
  (b) Trial Counsel.--Subject to subsection (d), trial counsel 
detailed for a military commission under this chapter must be--
          (1) a judge advocate (as that term is defined in 
        section 801 of this title (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 (d), 
military defense counsel detailed for a military commission 
under this chapter must be a judge advocate (as so defined) who 
is--
          (1) a graduate of an accredited law school or 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) 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 
commission qualified court reporters, who shall make a verbatim 
recording of the proceedings of and testimony taken before the 
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 
commission and, as necessary, for trial counsel and defense 
counsel.
  (c) Transcript; Record.--The transcript of a military 
commission under this chapter shall be under the control of the 
convening authority of the commission, who shall also be 
responsible for preparing the record of the proceedings.

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.
  (2) In a case in which the death penalty is sought, the 
military commission shall have the number of members prescribed 
by section 949m(c) of this title.
  (b) Excuse of Members.--No member of a military commission 
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; treatment of statements 
          obtained by torture and other statements.
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 the 
        signer's 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 against him as soon as 
practicable.

Sec. 948r. Compulsory self-incrimination prohibited; treatment of 
                    statements obtained by torture and other statements

  (a) In General.--No person shall be required to testify 
against himself at a proceeding of a military commission under 
this chapter.
  (b) Exclusion of Statements Obtained by Torture.--A statement 
obtained by use of torture, whether or not under color of law, 
shall not be admissible against the accused in a military 
commission under this chapter, except against a person accused 
of torture as evidence the statement was made.
  (c) Other Statements.--An otherwise admissible statement, 
including a statement allegedly obtained by coercion, shall not 
be admitted in evidence in a military commission under this 
chapter if the military judge finds that the circumstances 
under which the statement was made render the statement 
unreliable or lacking in probative value.
  (d) Torture.--In this section, the term ``torture'' has the 
meaning given that term in section 2340 of title 18.

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. Such charges shall be served in 
English and, if appropriate, in another language that the 
accused understands. Such service shall be made 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.--Pretrial, trial, and post-trial procedures, 
including elements and modes of proof, for cases triable by 
military commission under this chapter shall be prescribed by 
the Secretary of Defense, but may not be contrary to or 
inconsistent with this chapter.
  (b) Rules of Evidence.--(1) Subject to such exceptions and 
limitations as the Secretary may prescribe by regulation, 
evidence in a military commission under this chapter shall be 
admissible if the military judge determines that the evidence 
would have probative value to a reasonable person.
  (2) Hearsay evidence is admissible unless the military judge 
finds that the circumstances render the evidence unreliable or 
lacking in probative value. However, such evidence may be 
admitted only if the proponent of the evidence makes the 
evidence known to the adverse party in advance of trial or 
hearing.
  (3) The military judge shall exclude any evidence the 
probative value of which is substantially outweighed--
          (A) by the danger of unfair prejudice, confusion of 
        the issues, or misleading the members of the 
        commission; or
          (B) by considerations of undue delay, waste of time, 
        or needless presentation of cumulative evidence.
  (c) Notification to Congressional Committees of Changes to 
Procedures.--Not later than 60 days before the date on which 
any proposed modification of the procedures in effect for 
military commissions under this chapter goes into effect, the 
Secretary of Defense shall submit to the Committee on Armed 
Services of the Senate and the Committee on Armed Services of 
the House of Representatives a report describing the 
modification.

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 his functions in the conduct 
of the proceedings.
  (2) No person may attempt to coerce or, by any unauthorized 
means, influence the action of a military commission under this 
chapter, or any member thereof, in reaching the findings or 
sentence in any case, or the action of any convening, 
approving, or reviewing authority with respect to his judicial 
acts.
  (3) Paragraphs (1) and (2) do 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, but only if 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 
        classified information that is 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) Civilian defense counsel shall protect any classified 
information received during the course of representation of the 
accused in accordance with all applicable law governing the 
protection of classified information and may not divulge such 
information to any person not authorized to receive it.
  (5) If the accused is represented by civilian counsel, 
military counsel detailed shall act as associate counsel.
  (6) 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 that person's sole discretion, may detail 
additional military counsel to represent the accused.
  (7) 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 (c), (d), and (e), any 
proceedings under paragraph (1) shall--
          (A) be conducted in the presence of the accused, 
        defense counsel, and trial counsel; and
          (B) be made part of the record.
  (b) Proceedings in Presence of Accused.--Except as provided 
in subsections (c) and (e), all proceedings of a military 
commission under this chapter, including any consultation of 
the members with the military judge or counsel, shall--
          (1) be in the presence of the accused, defense 
        counsel, and trial counsel; and
          (2) be made a part of the record.
  (c) Deliberation or Vote of Members.--When the members of a 
military commission under this chapter deliberate or vote, only 
the members may be present.
  (d) 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, but only in accordance with this 
subsection.
  (2)(A) The military judge may close to the public all or a 
portion of the proceedings of a military commission under 
paragraph (1), or permit the admission of classified 
information outside the presence of the accused, based upon a 
presentation (including an ex parte or in camera presentation) 
by either the prosecution or the defense.
  (B) Trial counsel may not make a presentation requesting the 
admission of classified information outside the presence of the 
accused unless the head of the department or agency which has 
control over the matter (after personal consideration by that 
officer) certifies in writing to the military judge that--
          (i) the disclosure of the classified information to 
        the accused could reasonably be expected to prejudice 
        the national security; and
          (ii) that such evidence has been declassified to the 
        maximum extent possible, consistent with the 
        requirements of national security.
  (3) The military judge may close to the public all or a 
portion of the proceedings of a military commission under 
paragraph (1) upon making a specific finding that such closure 
is necessary to--
          (A) protect information the disclosure of which could 
        reasonably be expected to cause identifiable damage to 
        the public interest or the national security, including 
        intelligence or law enforcement sources, methods, or 
        activities; or
          (B) ensure the physical safety of individuals.
  (e) Exclusion of Accused From Certain Proceedings.--(1) The 
military judge may not exclude the accused from any portion of 
the proceeding except upon a specific finding of each of the 
following:
          (A) That the exclusion of the accused--
                  (i) is necessary to protect classified 
                information the disclosure of which to the 
                accused could reasonably be expected to cause 
                identifiable damage to the national security, 
                including intelligence or law enforcement 
                sources, methods, or activities;
                  (ii) is necessary to ensure the physical 
                safety of individuals; or
                  (iii) is necessary to prevent disruption of 
                the proceedings by the accused.
          (B) That the exclusion of the accused--
                  (i) is no broader than necessary; and
                  (ii) will not deprive the accused of a full 
                and fair trial.
  (2)(A) A finding under paragraph (1) may be based upon a 
presentation, including a presentation ex parte or in camera, 
by either trial counsel or defense counsel.
  (B) Before trial counsel may make a presentation for purposes 
of subparagraph (A) requesting the admission of classified 
information that has not been provided to the accused, the head 
of the executive or military department or governmental agency 
concerned shall ensure, and shall certify in writing to the 
military judge, that such evidence has been declassified to the 
maximum extent possible, consistent with the requirements of 
national security.
  (3)(A) No evidence may be admitted that has not been provided 
to the accused unless the evidence is classified information 
and the military judge makes a specific finding that--
          (i) consideration of that evidence by the military 
        commission, without the presence of the accused, is 
        warranted;
          (ii) admission of an unclassified summary or redacted 
        version of that evidence would not be an adequate 
        substitute and, in the case of testimony, alternative 
        methods to obscure the identity of the witness are not 
        adequate; and
          (iii) admission of the evidence would not deprive the 
        accused of a full and fair trial.
  (B) If the accused is excluded from a portion of the 
proceedings, the accused shall be provided with a redacted 
transcript of the proceedings from which excluded and, to the 
extent practicable, an unclassified summary of any evidence 
introduced. Under no circumstances shall such a summary or 
redacted transcript compromise the interests warranting the 
exclusion of the accused under paragraph (1).
  (4)(A) Military defense counsel shall be present and able to 
participate in all trial proceedings and shall be given access 
to all evidence admitted under paragraph (3).
  (B) Civilian defense counsel shall be permitted to be present 
and to participate in proceedings from which the accused is 
excluded under this subsection, and shall be given access to 
classified information admitted under this subsection, if--
          (i) civilian defense counsel has obtained the 
        necessary security clearances; and
          (ii) the presence of civilian defense counsel or 
        access of civilian defense counsel to such information, 
        as applicable, is consistent with regulations to 
        protect classified information that the Secretary of 
        Defense may prescribe.
  (C) Any defense counsel who receives classified information 
admitted under this subsection shall not be obligated to, and 
may not, disclose that information to the accused.
  (D) At all times the accused must have defense counsel with 
sufficient security clearance to participate in any proceeding, 
including an ex parte or in camera presentation, with respect 
to classified information.
  (5) If evidence has been admitted under this subsection that 
has not been provided to the accused, the judge shall instruct 
the members of the commission--
          (A) that such evidence was so admitted; and
          (B) that, in weighing the value of that evidence, the 
        commission shall consider the fact that such evidence 
        was admitted without having been provided to the 
        accused.
  (f) Admission of Statements of Accused.--(1) A statement 
described in paragraph (2) that is made by the accused during 
an interrogation, even if otherwise classified, may not be 
admitted into evidence in a military commission under this 
chapter unless the accused is present for the admission of the 
statement into evidence or the statement is otherwise provided 
to the accused.
  (2) A statement of an accused described in this paragraph is 
a statement communicated knowingly and directly by the accused 
in response to questioning by United States or foreign 
military, intelligence, or criminal investigative personnel.
  (3) This subsection shall not be construed to prevent the 
redaction of intelligence sources or methods, which do not 
constitute statements of the accused, from any document 
provided to the accused or admitted into evidence.

Sec. 949e. Continuances

  The military judge 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 
commission. The military judge shall determine the relevance 
and validity of challenges for cause. The military judge 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.--Each accused and the trial 
counsel are entitled to one peremptory challenge. 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, each accused and 
the trial counsel are entitled to one peremptory challenge 
against members not previously subject to peremptory challenge.

Sec. 949g. Oaths

  (a) In General.--(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 the 
same, 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 prescribed in regulations of the Secretary of 
Defense. Those 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.

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) Entry of 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 
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) Right of Defense Counsel.--Defense counsel in a military 
commission under this chapter shall have a reasonable 
opportunity to obtain witnesses and other evidence, including 
evidence in the possession of the United States, as provided in 
regulations prescribed by the Secretary of Defense.
  (b) Process for Compulsion.--Process issued in a military 
commission under this chapter to compel witnesses to appear and 
testify and to compel the production of other evidence--
          (1) shall be similar to that which courts of the 
        United States having criminal jurisdiction may lawfully 
        issue; and
          (2) shall run to any place where the United States 
        shall have jurisdiction thereof.
  (c) Treatment of Classified Information.--The military judge 
in a military commission under this chapter, upon a sufficient 
showing, may authorize trial counsel, in making documents 
available to the accused through discovery conducted pursuant 
to such rules as the Secretary of Defense shall prescribe, to 
delete specified items of classified information from such 
documents and, when such a deletion is made--
          (1) to substitute an unclassified summary of the 
        classified information in such documents; or
          (2) to substitute an unclassified statement admitting 
        relevant facts that classified information in such 
        documents would tend to prove.
  (d) Disclosure of Exculpatory Evidence.--(1) As soon as 
practicable, trial counsel in a military commission under this 
chapter shall disclose to the defense the existence of any 
evidence known to trial counsel that reasonably tends to 
exculpate the accused.
  (2) Exculpatory evidence that consists of classified 
information may be provided solely to defense counsel, and not 
the accused, after review in camera by the military judge.
  (3) Before evidence may be withheld from the accused under 
this subsection, the head of the executive or military 
department or government agency concerned shall ensure, and 
shall certify in writing to the military judge, that--
          (A) the disclosure of such evidence to the accused 
        could reasonably be expected to prejudice the national 
        security; and
          (B) such evidence has been declassified to the 
        maximum extent possible, consistent with the 
        requirements of national security.
  (4) Any classified exculpatory evidence that is not disclosed 
to the accused under this subsection--
          (A) shall be provided to military defense counsel;
          (B) shall be provided to civilian defense counsel, if 
        civilian defense counsel has obtained the necessary 
        security clearances and access to such evidence is 
        consistent with regulations that the Secretary may 
        prescribe to protect classified information; and
          (C) shall be provided to the accused in a redacted or 
        summary form, if it is possible to do so without 
        compromising intelligence sources, methods, or 
        activities or other national security interests.
  (5) A defense counsel who receives classifed evidence under 
this subsection shall not be obligated to, and may not, 
disclose that evidence to the accused.

Sec. 949k. Defense of lack of mental responsibility

  (a) Affirmative Defense.--It is an affirmative defense in a 
trial by military commission 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 of 
the commission as to the defense of lack of mental 
responsibility under this section and shall charge them to find 
the accused--
          (1) guilty;
          (2) not guilty; or
          (3) 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 them--
          (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) No person may be sentenced by a military 
commission to suffer death, except insofar as--
          (A) the penalty of death is expressly authorized 
        under this chapter 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 is convicted of the offense by the 
        concurrence of all the members; and
          (D) all the members concur in the sentence of death.
  (2) 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.
  (3) All other 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.
  (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.
  (2) In any case described in paragraph (1) in which 12 
members are not reasonably available because of physical 
conditions or military exigencies, the convening authority 
shall specify a lesser number of members for the military 
commission (but not fewer than 9 members), and the military 
commission may be assembled, and the trial held, with not fewer 
than the number of members so specified. In such a case, the 
convening authority shall make a detailed written statement, to 
be appended to the record, stating why a greater number of 
members were not reasonably available.

Sec. 949n. Military commission to announce action

  A military commission 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 of the commission if the trial counsel is unable to 
authenticate it by reason of his death, disability, or absence. 
Where appropriate, and as provided 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 be given a redacted version of the 
record. The appropriate 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 or 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 
afer accused has been given an authenticated record of trial 
under section 949o(c) of this title.
  (B) If the accused shows that additional time is required for 
the accused to make a submittal under paragraph (1), the 
convening authority 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)(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 on the sentence 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.
  (3) 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, may--
          (A) dismiss any charge or specification by setting 
        aside a finding of guilty thereto; or
          (B) change a finding of guilty to a charge to a 
        finding of guilty to an offense that is a lesser 
        included offense of the offense stated in the charge.
  (4) The convening authority shall serve on the accused or on 
defense counsel notice of any action taken by the convening 
authority under this subsection.
  (d) Order of Revision or Rehearing.--(1) Subject to 
paragraphs (2) and (3), the convening authority of a military 
commission under this chapter may, in his sole discretion, 
order a proceeding in revision or a rehearing.
  (2)(A) Except as provided in subparagraph (B), a proceeding 
in revision may be ordered by the convening authority if--
          (i) there is an apparent error or omission in the 
        record; or
          (ii) the record shows improper or inconsistent action 
        by the military commission with respect to the findings 
        or sentence that can be rectified without material 
        prejudice to the substantial rights of the accused.
  (B) In no case may a proceeding in revision--
          (i) reconsider a finding of not guilty of a 
        specification or a ruling which amounts to a finding of 
        not guilty;
          (ii) reconsider a finding of not guilty of any 
        charge, unless there has been a finding of guilty under 
        a specification laid under that charge, which 
        sufficiently alleges a violation; or
          (iii) increase the severity of the sentence unless 
        the sentence prescribed for the offense is mandatory.
  (3) A rehearing may be ordered by the convening authority if 
the convening authority disapproves the findings and sentence 
and states the reasons for disapproval of the findings. If the 
convening authority disapproves the finding and sentence and 
does not order a rehearing, the convening authority shall 
dismiss the charges. A rehearing as to the findings may not be 
ordered by the convening authority when there is a lack of 
sufficient evidence in the record to support the findings. A 
rehearing as to the sentence may be ordered by the convening 
authority if the convening authority disapproves the sentence.

Sec. 950c. Appellate referral; waiver or withdrawal of appeal

  (a) Automatic Referral for Appellate Review.--Except as 
provided under subsection (b), in each case in which the final 
decision of a military commission (as approved by the convening 
authority) includes a finding of guilty, the convening 
authority shall refer the case to the Court of Military 
Commission Review. Any such referral shall be made in 
accordance with procedures prescribed under regulations of the 
Secretary.
  (b) Waiver of Right of Review.--(1) In each case subject to 
appellate review under section 950f of this title, except a 
case in which the sentence as approved under section 950b of 
this title extends to death, the accused may file with the 
convening authority a statement expressly waiving the right of 
the accused to such review.
  (2) A waiver under paragraph (1) shall be signed by both the 
accused and a defense counsel.
  (3) A waiver under paragraph (1) must be filed, if at all, 
within 10 days after notice on the action is served on the 
accused 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.
  (c) 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.
  (d) 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 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 (d), (e), or 
        (f) of section 949d of this title.
  (2) The United States may not appeal under paragraph (1) an 
order or ruling that is, or amounts to, a finding of not guilty 
by the 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 such 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 of 
Military Commission Review may act only with respect to matters 
of law.
  (d) Appeal From Adverse Ruling.--The United States may appeal 
an adverse ruling on an appeal under subsection (c) to the 
United States Court of Appeals for the District of Columbia 
Circuit by filing a petition for review in the Court of Appeals 
within 10 days after the date of such ruling. Review under this 
subsection shall be at the discretion of the Court of Appeals.

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 be appointed to serve as an 
appellate military judge in any case in which that person acted 
as a military judge, counsel, or reviewing official.
  (c) Cases to Be Reviewed.--The Court of Military Commission 
Review, in accordance with procedures prescribed under 
regulations of the Secretary, shall review the record in each 
case that is referred to the Court by the convening authority 
under section 950c of this title with respect to any matter of 
law raised by the accused.
  (d) Scope of Review.--In a case reviewed by it under this 
section, the Court of Military Commission Review may act only 
with respect to matters of law.

Sec. 950g. Review by the United States Court of Appeals for the 
                    District of Columbia Circuit and the Supreme Court

  (a) Exclusive Appellate Jurisdiction.--(1)(A) Except as 
provided in subparagraph (B), the United States Court of 
Appeals for the District of Columbia Circuit shall have 
exclusive jurisdiction to determine the validity of a final 
judgment rendered by a military commission (as approved by the 
convening authority) under this chapter.
  (B) The Court of Appeals may not review the final judgment 
until all other appeals under this chapter have been waived or 
exhausted.
  (2) A petition for review must be filed by the accused in the 
Court of Appeals not later than 20 days after the date on 
which--
          (A) written notice of the final decision of the Court 
        of Military Commission Review is served on the accused 
        or on defense counsel; or
          (B) the accused submits, in the form prescribed by 
        section 950c of this title, a written notice waiving 
        the right of the accused to review by the Court of 
        Military Commission Review under section 950f of this 
        title.
  (b) Standard for Review.--In a case reviewed by it under this 
section, the Court of Appeals may act only with respect to 
matters of law.
  (c) Scope of Review.--The jurisdiction of the Court of 
Appeals on an appeal under subsection (a) shall be limited to 
the consideration of--
          (1) whether the final decision was consistent with 
        the standards and procedures specified in this chapter; 
        and
          (2) to the extent applicable, the Constitution.
  (d) Supreme Court.--The Supreme Court may review by writ of 
certiorari the final judgment of the Court of Appeals pursuant 
to section 1257 of title 28.

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 for counsel appearing before 
military commissions under this chapter.
  (b) Representation of United States.--Appellate counsel 
appointed under subsection (a)--
          (1) shall represent the United States in any appeal 
        or review proceeding under this chapter before the 
        Court of Military Commission Review; and
          (2) may, when requested to do so by the Attorney 
        General in a case arising under this chapter, represent 
        the United States before the United States Court of 
        Appeals for the District of Columbia Circuit or the 
        Supreme Court.
  (c) Representation of Accused.--The accused shall be 
represented by appellate counsel appointed under subsection (a) 
before the Court of Military Commission Review, the United 
States Court of Appeals for the District of Columbia Circuit, 
and the Supreme Court, and by civilian counsel if retained by 
the accused. Any such civilian counsel shall meet the 
qualifications under paragraph (3) of section 949c(b) of this 
title for civilian counsel appearing before military 
commissions under this chapter and shall be subject to the 
requirements of paragraph (4) of that section. The provisions 
of subparagraph (D) of section 949d(e)(5) of this title shall 
apply with respect to appellate counsel.

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 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 that 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--
                  (i) a petition for a writ of certiorari is 
                not timely filed;
                  (ii) such a petition is denied by the Supreme 
                Court; or
                  (iii) review is otherwise completed in 
                accordance with the judgment of the Supreme 
                Court.
  (c) Suspension of Sentence.--The Secretary of the Defense, or 
the convening authority acting on the case (if other than the 
Secretary), may suspend the execution of any sentence or part 
thereof in the case, except a sentence of death.

Sec. 950j. Finality or 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 Miliary 
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 the enactment of the Military Commissions Act 
of 2006, 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.
950p. Statement of substantive offenses.
950q. Principals.
950r. Accessory after the fact.
950s. Conviction of lesser included offense.
950t. Attempts.
950u. Solicitation.
950v. Crimes triable by military commissions.
950w. Perjury and obstruction of justice.
950x. Contempt.

Sec. 950p. 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. 950q. Principals

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

Sec. 950r. Accessory after the fact

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

Sec. 950s. Conviction of lesser included offense

  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. 950t. 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. 950u. Solicitation

  Any person subject to this chapter who solicits or advises 
another or others to commit one or more substantive offenses 
triable by military commission 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. 950v. Crimes triable by military commissions

  (a) Definitions and Construction.--In this section:
          (1) Military objective.--The term ``military 
        objective'' refers to--
                  (A) combatants; and
                  (B) those objects during an armed conflict--
                          (i) which, by their nature, location, 
                        purpose, or use, effectively contribute 
                        to the opposing force's war-fighting or 
                        war-sustaining capability; and
                          (ii) the total or partial 
                        destruction, capture, or neutralization 
                        of which would constitute a definite 
                        military advantage to the attacker 
                        under the circumstances at the time of 
                        the attack.
          (2) Protected person.--The term ``protected person'' 
        refers to any person entitled to protection under one 
        or more of the Geneva Conventions, including--
                  (A) civilians not taking an active part in 
                hostilities;
                  (B) military personnel placed hors de combat 
                by sickness, wounds, or detention; and
                  (C) military medical or religious personnel.
          (3) Protected property.--The term ``protected 
        property'' refers to property specifically protected by 
        the law of war (such as buildings dedicated to 
        religion, education, art, science or charitable 
        purposes, historic monuments, hospitals, or places 
        where the sick and wounded are collected), if such 
        property is not being used for military purposes or is 
        not otherwise a military objective. Such term includes 
        objects properly identified by one of the distinctive 
        emblems of the Geneva Conventions.
          (4) Construction.--The intent specified for an 
        offense under paragraph (1), (2), (3), (4), or (12) of 
        subsection (b) precludes the applicability of such 
        offense with regard to--
                  (A) collateral damage; or
                  (B) death, damage, or injury incident to a 
                lawful attack.
  (b) Offenses.--The following offenses shall be triable by 
military commission under this chapter at any time without 
limitation:
          (1) Murder of protected persons.--An alien unlawful 
        enemy combatant who intentionally kills one or more 
        protected persons is guilty of the offense of 
        intentionally killing a protected person and shall be 
        subject to whatever punishment a commission may direct, 
        including the penalty of death.
          (2) Attacking civilians.--An alien unlawful enemy 
        combatant who intentionally engages in an attack upon a 
        civilian population as such or individual civilians not 
        taking active part in hostilities is guilty of the 
        offense of attacking civilians and shall be subject to 
        whatever punishment a commission may direct, including, 
        if death results to one or more of the victims, the 
        penalty of death.
          (3) Attacking civilian objects.--An alien unlawful 
        enemy combatant who intentionally engages in an attack 
        upon property that is not a military objective shall be 
        guilty of the offense of attacking civilian objects and 
        shall be subject to whatever punishment a commission 
        may direct.
          (4) Attacking protected property.--An alien unlawful 
        enemy combatant who intentionally engages in an attack 
        upon protected property shall be guilty of the offense 
        of attacking protected property and shall be subject to 
        whatever punishment a commission may direct.
          (5) Pillaging.--An alien unlawful enemy combatant who 
        intentionally and in the absence of military necessity 
        appropriates or seizes property for private or personal 
        use, without the consent of a person with authority to 
        permit such appropriation or seizure, shall be guilty 
        of the offense of pillaging and shall be subject to 
        whatever punishment a commission may direct.
          (6) Denying quarter.--An alien unlawful enemy 
        combatant who, with effective command or control over 
        subordinate groups, declares, orders, or otherwise 
        indicates to those forces that there shall be no 
        survivors or surrender accepted, with the intent 
        therefore to threaten an adversary or to conduct 
        hostilities such that there would be no survivors or 
        surrender accepted, shall be guilty of denying quarter 
        and shall be subject to whatever punishment a 
        commission may direct.
          (7) Taking hostages.--An alien unlawful enemy 
        combatant who, having knowingly seized or detained one 
        or more persons, threatens to kill, injure, or continue 
        to detain such person or persons with the intent of 
        compelling any nation, person other than the hostage, 
        or group of persons to act or refrain from acting as an 
        explicit or implicit condition for the safety or 
        release of such person or persons, shall be guilty of 
        the offense of taking hostages and shall be subject to 
        whatever punishment a commission may direct, including, 
        if death results to one or more of the victims, the 
        penalty of death.
          (8) Employing poison or analogous weapons.--An alien 
        unlawful enemy combatant who intentionally, as a method 
        of warfare, employs a substance or a weapon that 
        releases a substance that causes death or serious and 
        lasting damage to health in the ordinary course of 
        events, through its asphyxiating, bacteriological, or 
        toxic properties, shall be guilty of employing poison 
        or analogous weapons and shall be subject to whatever 
        punishment a commission may direct, including, if death 
        results to one or more of the victims, the penalty of 
        death.
          (9) Using protected persons as shields.--An alien 
        unlawful enemy combatant who positions, or otherwise 
        takes advantage of, a protected person with the intent 
        to shield a military objective from attack or to 
        shield, favor, or impede military operations, shall be 
        guilty of the offense of using protected persons as 
        shields and shall be subject to whatever punishment a 
        commission may direct, including, if death results to 
        one or more of the victims, the penalty of death.
          (10) Using protected property as shields.--An alien 
        unlawful enemy combatant who positions, or otherwise 
        takes advantage of the location of, protected property 
        under the law of war with the intent to shield a 
        military objective from attack or to shield, favor, or 
        impede military operations, shall be guilty of the 
        offense of using protected property as shields and 
        shall be subject to whatever punishment a commission 
        may direct.
          (11) Torture.--An alien unlawful enemy combatant who 
        commits an act specifically intended to inflict severe 
        physical pain or suffering or severe mental pain or 
        suffering (other than pain or suffering incidental to 
        lawful sanctions) upon another person within his 
        custody or physical control for the purpose of 
        obtaining information or a confession, punishment, 
        intimidation, coercion, or any reason based on 
        discrimination of any kind, shall be guilty of torture 
        and subject to whatever punishment a commission may 
        direct, including, if death results to one or more of 
        the victims, the penalty of death. In this paragraph, 
        the term ``severe mental pain or suffering'' has the 
        meaning given that term in section 2340(2) of title 18.
          (12) Cruel or inhuman treatment.--An alien unlawful 
        enemy combatant who commits an act intended to inflict 
        severe physical pain or suffering or severe mental pain 
        or suffering (other than pain or suffering incidental 
        to lawful sanctions), including severe physical abuse, 
        upon another person within his custody or physical 
        control shall be guilty of cruel or inhuman treatment 
        and subject to whatever punishment a commission may 
        direct, including, if death results to one or more of 
        the victims, the penalty of death. In this paragraph, 
        the term ``severe mental pain or suffering'' has the 
        meaning given that term in section 2340(2) of title 18.
          (13) Intentionally causing serious bodily injury.--An 
        alien unlawful enemy combatant who intentionally causes 
        serious bodily injury to one or more persons, including 
        lawful combatants, in violation of the law of war shall 
        be guilty of the offense of causing serious bodily 
        injury and shall be subject to whatever punishment a 
        commission may direct, including, if death results to 
        one or more of the victims, the penalty of death. In 
        this paragraph, the term ``serious bodily injury'' has 
        the meaning given that term in section 113(b)(2) of 
        title 18.
          (14) Mutilating or maiming.--An alien unlawful enemy 
        combatant who intentionally injures one or more 
        protected persons, by disfiguring the person or persons 
        by any mutilation thereof or by permanently disabling 
        any member, limb, or organ of his body, without any 
        legitimate medical or dental purpose, shall be guilty 
        of the offense of mutilation or maiming and shall be 
        subject to whatever punishment a commission may direct, 
        including, if death results to one or more of the 
        victims, the penalty of death.
          (15) Murder in violation of the law of war.--An alien 
        unlawful enemy combatant who intentionally kills one or 
        more persons, including lawful combatants, in violation 
        of the law of war shall be guilty of the offense of 
        murder in violation of the law of war and shall be 
        subject to whatever punishment a commission may direct, 
        including the penalty of death.
          (16) Destruction of property in violation of the law 
        of war.--An alien unlawful enemy combatant who 
        intentionally destroys property belonging to another 
        person in violation of the law of war shall be guilty 
        of the offense of destruction of property in violation 
        of the law of war and shall be subject to whatever 
        punishment a commission may direct.
          (17) Using treachery or perfidy.--An alien unlawful 
        enemy combatant who, after inviting the confidence or 
        belief of one or more persons that they were entitled 
        to, or obliged to accord, protection under the law of 
        war, intentionally makes use of that confidence or 
        belief in killing, injuring, or capturing such person 
        or persons, shall be guilty of using treachery or 
        perfidy and shall be subject to whatever punishment a 
        commission may direct.
          (18) Improperly using a flag of truce.--An alien 
        unlawful enemy combatant who uses a flag of truce to 
        feign an intention to negotiate, surrender, or 
        otherwise to suspend hostilities when there is no such 
        intention, shall be guilty of improperly using a flag 
        of truce and shall be subject to whatever punishment a 
        commission may direct.
          (19) Improperly using a distinctive emblem.--An alien 
        unlawful enemy combatant who intentionally uses a 
        distinctive emblem recognized by the law of war for 
        combatant purposes in a manner prohibited by the law of 
        war shall be guilty of improperly using a distinctive 
        emblem and shall be subject to whatever punishment a 
        commission may direct.
          (20) Intentionally mistreating a dead body.--An alien 
        unlawful enemy combatant who intentionally mistreats 
        the body of a dead person, without justification by 
        legitimate military necessary, shall be guilty of the 
        offense of mistreating a dead body and shall be subject 
        to whatever punishment a commission may direct.
          (21) Rape.--An alien unlawful enemy combatant who 
        forcibly or with coercion or threat of force wrongfully 
        invades the body of a person by penetrating, however 
        slightly, the anal or genital opening of the victim 
        with any part of the body of the accused or with any 
        foreign object shall be guilty of the offense of rape 
        and shall be subject to whatever punishment a 
        commission may direct.
          (22) Hijacking or hazarding a vessel or aircraft.--An 
        alien unlawful enemy combatant subject to this title 
        who intentionally seizes, exercises unauthorized 
        control over, or endangers the safe navigation of, a 
        vessel or aircraft that was not a legitimate military 
        target is guilty of the offense of hijacking or 
        hazarding a vessel or aircraft and shall be subject to 
        whatever punishment a commission may direct, including, 
        if death results to one or more of the victims, the 
        penalty of death.
          (23) Terrorism.--An alien unlawful enemy combatant 
        subject to this title who intentionally kills or 
        inflicts great bodily harm on one or more persons, or 
        intentionally engages in an act that evinces a wanton 
        disregard for human life, in a manner calculated to 
        influence or affect the conduct of government or 
        civilian population by intimidation or coercion, or to 
        retaliate against government conduct, shall be guilty 
        of the offense of terrorism and shall be subject to 
        whatever punishment a commission may direct, including, 
        if death results to one or more of the victims, the 
        penalty of death.
          (24) Providing material support for terrorism.--An 
        alien unlawful enemy combatant who provides material 
        support or resources, knowing or intending that they 
        are to be used in preparation for, or in carrying out, 
        an act of terrorism (as defined in paragraph (23)), or 
        who intentionally provides material support or 
        resources to an international terrorist organization 
        engaged in hostilities against the United States, 
        knowing that such organization has engaged or engages 
        in terrorism (as defined in paragraph (23)), shall be 
        guilty of the offense of providing material support for 
        terrorism and shall be subject to whatever punishment a 
        commission may direct. In this paragraph, the term 
        ``material support or resources'' has the meaning given 
        that term in section 2339A(b) of title 18.
          (25) Wrongfully aiding the enemy.--An alien unlawful 
        enemy combatant who, in breach of an allegiance or duty 
        to the United States, knowingly and intentionally aids 
        an enemy of the United States or one its co-
        belligerents shall be guilty of the offense of 
        wrongfully aiding the enemy and shall be subject to 
        whatever punishment a commission may direct.
          (26) Spying.--An alien unlawful enemy combatant who, 
        with intent or reason to believe that it is to be used 
        to the injury of the United States or to the advantage 
        of a foreign power, collects or attempts to collect 
        certain information by clandestine means or while 
        acting under false pretenses, for the purpose of 
        conveying such information to an enemy of the United 
        States or one of its co-belligerents, shall be guilty 
        of the offense of spying and shall be subject to 
        whatever punishment a commission may direct, including 
        the penalty of death.
          (27) Conspiracy.--An alien unlawful enemy combatant 
        who conspires to commit one or more substantive 
        offenses triable under this section, and who knowingly 
        does any overt act to effect the object of the 
        conspiracy, shall be guilty of conspiracy and shall be 
        subject to whatever punishment a commission may direct, 
        including, if death results to one or more of the 
        victims, the penalty of death.

Sec. 950w. Perjury and obstruction of justice

  A military commission under this chapter may try offenses and 
impose punishments for perjury, false testimony, or obstruction 
of justice related to military commissions under this chapter.

Sec. 950x. 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.

           *       *       *       *       *       *       *

                              ----------                              


              SECTION 2441 OF TITLE 18, UNITED STATES CODE

Sec. 2441. War crimes

  (a) * * *

           *       *       *       *       *       *       *

  (c) Definition.--As used in this section the term ``war 
crime'' means any conduct--
          (1) * * *

           *       *       *       *       *       *       *

          [(3) which constitutes a violation of common Article 
        3 of the international conventions signed at Geneva, 12 
        August 1949, or any protocol to such convention to 
        which the United States is a party and which deals with 
        non-international armed conflict; or]
          (3) which constitutes a serious violation of common 
        Article 3 of the 1949 Geneva Conventions, when 
        committed in the context of and in association with an 
        armed conflict not of an international character; or

           *       *       *       *       *       *       *

  (d) Covered Common Article 3 Violations.--
          (1) Serious violations.--In subsection (c)(3), the 
        term ``serious violation of common Article 3 of the 
        1949 Geneva Conventions'' means any of the following:
                  (A) Torture.--The act of a person who 
                commits, or conspires or attempts to commit, an 
                act specifically intended to inflict severe 
                physical pain or suffering or severe mental 
                pain or suffering (as such term is defined in 
                section 2340(2) of this title), 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 
                physical pain or suffering or severe mental 
                pain or suffering (as such term is defined in 
                section 2340(2) of this title), other than pain 
                or suffering incidental to lawful sanctions, 
                and including severe physical abuse, upon 
                another person within his custody or physical 
                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 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 section, one or more 
                persons taking no active part in the 
                hostilities, including those placed hors de 
                combat by sickness, wounds, detention, or any 
                other cause.
                  (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 
                section, one or more persons taking no active 
                part in the hostilities, including those placed 
                hors de combat by sickness, wounds, detention, 
                or any other cause, by disfiguring the person 
                or persons by any mutilation thereof or by 
                permanently disabling any member, limb, or 
                organ of his body, without any legitimate 
                medical or dental purpose.
                  (F) Intentionally causing great suffering or 
                serious injury.--The act of a person who 
                intentionally causes, or conspires or attempts 
                to cause, serious bodily injury (as such term 
                is defined in section 113(b)(2) of this title) 
                to one or more persons taking no active part in 
                the hostilities, including those placed hors de 
                combat by sickness, wounds, detention, or any 
                other cause.
                  (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 (as such term is 
                defined in section 2246(3) of this title) with 
                one or more persons, or causes, or conspires or 
                attempts to cause, one or more persons to 
                engage in sexual contact (as so defined).
                  (I) Taking hostages.--The act of a person 
                who--
                          (i) 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; or
                          (ii) attempts to engage or conspires 
                        to engage in conduct under clause (i).
          (2) Inapplicability of specified provisions with 
        respect to certain conduct.--The intent specified for 
        the conduct stated in subparagraphs (D), (E), and (F) 
        of paragraph (1) precludes the applicability of those 
        subparagraphs with regard to--
                  (A) collateral damage; or
                  (B) death, damage, or injury incident to a 
                lawful attack.
                              ----------                              


              SECTION 2241 OF TITLE 28, UNITED STATES CODE

Sec. 2241. Power to grant writ

  (a) * * *

           *       *       *       *       *       *       *

  [(e) Except as provided in section 1005 of the Detainee 
Treatment Act of 2005, no court, justice, or judge shall have 
jurisdiction to hear or consider--
          [(1) an application for a writ of habeas corpus filed 
        by or on behalf of an alien detained by the Department 
        of Defense at Guantanamo Bay, Cuba; or
          [(2) any other action against the United States or 
        its agents relating to any aspect of the detention by 
        the Department of Defense of an alien at Guantanamo 
        Bay, Cuba, who--
                  [(A) is currently in military custody; or
                  [(B) has been determined by the United States 
                Court of Appeals for the District of Columbia 
                Circuit in accordance with the procedures set 
                forth in section 1005(e) of the Detainee 
                Treatment Act of 2005 to have been properly 
                detained as an enemy combatant.
  [(e) Except as provided in section 1405 of the Detainee 
Treatment Act of 2005, no court, justice, or judge shall have 
jurisdiction to hear or consider--
          [(1) an application for a writ of habeas corpus filed 
        by or on behalf of an alien detained by the Department 
        of Defense at Guantanamo Bay, Cuba; or
          [(2) any other action against the United States or 
        its agents relating to any aspect of the detention by 
        the Department of Defense of an alien at Guantanamo 
        Bay, Cuba, who--
                  [(A) is currently in military custody; or
                  [(B) has been determined by the United States 
                Court of Appeals for the District of Columbia 
                Circuit in accordance with the procedures set 
                forth in section 1405(e) of the Detainee 
                Treatment Act of 2005 to have been properly 
                detained as an enemy combatant.]
  (e)(1) Except as provided for in this subsection, and 
notwithstanding any other law, no court, justice, or judge 
shall have jurisdiction to hear or consider any claim or cause 
of action, including an application for a writ of habeas 
corpus, pending on or filed after the date of the enactment of 
the Military Commissions Act of 2006, against the United States 
or its agents, brought by or on behalf of any alien detained by 
the United States as an unlawful enemy combatant, relating to 
any aspect of the alien's detention, transfer, treatment, or 
conditions of confinement.
  (2) The United States Court of Appeals for the District of 
Columbia Circuit shall have exclusive jurisdiction to determine 
the validity of any final decision of a Combatant Status Review 
Tribunal. The scope of such review is defined in section 
1005(e)(2) of the Detainee Treatment Act of 2005. If the Court 
grants a detainee's petition for review, the Secretary of 
Defense may conduct a new Combatant Status Review Tribunal.
  (3) Review shall be had only of final judgments of military 
commissions as provided for pursuant to section 950g of title 
10, United States Code.
  (4) The court may consider classified information submitted 
in camera and ex parte in making any determination under this 
section.
                              ----------                              


           SECTION 1004 OF THE DETAINEE TREATMENT ACT OF 2005

SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN 
                    AUTHORIZED INTERROGATIONS.

  (a) * * *
  (b) Counsel.--The United States Government [may] shall 
provide or employ counsel, and pay counsel fees, court costs, 
bail, and other expenses incident to the representation of an 
officer, employee, member of the Armed Forces, or other agent 
described in subsection (a), with respect to any civil action 
or criminal prosecution or investigation arising out of 
practices described in that subsection whether before United 
States courts or agencies, foreign courts or agencies, or 
international courts or agencies,, under the same conditions, 
and to the same extent, to which such services and payments are 
authorized under section 1037 of title 10, United States Code.

                    ADDITIONAL AND DISSENTING VIEWS

                            ADDITIONAL VIEWS

    The time is well past when the United States of America 
should have a judicial system with which to deal with the likes 
of those terrorists detained at Guantanamo Bay, Cuba. While we 
support the effort to establish a system of military 
commissions as required by the Supreme Court's decision in 
Hamdan v. Rumsfeld, we are disappointed that the Skelton 
amendment in the form of a substitute was not adopted by the 
Armed Services Committee. We feel the Skelton amendment, which 
was very similar to the bipartisan bill subsequently reported 
out of the Senate Armed Services Committee under the leadership 
of Chairman John Warner and Senators John McCain, Carl Levin, 
and Lindsey Graham, was a better approach to this issue. It 
offered the best opportunity to quickly create a military 
commission system that is tough, swift, and fair, and that 
would produce sustainable convictions of accused terrorists, 
including Khalid Sheik Mohammad, the master mind of the
9/11 attacks.
    This amendment would have established tough but fair rules 
for trying terrorists based on the Uniform Code of Military 
Justice and its associated regulations. This would have 
addressed a significant issue that the Supreme Court had with 
the previous tribunal system. Of particular concern is the fact 
that H.R. 6054 as reported creates certain circumstances where 
the military judge could admit evidence into consideration that 
a defendant would not have the right to see. This is contrary 
to what most understand as a fundamental legal guarantee for 
the accused, and creates a situation where the Supreme Court 
may overturn convictions found through the military commission 
on that basis. As the Air Force Deputy Judge Advocate General, 
Major General Charles Dunlap, testified before the committee, 
``I don't think the Supreme Court, for example, would ever 
affirm a decision to execute an individual who was tried where 
the trier of fact relied upon evidence that the accused never 
saw and never had a chance to defend himself against.''
    Moreover, the existing military justice system and its 
regulations--long experienced in dealing with classified 
evidence and the need to protect witnesses from the 
intelligence community--already provide a range of tools for 
dealing with the challenge of balancing the requirement for a 
fair trial with the protection of national security 
information. For example, under current law, classified 
evidence can be redacted into unclassified form and witnesses 
can testify behind a screen or have their voices disguised to 
prevent their identities from being revealed. In no way does 
the current system risk disclosing classified evidence to 
terrorists or revealing the identities of sensitive witnesses. 
What it does do, however, is ensure that any conviction reached 
will withstand Supreme Court scrutiny. This is particularly 
significant since five years after 9/11, the existing military 
commission system has not produced a single conviction. We 
cannot base the new system on a rule likely to jeopardize the 
government's ability to successfully prosecute. The substitute 
offered a better way.
    Furthermore, the Skelton substitute applied existing rules 
of evidence from the manual for courts-martial but acknowledged 
that the realities of battlefield and intelligence operations 
must be taken into account. Therefore, it provided the 
Secretary of Defense, with the Attorney General, the ability to 
make exceptions to take into account the needs of the war zone. 
H.R. 6054, on the other hand, simply says that evidence is 
generally admissible if the judge finds it is probative to a 
reasonable person standard.
    Also, contrary to the measure adopted, the Skelton 
substitute did not attempt to redefine the United States' 
obligations under the Geneva Conventions' Common Article 3. 
H.R. 6054 lowers the standard of treatment the United States 
will be bound by from one this nation led the way in 
establishing and has maintained for over 60 years. Our 
uniformed military has been among the most vocal in their 
concerns about diluting this standard because they want to do 
everything possible to ensure that American forces would be 
treated with a similarly high standard if captured.
    Two former Chairmen of the Joint Chiefs of Staff sent 
letters to Senator McCain on this critical provision in H.R. 
6054. General Colin Powell, former Secretary of State in this 
administration, said: ``The world is beginning to doubt the 
moral basis of our fight against terrorism. To redefine Common 
Article 3 would add to those doubts. Furthermore, it would put 
our own troops at risk.'' General Jack Vessey said this change 
``would give opponents a legal argument for the mistreatment of 
Americans being held prisoner in times of war.'' These are 
powerful arguments that should be taken seriously.
    Lastly, where H.R. 6054 creates an entirely new system for 
appeals, the Skelton substitute would have used the tried and 
true existing system for military appeals. This would have 
allowed for an appeals process that is already tested and well 
understood by the military lawyers and judges who will have to 
make the system effective. We feel there was no need to 
reinvent this process.
    In conclusion, all Americans and all members of the Armed 
Services Committee want a tough system of military commissions 
that will swiftly convict terrorists. While H.R. 6054 will move 
the process toward a conference with the Senate, it is very 
unclear whether its approach will withstand scrutiny in the 
courts. The Skelton substitute would have created a commissions 
system that lived up to the requirements of the Supreme Court, 
protected American troops under the Geneva Conventions, and 
swiftly moved to convictions for alleged terrorists. We will 
continue to work, as the bill moves through the legislative 
process, to ensure that the system Congress eventually enacts 
is effective.
                                   Ike Skelton.
                                   John Spratt.
                                   Solomon Ortiz.
                                   Silvestre Reyes.
                                   Vic Snyder.
                                   Robert Andrews.
                                   James Langevin.
                                   Steve Israel.
                                   Jim Cooper.
                                   G.K. Butterfield.

             ADDITIONAL VIEW OF RANKING MEMBER IKE SKELTON

    While it is critical that Congress pass legislation that 
will provide the President with a tough and fair system of 
military commissions that will ensure swift convictions for 
terrorists and protect our men and women in uniform, I continue 
to have serious concerns about how this legislation deals with 
habeas corpus matters.
    Representative Meehan offered a very good amendment that 
would have stripped provisions involving habeas corpus matters 
out of the substitute amendment. But unfortunately Mr. Meehan's 
amendment did not pass.
    I emphasize, as I did in my remarks in the Congressional 
Record of December 15, 2005, and as Senator Levin also 
emphasized, the congressional intent of the Detainee Treatment 
Act was that it not apply to or alter pending habeas cases. The 
United States Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct. 
2749 (2006) confirmed this congressional intent. As the Supreme 
Court ruled in Lindh v. Murphy, 521 U.S. 320 (1997), the fact 
that Congress chose not to explicitly apply the habeas-
stripping provision to pending cases means that the courts 
retain jurisdiction to consider these appeals.
    Congress should not strip the United States federal courts 
of jurisdiction to hear pending habeas cases, or it would 
seriously undermine well-established case law, separation of 
powers and other values enshrined in our constitution.
    While the military commission legislation must ensure swift 
convictions for terrorists, uphold our obligations under the 
Geneva Conventions, and protect our men and women in uniform, 
it must also respond to the United States Supreme Court's 
ruling in the Hamdan case and withstand judicial scrutiny, or 
it may not effectively serve its other purposes.

                                                       Ike Skelton.

                            DISSENTING VIEWS

    The time is well past when the United States of America 
should have a judicial system with which to deal with the likes 
of those terrorists detained at Guantanamo Bay, Cuba. While we 
support the effort to establish a system of military 
commissions as required by the Supreme Court's decision in 
Hamdan v. Rumsfeld, we are disappointed that the Skelton 
amendment in the form of a substitute was not adopted by the 
Armed Services Committee. We feel the Skelton amendment, which 
was very similar to the bipartisan bill subsequently reported 
out of the Senate Armed Services Committee under the leadership 
of Chairman John Warner and Senators John McCain, Carl Levin, 
and Lindsey Graham, was a better approach to this issue. It 
offered the best opportunity to quickly create a military 
commission system that is tough, swift, and fair, and that 
would produce sustainable convictions of accused terrorists, 
including Khalid Sheik Mohammad, the master mind of the
9/11 attacks.
    This amendment would have established tough but fair rules 
for trying terrorists based on the Uniform Code of Military 
Justice and its associated regulations. This would have 
addressed a significant issue that the Supreme Court had with 
the previous tribunal system. Of particular concern is the fact 
that H.R. 6054 as reported creates certain circumstances where 
the military judge could admit evidence into consideration that 
a defendant would not have the right to see. This is contrary 
to what most understand as a fundamental legal guarantee for 
the accused, and creates a situation where the Supreme Court 
may overturn convictions found through the military commission 
on that basis. As the Air Force Deputy Judge Advocate General, 
Major General Charles Dunlap, testified before the committee, 
``I don't think the Supreme Court, for example, would ever 
affirm a decision to execute an individual who was tried where 
the trier of fact relied upon evidence that the accused never 
saw and never had a chance to defend himself against.''
    Moreover, the existing military justice system and its 
regulations--long experienced in dealing with classified 
evidence and the need to protect witnesses from the 
intelligence community--already provide a range of tools for 
dealing with the challenge of balancing the requirement for a 
fair trial with the protection of national security 
information. For example, under current law, classified 
evidence can be redacted into unclassified form and witnesses 
can testify behind a screen or have their voices disguised to 
prevent their identities from being revealed. In no way does 
the current system risk disclosing classified evidence to 
terrorists or revealing the identities of sensitive witnesses. 
What it does do, however, is ensure that any conviction reached 
will withstand Supreme Court scrutiny. This is particularly 
significant since five years after 9/11, the existing military 
commission system has not produced a single conviction. We 
cannot base the new system on a rule likely to jeopardize the 
government's ability to successfully prosecute. The substitute 
offered a better way.
    Furthermore, the Skelton substitute applied existing rules 
of evidence from the manual for courts-martial but acknowledged 
that the realities of battlefield and intelligence operations 
must be taken into account. Therefore, it provided the 
Secretary of Defense, with the Attorney General, the ability to 
make exceptions to take into account the needs of the war zone. 
H.R. 6054, on the other hand, simply says that evidence is 
generally admissible if the judge finds it is probative to a 
reasonable person standard.
    Also, contrary to the measure adopted, the Skelton 
substitute did not attempt to redefine the United States' 
obligations under the Geneva Conventions' Common Article 3. 
H.R. 6054 lowers the standard of treatment the United States 
will be bound by from one this nation led the way in 
establishing and has maintained for over 60 years. Our 
uniformed military has been among the most vocal in their 
concerns about diluting this standard because they want to do 
everything possible to ensure that American forces would be 
treated with a similarly high standard if captured.
    Two former Chairmen of the Joint Chiefs of Staff sent 
letters to Senator McCain on this critical provision in H.R. 
6054. General Colin Powell, former Secretary of State in this 
administration, said: ``The world is beginning to doubt the 
moral basis of our fight against terrorism. To redefine Common 
Article 3 would add to those doubts. Furthermore, it would put 
our own troops at risk.'' General Jack Vessey said this change 
``would give opponents a legal argument for the mistreatment of 
Americans being held prisoner in times of war.'' These are 
powerful arguments that should be taken seriously.
    Lastly, where H.R. 6054 creates an entirely new system for 
appeals, the Skelton substitute would have used the tried and 
true existing system for military appeals. This would have 
allowed for an appeals process that is already tested and well 
understood by the military lawyers and judges who will have to 
make the system effective. We feel there was no need to 
reinvent this process.
    In conclusion, all Americans and all members of the Armed 
Services Committee want a tough system of military commissions 
that will swiftly convict terrorists. While H.R. 6054 will move 
the process toward a conference with the Senate, it is very 
unclear whether its approach will withstand scrutiny in the 
courts. The Skelton substitute would have created a commissions 
system that lived up to the requirements of the Supreme Court, 
protected American troops under the Geneva Conventions, and 
swiftly moved to convictions for alleged terrorists.
    When the Skelton bill failed, we opposed the underlying 
legislation which we believe will irreparably harm the war on 
terror by tying up the prosecution of terrorists with new 
untested legal norms that do no meet the requirement of the 
Supreme Court's Hamdan decision; endangering our service 
members by attempting to rewrite and limit U.S. compliance with 
Common Article Three of the Geneva Conventions; undermining 
basic standards of U.S. law; and departing from a body of law 
well understood by our troops.
Habeas corpus
    It is our opinion that by extinguishing the court's 
jurisdiction over pending and future habeas corpus petitions, 
this legislation contradicts the Constitution and numerous 
Supreme Court rulings. Section 5 of the Committee report would 
sanction one of the most sweeping jurisdiction-stripping 
measures in our history and raises grave constitutional 
questions.
    By legislating that all pending and future habeas petitions 
are not subject to judicial review, the Committee leaves itself 
open to an adverse court ruling that will strike down this bill 
leaving us exactly where we were after the Supreme Court ruled 
in Hamdan v. Rumsfeld (2006) that the ad hoc military 
commissions set up by the President were illegal. This will 
only lengthen the current delay in the prosecution of 
terrorists. Not a single trial has taken place, or a single 
criminal convicted, in military commissions in the more than 
five years since September 11, 2001. We fear that things will 
not change for the better if we enact the legislation in its 
current form.
    If the Committee's true intent was an expedited legislative 
process which would lead to quick and just prosecutions for 
terrorists, it would have been wise to take the Supreme Court's 
comments on this topic into consideration. As Chairman Warner 
of the Senate Armed Services Committee said on July 13, 2006:

          ``[I]n my judgment, as a Congress, in this 
        legislation, [we] must meet the tenets and objectives 
        of that [Hamdan v. Rumsfeld] opinion. Otherwise, such 
        legislation that we will devise and enact into law 
        might well be struck down by subsequent federal court 
        review. And that would not be in the interests of this 
        nation.
          The eyes of the world are on this nation as to how we 
        intend to handle this type of situation and handle it 
        in a way that a measure of legal rights and human 
        rights are given to detainees.''
Common article three
    The further we depart from the Geneva Conventions and 
Common Article Three and try to rewrite or ignore its 
provisions, the stronger the message we send that it is alright 
for other nations not to give our soldiers any rights when they 
are captured on the battlefield.
    On Thursday, September 7, 2006, Major General Charles 
Dunlap expressed a feeling common among the Judge Advocates 
General who testified before the House Armed Services Committee 
that ``a process fully compliant with Common Article Three will 
enhance our standing internationally and empower our allies to 
embrace the legal reasoning and architecture behind our 
prosecution of military cases. Doing so is plainly in our 
warfighting interests.''
    We could not agree with him more.
    By stating that compliance with the prohibitions against 
cruel, inhuman, and degrading treatment in the Detainee 
Treatment Act fully satisfies U.S. obligations with respect to 
the standards for detention and treatment of detainees under 
Geneva, the bill threatens noncompliance with Article 3, 
Sections 1(c) which also includes outrages on personal dignity 
and humiliating treatment and 1(d) being tried before a 
regularly constituted court ``affording all the judicial 
guarantees which are recognized as indispensable by civilized 
peoples.''
    We are also concerned with the possible implications of 
section 4 which contains an exclusive list of offenses in an 
attempt to limit behavior prohibited under Geneva.
    Section 4 of the underlying bill endeavors to codify 
behavior that would be considered a war crime under the War 
Crimes Act by listing specific crimes that violate Common 
Article 3 of the Geneva Conventions.
    By creating an exclusive list, the bill would omit any form 
of abuse not specifically enumerated in the bill which could 
operate to legislatively ``exempt out'' outrages upon personal 
dignity and humiliating treatment.
    Such a step threatens to place United States in 
noncompliance with the Geneva Conventions.
    The Geneva Conventions are international treaties that the 
United States was instrumental in creating and in encouraging 
other nations to join and to comply.
    The provision could send the wrong message to our enemies 
and to our allies that they could feel free not to comply with 
the internationally recognized treaties that have been ratified 
by 194 countries and that our own JAGs testified that the 
United States military has been trained to comply with for 
decades.
    We agree with former chairman of the Joint Chiefs of Staff, 
General John Vessey who wrote in a letter to Sen. John McCain, 
``I continue to read and hear that we are facing a 'different 
enemy' in the war on terror. No matter how true that may be, 
inhumanity and cruelty are not new to warfare nor to enemies we 
have faced in the past * * * Through the years, we held to our 
own values. We should continue to do so.''
Coerced testimony
    Finally, we are also concerned that H.R. 6054 contradicts, 
and threatens to undermine, the clear prohibition on cruel, 
inhuman, or degrading treatment established by Congress in the 
Detainee Treatment Act (DTA) of 2005. The Skelton substitute 
would have reinforced current U.S. detainee treatment standards 
under the Detainee Treatment Act by prohibiting the admission 
of statements obtained by torture, or by cruel, inhuman, and 
degrading treatment. The measure adopted, on the other hand, 
prohibited only the admission of statements obtained by 
torture; evidence allegedly obtained by coercion less than 
torture would be admitted unless the judge finds it unreliable 
or lacking in probative value. This lower could indirectly 
weaken the DTA's clear detainee treatment standards. Again, for 
the sake of the protection of American troops that may be 
captured by our enemies in the future, as well as the need to 
maintain moral authority in the war on terrorism, we must not 
step back from our commitments on detainee treatment.
Conclusion
    We would concur with Senator Warner and note that the 
Committee should have passed a stronger bill--one that is tough 
on terrorists, true to American values and able to withstand 
judicial scrutiny. We strongly oppose House passage of the 
underlying bill in its current form. We will continue to work, 
as the bill moves through the legislative process, to ensure 
that the system Congress eventually enacts is effective.

                                   Ellen O. Tauscher.
                                   Marty Meehan.
                                   Loretta Sanchez.
                                   Rick Larsen.
                                   Neil Abercrombie.

              DISSENTING VIEW OF REPRESENTATIVE MARK UDALL

    The time is well past when the United States of America 
should have a judicial system with which to deal with the likes 
of those terrorists detained at Guantanamo Bay, Cuba. While we 
support the effort to establish a system of military 
commissions as required by the Supreme Court's decision in 
Hamdan v Rumsfeld, we are disappointed that the Skelton 
amendment in the form of a substitute was not adopted by the 
Armed Services Committee. We feel the Skelton amendment, which 
was very similar to the bipartisan bill subsequently reported 
out of the Senate Armed Services Committee under the leadership 
of Chairman John Warner and Senators John McCain, Carl Levin, 
and Lindsey Graham, was a better approach to this issue. It 
offered the best opportunity to quickly create a military 
commission system that is tough, swift, and fair, and that 
would produce sustainable convictions of accused terrorists, 
including Khalid Sheik Mohammad, the master mind of the
9/11 attacks.
    This amendment would have established tough but fair rules 
for trying terrorists based on the Uniform Code of Military 
Justice and its associated regulations. This would have 
addressed a significant issue that the Supreme Court had with 
the previous tribunal system. Of particular concern is the fact 
that H.R. 6054 as reported creates certain circumstances where 
the military judge could admit evidence into consideration that 
a defendant would not have the right to see. This is contrary 
to what most understand as a fundamental legal guarantee for 
the accused, and creates a situation where the Supreme Court 
may overturn convictions found through the military commission 
on that basis. As the Air Force Deputy Judge Advocate General, 
Major General Charles Dunlap, testified before the committee, 
``I don't think the Supreme Court, for example, would ever 
affirm a decision to execute an individual who was tried where 
the trier of fact relied upon evidence that the accused never 
saw and never had a chance to defend himself against.'' 
Moreover, the existing military justice system and its 
regulations--long experienced in dealing with classified 
evidence and the need to protect witnesses from the 
intelligence community--already provide a range of tools for 
dealing with the challenge of balancing the requirement for a 
fair trial with the protection of national security 
information. Five years after 9/11, the existing military 
commission system has not produced a single conviction. We 
cannot base the new system on a rule likely to jeopardize the 
government's ability to successfully prosecute. The substitute 
offered a better way.
    Furthermore, the Skelton substitute applied existing rules 
of evidence from the manual for courts-martial but acknowledged 
that the realities of battlefield and intelligence operations 
must be taken into account. Therefore, it provided the 
Secretary of Defense, with the Attorney General, the ability to 
make exceptions to take into account the needs of the war zone. 
H.R. 6054, on the other hand, simply says that evidence is 
generally admissible if the judge finds it is probative to a 
reasonable person standard.
    Also, contrary to the measure adopted, the Skelton 
substitute did not attempt to redefine the United States' 
obligations under the Geneva Conventions' Common Article 3. 
H.R. 6054 lowers the standard of treatment the United States 
will be bound by from one this nation led the way in 
establishing and has maintained for over 60 years. Our 
uniformed military has been among the most vocal in their 
concerns about diluting this standard because they want to do 
everything possible to ensure that American forces would be 
treated with a similarly high standard if captured.
    Two former Chairmen of the Joint Chiefs of Staff sent 
letters to Senator McCain on this critical provision in H.R. 
6054. General Colin Powell, former Secretary of State in this 
administration, said: ``The world is beginning to doubt the 
moral basis of our fight against terrorism. To redefine Common 
Article 3 would add to those doubts. Furthermore, it would put 
our own troops at risk.'' General Jack Vessey said this change 
``would give opponents a legal argument for the mistreatment of 
Americans being held prisoner in times of war.'' These are 
powerful arguments that should be taken seriously.
    Lastly, where H.R. 6054 creates an entirely new system for 
appeals, the Skelton substitute would have used the tried and 
true existing system for military appeals. This would have 
allowed for an appeals process that is already tested and well 
understood by the military lawyers and judges who will have to 
make the system effective. We feel there was no need to 
reinvent this process.
    All Americans and all members of the Armed Services 
Committee want a tough system of military commissions that will 
swiftly convict terrorists. While H.R. 6054 will move the 
process toward a conference with the Senate, it is very unclear 
whether its approach will withstand scrutiny in the courts. The 
Skelton substitute would have created a commissions system that 
lived up to the requirements of the Supreme Court, protected 
American troops under the Geneva Conventions, and swiftly moved 
to convictions for alleged terrorists. We will continue to 
work, as the bill moves through the legislative process, to 
ensure that the system Congress eventually enacts is effective.
    When the Skelton bill failed, I opposed the underlying 
legislation because I think it risks irreparably harming the 
war on terror by tying up the prosecution of terrorists with 
new untested legal norms that do no meet the requirement of the 
Supreme Court's Hamdan decision; endangering our service 
members by attempting to rewrite and limit U.S. compliance with 
Common Article Three of the Geneva Conventions; undermining 
basic standards of U.S. law; and departing from a body of law 
well understood by our troops.

                                                        Mark Udall.

           DISSENTING VIEW OF REPRESENTATIVE CYNTHIA McKINNEY

    President Bush relies on various authorizations for his 
initiation of the conflicts and wars in Afghanistan and Iraq 
and in the ``war on terrorism'', in the course of which 
thousands of individuals, both U.S. citizens and aliens have 
been captured and detained for indefinite periods. Before 
addressing the nature and legality of creating special courts 
to try these people for alleged crimes of war it is necessary 
to examine the legality of the wars, conflicts and conditions 
of their capture and detention and the standing legal 
precedents and protocols that should guide those activities.
    These detainees have been held, interrogated and mistreated 
outside the protection of the US Constitution and the 
principles and legal procedures that insure due process as well 
as outside the protections and protocols of the Geneva 
Convention of 1949 and later, including Article 3 and Article 
4, and against proscriptions of the International Commission of 
the Red Cross, United Nations agreements and provisions, and 
international laws of war and other treaties.
    In addition, President Bush issued a Military Commission 
Order 1 on March 31, 2002 and a series of Military Commission 
Instructions on April 30, 2002 creating an unprecedented new 
form of tribunal with rules and procedures not consistent with 
the Uniform Code of Military Justice that is the authority and 
guide for the creation of such tribunals, which also violates 
the Constitutional guarantees due anyone facing possible 
conviction and sentencing by a court, and the provisions of the 
Geneva Convention protocols for protected persons and fair 
trials.
Legal authority
    The legal basis claimed for these actions, in both public 
statements and legal memoranda adopted by this administration, 
has allegedly been the Authorization of the Use of Military 
Force (AUMF) legislation passed by Congress on September 14, 
2001, and October 16, 2002 respectively, and the power 
implicitly granted the president in times of war as Commander 
in Chief under Article II, Section 2 of the U.S. Constitution, 
and the historical and legal precedents for the use of military 
commissions in U.S. history, as well as court decisions in 
reaction to them.
    In fact, the AUMF passed on September 4, 2001 was to be 
limited by the provisions of the War Powers Act of 1973, 
requiring regular Congressional review and oversight, and 
contains no language about military commissions or the granting 
of any extra-legal or extra-Constitutional powers to the 
president, nor does the language of the Constitution imply the 
right of the president to act without Congressional 
consultation or beyond the balance of powers guaranteed in its 
articles. In July, 2006 the Supreme Court ruled in Hamdan vs. 
Rumsfeld that these Military Commissions, as constituted, were 
in violation of both Constitutional and international law, 
including Common Article 3 of the Geneva Convention and lacked 
necessary Congressional authorization and approval.
The War in Afghanistan
    The AUMF of September 14, 2001 became Public Law 107-40 on 
September 19 and authorized the President to ``use all 
necessary and appropriate force against those nations, 
organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks that occurred on 
September 11, 2001, or harbored such organizations or persons * 
* * '' Implicit support was given to the ``global war against 
terrorism'' and the US invasion of Afghanistan by the United 
Nations Security Council in resolutions passed between 
September and December 2001, despite clear U.N. provisions 
against wars of aggression.
    This war was never declared by Congress, and AUMF approval 
was based on evidence never presented in public to the American 
people or to Congress that apparently relied solely on the 
testimony of individuals in detention in undisclosed locations, 
subjected to torture and cruel and degrading punishments for 
the claim that Osama bin Laden was ultimately responsible for 
the attacks. It is also clear that the war against the Taliban 
regime was planned and prepared long before the attacks of 
September 11, and announced to surrounding countries by 
Secretary of State Colin Powell in the summer of 2001.
    Despite repeated offers from the Taliban, the government of 
Afghanistan, to meet the accords of international law and 
procedures by turning bin Laden over to an international 
tribunal for interrogation and trial for crimes against 
humanity, the U.S. administration carried out a war of 
aggression that toppled the government of Afghanistan and 
caused massive and ongoing suffering to its population without 
capturing Osama bin Laden or most of the key leadership of his 
organization to date.
    A large body of detainees was captured, or turned over to 
U.S. forces by Northern Alliance combatants and detained in 
Afghanistan, and then transferred to a special prison at 
Guantanamo Bay, Cuba, on property controlled by the United 
States. While several hundred of these detainees have been 
released from detention, most without trail or combat status 
review, hundreds also remain in indefinite custody and 
detention without charges or trials pending. Those pending 
trial are not guaranteed release upon acquittal of charges of 
crimes of war.
The War on Iraq
    Another undeclared war of aggression was carried out under 
the subsequent AUMF of October 13, 2002, following years of 
aerial bombardment and economic sanctions that led to countless 
civilian deaths and massive suffering under the covert and 
overt attacks by U.S. forces. The AUMF was passed in Congress 
on the basis of what is now recognized as false assertions, 
manipulated intelligence and the testimony of detainees under 
duress of torture, regarding both the presence and imminent 
development or use of weapons of mass destruction in Iraq, and 
the linking of Iraq to Osama bin Laden and the attacks of 9/11.
    The concept of ``preventive war'' is not allowed as a 
justification for wars under international law, and cannot be 
considered self-defense, nor was this war authorized by the 
United Nations Security Council. Iraq was incapable of mounting 
a credible defense, much less an attack on the United States. 
In the war of aggression waged against Iraq, the United States 
was responsible for a disproportionate use of force, attacks on 
civilian populations, hospitals and critical infrastructures, 
the use of weapons prohibited by international treaty and 
convention, the destruction of a government and occupation of 
sovereign territory, and the extrajudicial use of murders and 
assassinations.
    The President specifically authorized these assassinations 
to be carried out by the CIA (using Predator UAVs) and Special 
Operations forces under the Department of Defense to kill 
anyone designated as an ``enemy combatant'' by the President, 
apparently without rescinding the 1976 Executive Order of 
President Ford forbidding assassinations abroad involving U.S. 
government personnel.
    Another large body of captives continue to be put in 
custody and detained by U.S. forces, both inside and outside 
Iraq, and subjected to torture and cruel, degrading punishments 
while placed beyond the legal protections of the Constitution, 
the Geneva Convention and international law and treaties the 
U.S. is bound by.
The war on terrorism
    Yet another legally undeclared and undefined ``war on 
terrorism'' has been predicted by the current administration to 
last beyond our lifetimes, and to involve as many as 60 
countries in a global battlefield that extends to include the 
United States as a combat zone, requiring the creation of a new 
military regional command, NORTHCOM to direct and carry out 
combat operations inside the United States.
    In response to the attacks on September 11, 2001, thousands 
of U.S. residents, both citizens and aliens, were rounded-up in 
mass arrests, many secretly arrested and indefinitely detained 
without the Constitutional rights that extend to any people on 
U.S. soil or controlled territories, and the legal procedures 
and due process rights that U.S. authorities are required to 
provide them. Many of these individuals were never charged with 
crimes and were released or continued in detention without 
trials for periods of months and years. These detainees also 
complained of torture and cruel or degrading treatment.
Material witnesses, immigrants and citizens
    Since the attacks of September 11, 2001, tens of thousands 
of legal and illegal immigrants residing inside the United 
States were arrested and detained beyond the resolution of 
their immigrant status or in same cases for long periods before 
hearings or deportation, with a special focus on Arabs, Muslims 
and South Asians who suffered racial profiling, social 
dislocation, and being brutalized, held incommunicado, without 
legal rights and often in solitary confinement.
    These immigrants and other U.S. citizens and permanent 
residents were arrested by the Justice Department as ``material 
witness seizures'' in clear violations of the International 
Covenant for Civil and Political Rights and the Constitutional 
protections that extend to all on U.S. soil.
    Certain U.S. citizens were seized and detained inside the 
United States or abroad with no right to challenge in courts, 
depicted as ``enemy combatants'', transferred to military 
custody without a judicial hearing on the facts or legality of 
their detention. Also, their status under Geneva Convention 
rules was effectively decided unilaterally by the President, 
rather than by a Combat Status Review or civilian court.
Extraordinary renditions
    The Bush administration, in violation of U.S. statures and 
international law, used both the CIA and U.S. military 
personnel to track, capture, drug and bind, and transport 
individuals identified by the President as past or potential 
terrorists or those who are assumed to have special knowledge 
about terrorist plots or perpetrators, both U.S. citizens and 
aliens, here and abroad, and rendered them outside the justice 
and law. These individuals are taken from inside other 
sovereign nations or our own to foreign countries where torture 
is practiced or to secret detention centers beyond oversight or 
legal intervention where detainees are known to have been 
tortured.
    Another group of hundreds of captured individuals were part 
of these secret renditions to locations outside the reach of 
law and justice. Some of these secretly held prisoners have 
recently been acknowledged and transferred to a new U.S, prison 
facility at Guantanamo Bay, Cuba. Such renditions involve 
elaborately planned clandestine seizure and transport by covert 
operatives and flights arranged by the Central Intelligence 
Agency, and were initially used by the Clinton administration 
to bring terrorists or other international criminals to justice 
by returning them to proper jurisdictions and authorities here 
and abroad. The current administration has illegally reversed 
their purpose.
Indefinite detainment
    In order to justify these thousands of arrests, captures 
and detentions which place these individuals outside the reach 
and protection of U.S. Constitution, law and treaty provisions, 
the Bush administration has created a special category of 
``enemy combatants'' in the ``war on terror'' which in practice 
has not been limited to aliens or non-citizens, or to people 
captured hors de combat, or even to actual combatants. Recently 
released interrogation transcripts from Camp X-Ray at 
Guantanamo Bay, Cuba clearly indicate that many individuals 
were held and interrogated solely on the basis of having been 
captured or turned over to U.S. control in the combat areas. 
Many of these have been released again without any clear 
definition of the criteria involved, while others remain in 
indefinite detention without rights or charges proffered.
    These detentions are often arbitrary in purpose, and not 
universally related to the duration of hostilities, war or 
conflict since hundreds have been released following 
interrogation and often torture on grounds never promulgated 
and apparently unrelated to pending charges or acquittals by 
military reviews or trials. Recent proposed legislation and 
testimony by administration officials reveals that the duration 
of some detentions will extend beyond trial and acquittal or 
termination of sentence of those tried by Military Commissions, 
short of life imprisonment or death penalties.
Torture and cruel and degrading punishment
    The Bush administration, through classified legal 
memoranda, legislative signing statements and executive 
directives from the White House, the Pentagon and the Central 
Intelligence Agency have attempted to exempt their conduct from 
the laws of war and U.S. laws and procedures, as well as the 
standards outlined in Army Field Manual 35-42, based on the 
Geneva Convention protocols, which have determined the 
interrogations and treatment of detainees for the last 50 years 
in cases of capture during conflict, combat or war, on and off 
U.S. soil and their detention as prisoners.
    Torture is being redefined in these memoranda and proposed, 
classified changes to the Army Field Manual, as exempting any 
abuse short of actions that might result in organ failure and 
death. In more recent proposed legislation the internationally 
prohibited cruel and degrading punishments are being redefined 
as only those which ``shock the conscience'', effectively and 
unilaterally modifying the terms of the Geneva Convention and 
the Convention Against Torture, as well as the War Crimes Act 
of 1996, and Detainee Treatment Act and long-established 
practices and training that are based on those standards, 
without seeking consent of Congress before acting on them, and 
without seeking the necessary international consideration and 
consensus that prohibits any nation from breaking the rules of 
reciprocity in regard to laws of war and combat.
    All categories of captives are protected, both before and 
after any determination of their combat status, under Article 3 
and Article 4 of the Geneva Convention and its protocols, which 
has been incorporated into U.S. practice and policy prior to 
legislation affirming these principles. The United States has 
always tried to set the example by training troops and 
commanders to extend protections and shun any abusive treatment 
whatsoever towards captives or detainees. Under the Geneva 
Convention rules any cruel and degrading punishment, physical 
abuse or excessive discomfort, and any form of torture are 
prohibited in the treatment of all unarmed captives, whether 
prisoners of war (POW), civilians, non-combatants, or 
unauthorized combatants of any kind, even if suspected of 
taking part in crimes of war. Their required and immediate 
Combat Status Review may improve aspects of their rights and 
treatment or their release, but it is never used to deprive 
them of the basic rights and protections extended to all.
    The torture that has been carried out by U.S. forces and 
intelligence operatives, or by surrogates in the secret prisons 
abroad has taken the form of beatings, water-boarding 
(immersion), electroshocks, extreme temperature or noise 
levels, denial of pain medication for injuries, severe burning, 
deprivation of food, water and sleep, threats against family 
members, extended shackling in painful positions, self-
inflicted coerced pain, extended isolation, sensory 
deprivation, denial of medical care, suffering loss of limbs or 
permanent injuries and death, mental breakdown and illness, 
disappearances from families or countries of origin.
``Enemy combatants''
    The terms ``enemy combatant'' or ``alien unlawful enemy 
combatant'' from the proposed new legislation have no precedent 
or recognition in international or domestic law or treaty. No 
such category exists under the Geneva Convention combat status 
categories. The vaguely defined term was introduced by the 
current administration after the terrorist attacks in 2001 in 
order to create a category of people who were beyond the 
Convention and U.S. laws, and whose rights and protections 
could be ignored and dismissed for purposes of interrogation or 
fighting the ``war on terror''. Interestingly, most of the 
specifics used to identify unlawful enemy combatants match 
Geneva convention definitions of a protected category, the 
expansion of that definition to include certain suspected 
proscribed activities moves them out from under that protection 
before trying them.
    In practice ``enemy combatants'' can be citizens or aliens, 
combatants or their supporters, those suspected of terrorist 
activities or crimes of war now or in the future, those who 
harbor terrorists, and even those not involved in combat or 
captured outside any combat zone. The proposed definition 
expands to activities far beyond the commission of crimes of 
war or even terrorism to undefined acts ``triable by Military 
Commissions''. The range of offenses that both define a person 
as an enemy combatant and are then used to detain and prosecute 
the person are outside the scope of existing international law 
or accord in relation to war.
    At the same time, proposed legislation is attempting to 
undermine the legal accountability of U.S. personnel for their 
participation in prohibited torture and crimes of war that can 
potentially lead to the death penalty under the Geneva 
Convention. There is no guarantee that the proposed vague 
definition for ``alien unlawful enemy combatant'' used to allow 
their trials by Military Commissions would be applied to all 
other cases of detention in the future. There is no guarantee 
that U.S. citizens will be detained, stripped of their 
Constitutional rights, and even stripped of citizenship without 
a full and fair trial or even a judicial hearing or 
determination prior to their deportation or indefinite 
detention.

Restoring rights and justice

    While none of the cited legislative or statutory 
authorities for the creation or use of the Military Commissions 
ordered by the White House really address or allow them, 
including the two AUMF laws, the Detainee Treatment Act of 
2001, nor the arrogated powers allegedly based on Article II of 
the Constitution, but it is the case that the Constitution as 
interpreted by the Supreme Court and in practice historically 
makes clear that the President and the Congress can create and 
regulate military commissions or tribunals in times of war or 
domestic emergency, and suspend the rights of certain clearly 
identified classes of belligerents. Over time, the formation 
and procedures of such tribunals have been incorporated into 
law, specifically into sections of Title 10, U.S. Code that 
codify the Uniform Code of Military Justice (Article 21) and in 
the Laws of War (Article 15).
    In recent American history the use of such tribunals was 
based on the exigencies of battle or political assassination, 
and following World War II they have been based legally and in 
form on the Military Rules of Evidence and the Manual for 
Courts Martial procedures that have developed over decades 
under the UCMJ and in military court decisions or civilian 
court appeals and reviews. The current proposals would move 
them away from this imperfect but more reasonable and fair 
legal system in many ways, repeating errors of the past that 
informed the current practices and rules. In our history, the 
rights of citizens and non-citizens alike have been based on 
and enjoyed the broad protections of our Constitution and 
settled international law and reciprocal protocols. There is no 
need to abandon these protections, including habeas petition 
rights, even if a small and clearly defined category of people 
suspected of having committed crimes of war should more 
logically be prosecuted by a Military Commission than a 
civilian court.
    There is also a principle established by the Supreme Court 
at the end of World War II and by the Posse Comitatus Act that 
followed the Civil War that if civilian courts are functional 
then military courts should not replace that function, 
especially for citizens or other protected groups. Military 
tribunals have traditionally been used to try belligerents in 
declared wars where the exigencies of war and timing made them 
imperative. Using them for detainees now having spent years in 
captivity far from the battlefield or zone of combat has much 
less compelling justification.

Current legislation inadequate

    The Military Commissions created under President Bush's 
special orders and instructions in 2002 have been ruled by the 
Supreme Court to be unconstitutional in many aspects, in 
violation of international law and convention, and in defiance 
of the required balance that Congressional review and 
involvement should bring. Based on vague definitions and ill-
informed legal rationale, they should best be abandoned in 
favor of methods of jurisprudence and rights established over 
time in our country and by the world community rather than 
supported with new legislation that may result in additional 
court review and reversal. While the conflict we fight in may 
be new, the reasons to retain our respect for Constitutional 
principles and rights and international accords have stood the 
test of time and should not be compromised or abandoned. In 
fact, they are our best defense.
    Unfortunately, both H.R. 6054, the Military Commissions Act 
of 2006, based closely on White House proposals to get 
Congressional approval and sanction for their illegal 
activities and programs, and the closely aligned substitute 
proposed by Rep. Ike Skelton which was defeated by the HASC 
during mark-up, itself based on a bi-partisan Senate bill 
promoted by Senators McCain, Warner, Graham and Levine, fail to 
address many of the worst excesses of the proposed Military 
Commissions. Among the Constitutional, legal and international 
treaty rights not incorporated into either version are:

Authorities and limitations

    Legislate any new version of Military Commissions to 
conform exactly to and satisfy the ruling of the Supreme Court 
in Hamdan vs. Rumsfeld rather than to legalize the excesses of 
the version adopted by the President and rejected by the court.
    The existing limitations on and balances to Presidential 
powers even in times of declared war. Courts and Congress 
cannot rely on assurances of ``good faith'' intentions to 
concede their role in balance of power and oversight.
    Any existing or future Authorization of the Use of Military 
Force passed by Congress must require oversight, regular 
review, transparency and clear criteria for a deadline 
requiring a full declaration of war or cessation of hostilities 
as well as defined limits to Presidential powers under the 
AUMF. (War Powers Act, 1973)
    The necessary Congressional oversight and review of the 
conduct of the ``war on terror'' or other armed conflicts under 
the provisions of the War Powers Act of 1973 as well as their 
own Constitutional mandate to declare and fund wars. Require 
Congressional hearings, oversight and review of all agencies 
involved in the capture and indefinite detention of any 
persons, citizen or not excluding arrests by recognized police 
agencies for commission of actual crimes.
    Clearly codify and define who can be classified as an 
``enemy combatant'' or any sort, and who cannot. Under the 
original Military Commission Order, the definition included 
anyone who ``is or was a member of Al Qaeda'', or who ``engaged 
in, aided or abetted a conspiracy to commit acts.'' The 
definition should not be self-referential, making the suspicion 
of a crime sufficient to override a presumption of innocence or 
define the status without a speedy hearing or right of appeal 
following initial detention. No U.S. citizen who is not engaged 
in direct combat or hostilities against U.S. forces abroad and 
who commits a crime of war in that combat zone should be 
designated as an ``enemy combatant'' or detained and tried 
under military control.
    Appoint and fund the legally mandated but uninitiated 
federal Civil Liberties Review Board and include any and all 
detainees in its scope, meeting the requirement that each 
federal agency or entity has at least one full time staff 
member assigned to protect civil liberties and rights.
    Support current legislative challenges such as H. Res. 990 
requiring that the AUMF of October 13, 2002 be revisited and 
modified in light of current changes following full and open 
debate by Congress, thereby restoring their prerogative and 
duty to oversight and the separation of powers that denies the 
arrogation of increased or unitary executive powers in times of 
emergency or war.
    Reaffirm our commitment to the laws of war and 
international agreements that insure reciprocity by all nations 
in their treatment of captured belligerents or others in the 
zone of combat during conflicts or wars. Reaffirm the 
Constitutional spheres of authority and rules of war within 
those spheres, and reaffirm our commitment to all treaties 
signed and covenants agreed to in regard to the United Nations. 
Do not exempt American military personnel from the Geneva 
Conventions, the War Crimes Act of 1996 or reduce the standing 
definitions of war crimes to a more minimal standard. Do not 
accept the current legislative language that asserts that the 
Geneva Convention is ``not a source of judicially enforceable 
individual acts'', since military personnel are taught and 
directed in their acts by its provisions.

Rights of detainees

    Right to a timely (10-15 day) Combat Status Review 
following capture and detention, conducted in the combat zone 
while witnesses and information can be obtained. (Geneva 
Convention)
    Right to the protections of the Geneva Convention which 
apply to all detainees arrested, whether U.S. citizens or 
foreign nationals, and whether or not citizens of a country we 
are at war with, or if aligned with a country or group not a 
signatory to the Conventions, and whether or not captured in 
the territory of a signatory country. Geneva Convention Common 
Rule 3 requires minimum protection of anyone caught hors de 
combat.
    Right to a reasonably limited period between detention and 
any criminal charges (48 hours in U.S. law) or release from 
custody, which would reflect the conditions of capture and the 
need for detention and interrogation, but which would not 
exceed all legal limits or subject individuals to indefinite 
detention without charges or trial (30-45 days maximum).
    Right to restricted communication with family and 
unrestricted with counsel or government officials from the 
beginning of the detention.
    Right to access to International Commission of the Red 
Cross visitation and inspection of facilities and treatment of 
detainees under international law and established procedures.
    No secret rendition or detention, including access to 
counsel and initiation of habeas review for wrongful detention.
    Right of accused to be present during public proceedings, 
and to view all evidence presented against the defendant, 
barring evidence that is classified by source or method in such 
a way that it cannot be redacted, summarized or conveyed, and 
therefore cannot be introduced or used as the sole or partial 
basis for conviction. (MRE 505)
    Right to file a writ of habeas in any federal civilian 
court challenging detention or timely procedures, reminding 
federal courts to intervene in a timely way during crises or 
war in the public interest to protect Constitutional rights and 
safeguards.
    Right to all guaranteed due process legal rights that are 
part of any established proceeding barring those that would 
require full disclosure of classified information despite its 
withdrawal as evidence, and prohibition of any and all evidence 
obtained under coercion or hearsay unless it clearly fits 
existing standards under the MRE for review.
    Right to promulgated standards for release from detention 
and access to administrative and judicial reviews. No 
indefinite detention without provable cause given judicial 
review. Release from detention following acquittal of charges 
or determination that person was wrongly detained or not a 
threat. Set a maximum time for detentions solely for the 
purpose of interrogation (30-45 days).
    No suspension of full Constitutional, statutory and other 
rights accorded to any U.S. citizen regardless of conditions of 
capture unless they are eligible to be tried under 
international laws of war for crimes that allow an 
international court to have jurisdiction, requiring a U.S. 
federal court review of such claims.
    No death penalty sentence without unanimous consent of full 
Commission, all other convictions and sentencing requiring at 
least \2/3\ of Commission appointed.
    Reaffirm the rights of immigrants, both legal and illegal, 
once arrested or detained to access to counsel, speedy public 
hearings, and no deportation based on secret or coerced 
evidence in either Immigration hearings or FISA court 
proceedings. Prohibit any automatic deportations based on alien 
or ethnic criteria or suspicion of threat not proven by 
criminal acts.
    Right against ``preventive detention'' based on anything 
less than imminent and demonstrable danger of overt actions of 
criminal intent.

Legal procedures

    Military Commissions meet the standards of the Geneva 
Convention Article 3, requiring a ``regularly constituted 
court, affording all the judicial guarantees which are 
recognized as indispensable by civilized peoples.'' (Common 
Article 3)
    No use of Military Commissions where exigencies of war or 
emergency do not exist or would not prohibit use of established 
courts with jurisdiction based on alleged crimes and not on 
categories of detainees. Refer crimes against humanity to 
international tribunals instead and only try crimes of war in 
combat zones. Commissions should not apply to the vast number 
of detainees cited above.
    Legal proceedings follow UCMJ Article 36 provisions in 
terms of Military Rules of Evidence and the Manual for Courts 
Martial so that rules are ``uniform insofar as practicable'' 
with the established protections. Do not add to or amend Title 
10 U.S.C. 47 in this regard or add new offenses to the code.
    Establish procedures to insure public transparency of CSR 
and Military Commission proceedings including public disclosure 
of the outcomes of each decision, conviction or sentence at 
frequent and regular intervals. Use existing Military Rules of 
Evidence and do not minimalize the standards for acceptance of 
evidence, allowing some discretion on the part of the judge.
    Charges under Military Commissions should relate solely to 
participation in crimes of war as defined by the Geneva 
Convention and other standing U.S. law and treaty. Creation of 
additional or new charges relating to aiding, abetting or 
supporting such crimes is not proper, and those should be 
adjudicated in other courts with a broader jurisdiction.
    Do not amend the War Crimes Act of 1996 to redefine only 
``serious'' or ``grave beaches'' as illegal or actionable.
    Independent appointment of the convening authority, the 
trial judges, and the commission members will prevent undue 
influence by the President or the Secretary of Defense. 
Similarly, fully independent and unrestricted post-action 
review by existing and established military appeal courts 
(Court of Appeals for the Armed Forces) and all federal courts 
of appeal including the Supreme Court should be available 
regarding the Combat Status Review, any conviction or sentence 
by a Military Commission, a required review in the case of a 
death penalty or life sentence, and any other issues of habeas 
or mandamus that arise. Creation and appointment of special 
appeal panels, limitation of appeal of death penalty sentences 
to the President, limitation on the specific areas of appeal 
available, and retroactive or ongoing consolidation of habeas 
petitions into a single circuit should not be allowed.

Torture

    Renew our commitment to international anti-torture 
standards and withdraw all Presidential executive orders, legal 
memoranda, directives, legislative signings, proposed 
legislative changes, modification of standards of evidence, and 
changes to existing military or intelligence regulations, 
manuals or directives that in any way alter our practice or 
procedures, enumerations of specific methods or levels of abuse 
that distinguish some as less than torture, or prohibitions or 
reliance on established definitions of torture. Reaffirm our 
support for all Geneva Convention articles and protocols 
relating to torture or any cruel or degrading treatment it 
prohibits, withdraw our reservations to the international 
Convention Against Torture and preserve our own laws 
prohibiting torture or mistreatment of detainees or any 
prisoner held within or without the United States by any arm of 
government from local police to federal prisons and military 
brigs.
    Prohibit the use of torture both by military and 
intelligence agency employees or assets and subcontractors, 
private security forces, or any public or private institution 
with control over the movement or treatment of long-term 
inmates, delinquents, mental or health patients or residents. 
Prohibit the use of torture by any covert operation abroad or 
inside the United States. Prohibit the facilitating diagnostic 
or treatment roles of medical or psychiatric/psychological 
personnel in any military or civilian use of torture, even if 
not directly involved in the abuse. Prohibit the study of or 
experimentation on any techniques to be used in torture and the 
training of any such techniques or methods to other governments 
or organized forces by any U.S. military or civilian government 
personnel or subcontractors.
    Restore the use of Army Field Manual 34-52 without proposed 
modifications and continue the universal training of non-
coercive interrogation standards to all military service 
members and to forces and police abroad, and apply the same 
standards to all intelligence or civilian agencies of the 
federal, state or local governments and police forces.
    Require regular independent reviews of all places of 
detainment by International Commission of Red Cross and federal 
agencies to be sure that conditions of imprisonment, transfer 
and treatment meet the established standards of the Bureau of 
Prisons and prohibit excessive shackling or stress positions 
and sensory deprivation. Establish a procedure to insure the 
ability of detainees to formal complaints, protected from 
retaliation, about their conditions and treatment that are not 
dealt with solely by prison guards or administrators but afford 
external investigations and review.

                               RESOURCES

    Hamdan v. Rumsfeld, Supreme Court, June 29, 2006 #05-184.
    Guantanamo and the Abuse of Presidential Power, Joseph 
Margulies.
    Enemy Aliens: Double Standards and Constitutional Freedoms 
in the War on Terrorism, David Cole.
    Military Tribunals & Presidential Power: American 
Revolution to the War on Terrorism, Louis Fisher.
    Oath Betrayed: Torture, Medical Complicity and the War on 
Terror, Steven H. Miles, M.D.
    National Security and Military Law in a Nutshell, Charles 
Shanor and Lynn Hogue.
    Military Commission Order and Instructions, Department of 
Defense and President Bush, 2001.
    4th Geneva Convention and protocols of signatories.
    United Nations Security Council Resolutions 1368, 1373, 
1377, 1378, 1383, 1386 (2001).
    Public Law 107-40, Authorization of the Use of Military 
Force, September 18, 2001.
    Public Law 107-243, Authorization of the Use of Military 
Force Against Iraq Resolution of 2002, October 16, 2002.

                                                  Cynthia McKinney.