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Full text of "gov.uscourts.dcd.116163"

Case 1:05-cv-01458-UNA-AK Document 28-2 Filed 10/18/2006 Page 1 of 39 



ATTACHMENT 



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S.3930 



©ne Hundred Binth Congress 

of the 

United States of 3merica 



AT THE SECOND SESSION 

Begun and held at the City of Washington on Tuesday, 
the third day of January, two thousand and six 



3ln2lct 

To authorize trial by military commission for violations of the law of war, and 

for other purposes. 

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

(a) Short Title. — This Act may be cited as the "Military 
Commissions Act of 2006". 

(b) Table of Contents. — The table of contents for this Act 
is as follows: 

Short title; table of contents. 

Construction of Presidential authority to establish military commissions. 

Military commissions. 

Amendments to Uniform Code of Military Justice. 

Treaty obligations not establishing grounds for certain claims. 

Implementation of treaty obligations. 

Habeas corpus matters. 

Revisions to Detainee Treatment Act of 2005 relating to protection of certain 
United States Government personnel. 

Review of judgments of military commissions. 

. Detention covered by review of decisions of Combatant Status Review Tri- 
bunals of propriety of detention. 

SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH 
MILITARY COMMISSIONS. 

The authority to establish military commissions under chapter 
47A of title 10, United States Code, as added by section 3(a), 
may not be construed to alter or limit the authority of the President 
under the Constitution of the United States and laws of the United 
States to establish military commissions for areas declared to be 
under martial law or in occupied territories should circumstances 
so require. 

SEC. 3. MILITARY COMMISSIONS. 

(a) Military Commissions. — 

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

"CHAPTER 47A— MILITARY COMMISSIONS 

"Subchapter 

"I. General Provisions 948a 

"II. Composition of Military Commissions 948h 

"III. Pre-Trial Procedure 948q 

"TV. Trial Procedure 949a 

"V. Sentences 949s 



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S. 3930— 2 

"VI. Post-Trial Procedure and Review of Military Commissions 950a 

"VII. 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. 

"§ 948a. Definitions 

"In this chapter: 

"(1) Unlawful enemy combatant. — (A) The term 'unlaw- 
ful enemy combatant' means — 

"(i) a person who has engaged in hostilities or who 
has purposefully and materially supported hostilities 
against the United States or its co-belligerents who is 
not a lawful enemy combatant (including a person who 
is part of the Taliban, al Qaeda, or associated forces); 
or 

"(ii) a person who, before, on, or after the date of 
the enactment of the Military Commissions Act of 2006, 
has been determined to be an unlawful enemy combatant 
by a Combatant Status Review Tribunal or another com- 
petent tribunal established under the authority of the 
President or the Secretary of Defense. 

"(B) Co-belligerent. — In this paragraph, the term 'co- 
belligerent', with respect to the United States, means any State 
or armed force joining and directly engaged with the United 
States in hostilities or directly supporting hostilities against 
a common enemy. 

"(2) Lawful enemy combatant. — The term 'lawful enemy 
combatant' means a person who is — 

"(A) a member of the regular forces of a State party 
engaged in hostilities against the United States; 

"(B) a member of a militia, volunteer corps, or orga- 
nized resistance movement belonging to a State party 
engaged in such hostilities, which are under responsible 
command, wear a fixed distinctive sign recognizable at 
a distance, carry their arms openly, and abide by the 
law of war; or 

"(C) a member of a regular armed force who professes 
allegiance to a government engaged in such hostilities, 
but not recognized by the United States. 
"(3) Alien. — The term 'alien' means a person who is not 
a citizen of the United States. 

"(4) Classified information. — The term 'classified 
information' means the following: 

"(A) Any information or material that has been deter- 
mined 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)). 



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S. 3930— 3 

"(5) Geneva conventions. — The term 'Geneva Conven- 
tions' means the international conventions signed at Geneva 
on August 12, 1949. 

"§ 948b. Military commissions generally 

"(a) Purpose. — This chapter establishes procedures governing 
the use of military commissions to try alien unlawful enemy combat- 
ants engaged in hostilities against the United States for violations 
of the law of war and other offenses triable by military commission. 

"(b) Authority for Military Commissions Under This 
Chapter. — The President is authorized to establish military 
commissions under this chapter for offenses triable by military 
commission as provided in this chapter. 

"(c) Construction of Provisions. — The procedures for mili- 
tary commissions set forth in this chapter are based upon the 
procedures for trial by general courts-martial under chapter 47 
of this title (the Uniform Code of Military Justice). Chapter 47 
of this title does not, by its terms, apply to trial by military commis- 
sion except as specifically provided in this chapter. The judicial 
construction and application of that chapter are not binding on 
military commissions established under this chapter. 

"(d) Inapplicability of Certain Provisions. — (1) The fol- 
lowing provisions of this title shall not apply to trial by military 
commission under this chapter: 

"(A) Section 810 (article 10 of the Uniform Code of Military 

Justice), relating to speedy trial, including any rule of courts- 
martial relating to speedy trial. 

"(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and 

(d) of the Uniform Code of Military Justice), relating to compul- 
sory self-incrimination. 

"(C) Section 832 (article 32 of the Uniform Code of Military 

Justice), relating to pretrial investigation. 

"(2) Other provisions of chapter 47 of this title shall apply 
to trial by military commission under this chapter only to the 
extent provided by this chapter. 

"(e) Treatment of Rulings and Precedents. — The findings, 
holdings, interpretations, and other precedents of military commis- 
sions under this chapter may not be introduced or considered in 
any hearing, trial, or other proceeding of a court-martial convened 
under chapter 47 of this title. The findings, holdings, interpreta- 
tions, and other precedents of military commissions under this 
chapter may not form the basis of any holding, decision, or other 
determination of a court-martial convened under that chapter. 

"(f) 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 pur- 
poses of common Article 3 of the Geneva Conventions. 

"(g) Geneva Conventions Not Establishing Source of 
Rights. — No alien unlawful enemy combatant subject to trial by 
military commission under this chapter may invoke the Geneva 
Conventions as a source of rights. 

"§ 948c. Persons subject to military commissions 

"Any alien unlawful enemy combatant is subject to trial by 
military commission under this chapter. 



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S. 3930— 4 

"§ 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 or the law of war when committed by an alien unlawful 
enemy combatant before, on, or after September 11, 2001. 

"(b) Lawful Enemy Combatants. — Military commissions under 
this chapter shall not have jurisdiction over lawful enemy combat- 
ants. 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) Determination of Unlawful Enemy Combatant Status 
Dispositive. — A finding, whether before, on, or after the date of 
the enactment of the Military Commissions Act of 2006, by a 
Combatant Status Review Tribunal or another competent tribunal 
established under the authority of the President or the Secretary 
of Defense that a person is an unlawful enemy combatant is disposi- 
tive for purposes of jurisdiction for trial by military commission 
under this chapter. 

"(d) Punishments. — A military commission under this chapter 
may, under such limitations as the Secretary of Defense may pre- 
scribe, adjudge any punishment not forbidden by this chapter, 
including the penalty of death when authorized under this chapter 
or the law of war. 

"§ 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 judge of a military commission. 

"948k. Detail of trial counsel and defense counsel. 

"9481. Detail or employment of reporters and interpreters. 

"948m. Number of members; excuse of members; absent and additional members. 

"§ 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. 

"§ 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 commis- 
sion 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 



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S. 3930— 5 

authority, are best qualified for the duty by reason of age, education, 
training, experience, length of service, and judicial temperament. 
No member of an armed force is eligible to serve as a member 
of a military commission when such member is the accuser or 
a witness for the prosecution or has acted as an investigator or 
counsel in the same case. 

"(c) Excuse of Members. — Before a military commission under 
this chapter is assembled for the trial of a case, the convening 
authority may excuse a member from participating in the case. 

"§ 948j. Military judge of a military commission 

"(a) Detail of Military Judge. — A military judge shall be 
detailed to each military commission under this chapter. The Sec- 
retary of Defense shall prescribe regulations providing for the 
manner in which military judges are so detailed to military commis- 
sions. The military judge shall preside over each military commis- 
sion 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. 

"§ 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 commis- 
sion under this chapter. 

"(2) Assistant trial counsel and assistant and associate defense 
counsel may be detailed for a military commission under this 
chapter. 



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S. 3930— 6 

"(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 pro- 
viding 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 (e), trial counsel 

detailed for a military commission under this chapter must be — 

"(1) a judge advocate (as that term is defined in section 

801 of this title (article 1 of the Uniform Code of Military 

Justice) who — 

"(A) is 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) is 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 — 

"(A) is a member of the bar of a Federal court or 
of the highest court of a State; and 

"(B) is otherwise qualified to practice before the mili- 
tary commission pursuant to regulations prescribed by the 
Secretary of Defense. 
"(c) Military Defense Counsel. — Subject to subsection (e), 
military defense counsel detailed for a military commission under 
this chapter must be a judge advocate (as so defined) who is — 
"(1) a graduate of an accredited law school or is a member 
of the bar of a Federal court or of the highest court of a 
State; and 

"(2) certified as competent to perform duties as defense 

counsel before general courts-martial by the Judge Advocate 

General of the armed force of which he is a member. 

"(d) Chief Prosecutor; Chief Defense Counsel. — (1) The 

Chief Prosecutor in a military commission under this chapter shall 

meet the requirements set forth in subsection (b)(1). 

"(2) The Chief Defense Counsel in a military commission under 
this chapter shall meet the requirements set forth in subsection 
(c)(1). 

"(e) Ineligibility of Certain Individuals. — No person who 
has acted as an investigator, military judge, or member of a military 
commission under this chapter in any case may act later as trial 
counsel or military defense counsel in the same case. No person 
who has acted for the prosecution before a military commission 
under this chapter may act later in the same case for the defense, 
nor may any person who has acted for the defense before a military 
commission under this chapter act later in the same case for the 
prosecution. 

"§9481. Detail or employment of reporters and interpreters 

"(a) Court Reporters. — Under such regulations as the Sec- 
retary of Defense may prescribe, the convening authority of a mili- 
tary commission under this chapter shall detail to or employ for 
the commission qualified court reporters, who shall make a verbatim 



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S. 3930— 7 

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 
and for the accused. 

"(c) Transcript; Record. — The transcript of a military commis- 
sion 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. 

"§948m. Number of members; excuse of members; absent 
and additional members 

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

"(2) In a case in which the accused before a military commission 
under this chapter may be sentenced to a penalty of death, the 
military commission shall have the number of members prescribed 
by section 949m(c) of this title. 

"(b) Excuse of Members. — No member of a military commis- 
sion 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. 

"§ 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 author- 
ized 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. 



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S. 3930— 8 

"(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. 

"§ 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 shall not be admissible in 
a military commission under this chapter, except against a person 
accused of torture as evidence that the statement was made. 

"(c) Statements Obtained Before Enactment of Detainee 
Treatment Act of 2005. — A statement obtained before December 
30, 2005 (the date of the enactment of the Defense Treatment 
Act of 2005) in which the degree of coercion is disputed may be 
admitted only if the military judge finds that — 

"(1) the totality of the circumstances renders the statement 
reliable and possessing sufficient probative value; and 

"(2) the interests of justice would best be served by admis- 
sion of the statement into evidence. 

"(d) Statements Obtained After Enactment of Detainee 
Treatment Act of 2005. — A statement obtained on or after 
December 30, 2005 (the date of the enactment of the Defense 
Treatment Act of 2005) in which the degree of coercion is disputed 
may be admitted only if the military judge finds that — 

"(1) the totality of the circumstances renders the statement 
reliable and possessing sufficient probative value; 

"(2) the interests of justice would best be served by admis- 
sion of the statement into evidence; and 

"(3) the interrogation methods used to obtain the statement 
do not amount to cruel, inhuman, or degrading treatment 
prohibited by section 1003 of the Detainee Treatment Act of 
2005. 

"§ 948s. Service of charges 

"The trial counsel assigned to a case before a military commis- 
sion 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. 

"9491. Voting and rulings. 



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S. 3930— 9 

"949m. Number of votes required. 

"949n. Military commission to announce action. 

"949o. Record of trial. 

"§ 949a. Rules 

"(a) Procedures and Rules of Evidence. — Pretrial, trial, and 
post-trial procedures, including elements and modes of proof, for 
cases triable by military commission under this chapter may be 
prescribed by the Secretary of Defense, in consultation with the 
Attorney General. Such procedures shall, so far as the Secretary 
considers practicable or consistent with military or intelligence 
activities, apply the principles of law and the rules of evidence 
in trial by general courts-martial. Such procedures and rules of 
evidence may not be contrary to or inconsistent with this chapter. 
"(b) Rules for Military Commission. — (1) Notwithstanding 
any departures from the law and the rules of evidence in trial 
by general courts-martial authorized by subsection (a), the proce- 
dures and rules of evidence in trials by military commission under 
this chapter shall include the following: 

"(A) The accused shall be permitted to present evidence 
in his defense, to cross-examine the witnesses who testify 
against him, and to examine and respond to evidence admitted 
against him on the issue of guilt or innocence and for sen- 
tencing, as provided for by this chapter. 

"(B) The accused shall be present at all sessions of the 

military commission (other than those for deliberations or 

voting), except when excluded under section 949d of this title. 

"(C) The accused shall receive the assistance of counsel 

as provided for by section 948k. 

"(D) The accused shall be permitted to represent himself, 
as provided for by paragraph (3). 

"(2) In establishing procedures and rules of evidence for military 
commission proceedings, the Secretary of Defense may prescribe 
the following provisions: 

"(A) Evidence shall be admissible if the military judge 
determines that the evidence would have probative value to 
a reasonable person. 

"(B) Evidence shall not be excluded from trial by military 
commission on the grounds that the evidence was not seized 
pursuant to a search warrant or other authorization. 

"(C) A statement of the accused that is otherwise admissible 
shall not be excluded from trial by military commission on 
grounds of alleged coercion or compulsory self-incrimination 
so long as the evidence complies with the provisions of section 
948r of this title. 

"(D) Evidence shall be admitted as authentic so long as — 
"(i) the military judge of the military commission deter- 
mines that there is sufficient basis to find that the evidence 
is what it is claimed to be; and 

"(ii) the military judge instructs the members that 
they may consider any issue as to authentication or identi- 
fication of evidence in determining the weight, if any, to 
be given to the evidence. 

"(E)(i) Except as provided in clause (ii), hearsay evidence 
not otherwise admissible under the rules of evidence applicable 
in trial by general courts-martial may be admitted in a trial 
by military commission if the proponent of the evidence makes 
known to the adverse party, sufficiently in advance to provide 



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S. 3930— 10 

the adverse party with a fair opportunity to meet the evidence, 
the intention of the proponent to offer the evidence, and the 
particulars of the evidence (including information on the gen- 
eral circumstances under which the evidence was obtained). 
The disclosure of evidence under the preceding sentence is 
subject to the requirements and limitations applicable to the 
disclosure of classified information in section 949j(c) of this 
title. 

"(h) Hearsay evidence not otherwise admissible under the 
rules of evidence applicable in trial by general courts-martial 
shall not be admitted in a trial by military commission if 
the party opposing the admission of the evidence demonstrates 
that the evidence is unreliable or lacking in probative value. 
"(F) The military judge shall exclude any evidence the 
probative value of which is substantially outweighed — 

"(i) by the danger of unfair prejudice, confusion of 
the issues, or misleading the commission; or 

"(ii) by considerations of undue delay, waste of time, 
or needless presentation of cumulative evidence. 
"(3)(A) The accused in a military commission under this chapter 
who exercises the right to self-representation under paragraph 
(1)(D) shall conform his deportment and the conduct of the defense 
to the rules of evidence, procedure, and decorum applicable to 
trials by military commission. 

"(B) Failure of the accused to conform to the rules described 
in subparagraph (A) may result in a partial or total revocation 
by the military judge of the right of self-representation under para- 
graph (1)(D). In such case, the detailed defense counsel of the 
accused or an appropriately authorized civilian counsel shall per- 
form the functions necessary for the defense. 

"(c) Delegation of Authority To Prescribe Regulations. — 
The Secretary of Defense may delegate the authority of the Sec- 
retary to prescribe regulations under this chapter. 

"(d) 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. 

"§ 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 — 

"(A) the action of a military commission under this chapter, 

or any member thereof, in reaching the findings or sentence 

in any case; 

"(B) the action of any convening, approving, or reviewing 

authority with respect to his judicial acts; or 

"(C) the exercise of professional judgment by trial counsel 

or defense counsel. 



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S. 3930— 11 

"(3) Paragraphs (1) and (2) do not apply with respect to — 
"(A) general instructional or informational courses in mili- 
tary 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 Commis- 
sion in Evaluation of Fitness. — In the preparation of an effective- 
ness, fitness, or efficiency report or any other report or document 
used in whole or in part for the purpose of determining whether 
a commissioned officer of the armed forces is qualified to be 
advanced in grade, or in determining the assignment or transfer 
of any such officer or whether any such officer should be retained 
on active duty, no person may — 

"(1) consider or evaluate the performance of duty of any 
member of a military commission under this chapter; or 

"(2) give a less favorable rating or evaluation to any 
commissioned officer because of the zeal with which such officer, 
in acting as counsel, represented any accused before a military 
commission under this chapter. 

"§ 949c. Duties of trial counsel and defense counsel 

"(a) Trial Counsel. — The trial counsel of a military commis- 
sion 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 classi- 
fied 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 protec- 
tion 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, detailed 
military counsel 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 mili- 
tary counsel to represent the accused. 



Case 1 :05-cv-01 458-UNA-AK Document 28-2 Filed 1 0/1 8/2006 Page 1 3 of 39 



S. 3930— 12 

"(7) Defense counsel may cross-examine each witness for the 
prosecution who testifies before a military commission under this 
chapter. 

"§ 949d. Sessions 

"(a) Sessions Without Presence of Members. — (1) At any 
time after the service of charges which have been referred for 
trial by military commission under this chapter, the military judge 
may call the military commission into session without the presence 
of the members for the purpose of — 

"(A) hearing and determining motions raising defenses or 

objections which are capable of determination without trial 

of the issues raised by a plea of not guilty; 

"(B) hearing and ruling upon any matter which may be 

ruled upon by the military judge under this chapter, whether 

or not the matter is appropriate for later consideration or 

decision by the members; 

"(C) if permitted by regulations prescribed by the Secretary 

of Defense, receiving the pleas of the accused; and 

"(D) performing any other procedural function which may 

be performed by the military judge under this chapter or under 

rules prescribed pursuant to section 949a of this title and 

which does not require the presence of the members. 

"(2) Except as provided in subsections (c) and (e), any pro- 
ceedings 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 pro- 
vided in subsections (c) and (e), all proceedings of a military commis- 
sion 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) The military judge may close to the public all or a portion 
of the proceedings under paragraph (1) only upon making a specific 
finding that such closure is necessary to — 

"(A) protect information the disclosure of which could 

reasonably be expected to cause damage to the national secu- 
rity, including intelligence or law enforcement sources, methods, 

or activities; or 

"(B) ensure the physical safety of individuals. 

"(3) A finding under paragraph (2) may be based upon a presen- 
tation, including a presentation ex parte or in camera, by either 
trial counsel or defense counsel. 

"(e) Exclusion of Accused From Certain Proceedings. — 
The military judge may exclude the accused from any portion of 
a proceeding upon a determination that, after being warned by 



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S. 3930— 13 

the military judge, the accused persists in conduct that justifies 
exclusion from the courtroom — 

"(1) to ensure the physical safety of individuals; or 
"(2) to prevent disruption of the proceedings by the accused. 
"(f) Protection of Classified Information. — 

"(1) National security privilege. — (A) Classified 
information shall be protected and is privileged from disclosure 
if disclosure would be detrimental to the national security. 
The rule in the preceding sentence applies to all stages of 
the proceedings of military commissions under this chapter. 
"(B) The privilege referred to in subparagraph (A) may 
be claimed by the head of the executive or military department 
or government agency concerned based on a finding by the 
head of that department or agency that — 

"(i) the information is properly classified; and 
"(ii) disclosure of the information would be detrimental 
to the national security. 

"(C) A person who may claim the privilege referred to 
in subparagraph (A) may authorize a representative, witness, 
or trial counsel to claim the privilege and make the finding 
described in subparagraph (B) on behalf of such person. The 
authority of the representative, witness, or trial counsel to 
do so is presumed in the absence of evidence to the contrary. 
"(2) Introduction of classified information. — 

"(A) Alternatives to disclosure. — To protect classi- 
fied information from disclosure, the military judge, upon 
motion of trial counsel, shall authorize, to the extent 
practicable — 

"(i) the deletion of specified items of classified 
information from documents to be introduced as evi- 
dence before the military commission; 

"(ii) the substitution of a portion or summary of 
the information for such classified documents; or 

"(hi) the substitution of a statement of relevant 
facts that the classified information would tend to 
prove. 

"(B) Protection of sources, methods, or activi- 
ties. — The military judge, upon motion of trial counsel, 
shall permit trial counsel to introduce otherwise admissible 
evidence before the military commission, while protecting 
from disclosure the sources, methods, or activities by which 
the United States acquired the evidence if the military 
judge finds that (i) the sources, methods, or activities by 
which the United States acquired the evidence are classi- 
fied, and (ii) the evidence is reliable. The military judge 
may require trial counsel to present to the military commis- 
sion and the defense, to the extent practicable and con- 
sistent with national security, an unclassified summary 
of the sources, methods, or activities by which the United 
States acquired the evidence. 

"(C) Assertion of national security privilege at 
trial. — During the examination of any witness, trial 
counsel may object to any question, line of inquiry, or 
motion to admit evidence that would require the disclosure 
of classified information. Following such an objection, the 
military judge shall take suitable action to safeguard such 
classified information. Such action may include the review 



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S. 3930— 14 

of trial counsel's claim of privilege by the military judge 
in camera and on an ex parte basis, and the delay of 
proceedings to permit trial counsel to consult with the 
department or agency concerned as to whether the national 
security privilege should be asserted. 

"(3) Consideration of privilege and related mate- 
rials. — A claim of privilege under this subsection, and any 
materials submitted in support thereof, shall, upon request 
of the Government, be considered by the military judge in 
camera and shall not be disclosed to the accused. 

"(4) Additional regulations. — The Secretary of Defense 
may prescribe additional regulations, consistent with this sub- 
section, for the use and protection of classified information 
during proceedings of military commissions under this chapter. 
A report on any regulations so prescribed, or modified, shall 
be submitted to the Committees on Armed Services of the 
Senate and the House of Representatives not later than 60 
days before the date on which such regulations or modifications, 
as the case may be, go into effect. 

"§ 949e. 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. 

"§ 949f. Challenges 

"(a) Challenges Authorized. — The military judge and mem- 
bers 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 addi- 
tional members are presented and decided, each accused and the 
trial counsel are entitled to one peremptory challenge against mem- 
bers not previously subject to peremptory challenge. 

"§ 949g. Oaths 

"(a) In General. — (1) Before performing their respective duties 
in a military commission under this chapter, military judges, mem- 
bers, 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 



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S. 3930— 15 

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. 

"§ 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. 

"§ 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 sen- 
tence, in which event the proceedings shall continue as though 
the accused had pleaded not guilty. 

"§949j. Opportunity to obtain witnesses and other evidence 

"(a) Right of Defense Counsel. — Defense counsel in a mili- 
tary commission under this chapter shall have a reasonable oppor- 
tunity to obtain witnesses and other evidence as provided in regula- 
tions 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) Protection of Classified Information. — (1) With respect 
to the discovery obligations of trial counsel under this section, 
the military judge, upon motion of trial counsel, shall authorize, 
to the extent practicable — 

"(A) the deletion of specified items of classified information 
from documents to be made available to the accused; 

"(B) the substitution of a portion or summary of the 
information for such classified documents; or 



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S. 3930— 16 

"(C) the substitution of a statement admitting relevant 

facts that the classified information would tend to prove. 

"(2) The military judge, upon motion of trial counsel, shall 
authorize trial counsel, in the course of complying with discovery 
obligations under this section, to protect from disclosure the sources, 
methods, or activities by which the United States acquired evidence 
if the military judge finds that the sources, methods, or activities 
by which the United States acquired such evidence are classified. 
The military judge may require trial counsel to provide, to the 
extent practicable, an unclassified summary of the sources, methods, 
or activities by which the United States acquired such evidence. 

"(d) Exculpatory Evidence. — (1) As soon as practicable, trial 
counsel shall disclose to the defense the existence of any evidence 
known to trial counsel that reasonably tends to exculpate the 
accused. Where exculpatory evidence is classified, the accused shall 
be provided with an adequate substitute in accordance with the 
procedures under subsection (c). 

"(2) In this subsection, the term 'evidence known to trial 
counsel', in the case of exculpatory evidence, means exculpatory 
evidence that the prosecution would be required to disclose in 
a trial by general court-martial under chapter 47 of this title. 

"§ 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. 

"§ 9491. 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. 



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S. 3930— 17 

"(2) Any ruling made by the military judge upon a question 
of law or an interlocutory question (other than the factual issue 
of mental responsibility of the accused) is conclusive and constitutes 
the ruling of the military commission. However, a military judge 
may change his ruling at any time during the trial. 

"(c) Instructions Prior to Vote. — Before a vote is taken 
of the findings of a military commission under this chapter, the 
military judge shall, in the presence of the accused and counsel, 
instruct the members as to the elements of the offense and charge 
the members — 

"(1) that the accused must be presumed to be innocent 
until his guilt is established by legal and competent evidence 
beyond a reasonable doubt; 

"(2) that in the case being considered, if there is a reason- 
able doubt as to the guilt of the accused, the doubt must 
be resolved in favor of the accused and he must be acquitted; 
"(3) that, if there is reasonable doubt as to the degree 
of guilt, the finding must be in a lower degree as to which 
there is no reasonable doubt; and 

"(4) that the burden of proof to establish the guilt of the 
accused beyond a reasonable doubt is upon the United States. 

"§ 949m. Number of votes required 

"(a) 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 or the law of war for an offense of which the 

accused has been found guilty; 

"(B) trial counsel expressly sought the penalty of death 

by filing an appropriate notice in advance of trial; 

"(C) the accused is convicted of the offense by the concur- 
rence of all the members present at the time the vote is taken; 

and 

"(D) all the members present at the time the vote is taken 

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 mili- 
tary 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 



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S. 3930— 18 

a detailed written statement, to be appended to the record, stating 
why a greater number of members were not reasonably available. 

"§ 949n. Military commission to announce action 

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

"§ 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 consistent 
with the requirements of section 949d of this title. Defense counsel 
shall have access to the unredacted record, as provided in regula- 
tions prescribed by the Secretary of Defense. 

"SUBCHAPTER V— SENTENCES 

"Sec. 

"949s. Cruel or unusual punishments prohibited. 

"949t. Maximum limits. 

"949u. Execution of confinement. 

"§ 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. 

"§ 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. 

"§ 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 



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S. 3930— 19 

"(2) in any penal or correctional institution under the con- 
trol 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. Appellate referral; 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; procedures for execution of sentence of death. 
"950j. Finality or proceedings, findings, and sentences. 

"§ 950a. Error of law; lesser included offense 

"(a) Error of Law. — A finding or sentence of a military 
commission 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. 

"§ 950b. Review by the convening authority 

"(a) Notice to Convening Authority of Findings and Sen- 
tence. — The findings and sentence of a military commission under 
this chapter shall be reported in writing promptly to the convening 
authority after the announcement of the sentence. 

"(b) Submittal of Matters by Accused to Convening 
Authority. — (1) The accused may submit to the convening 
authority matters for consideration by the convening authority with 
respect to the findings and the sentence of the military commission 
under this chapter. 

"(2)(A) Except as provided in subparagraph (B), a submittal 
under paragraph (1) shall be made in writing within 20 days 
after the accused has been given an authenticated record of trial 
under section 949o(c) of this title. 

"(B) If the accused shows that additional time is required 
for the accused to make a submittal under paragraph (1), the 
convening authority 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 



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S. 3930—20 

a submittal under this subsection shall be deemed to have expired 
upon the submittal of a waiver under this paragraph to the con- 
vening 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 sen- 
tence 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 para- 
graphs (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 substan- 
tial 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 
"(hi) increase the severity of the sentence unless the sen- 
tence 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 con- 
vening 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 



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S. 3930— 21 

the convening authority when there is a lack of sufficient evidence 
in the record to support the findings. A rehearing as to the sentence 
may be ordered by the convening authority if the convening 
authority disapproves the sentence. 

"§950c. 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. 

"§ 950d. Appeal by the United States 

"(a) Interlocutory Appeal. — (1) Except as provided in para- 
graph (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 or section 949j(c) 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 may act only 
with respect to matters of law. 



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S. 3930—22 

"(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. 

"§ 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 manda- 
tory. 
"(2) Upon a rehearing, if the sentence approved after the first 
military commission was in accordance with a pretrial agreement 
and the accused at the rehearing changes his plea with respect 
to the charges or specifications upon which the pretrial agreement 
was based, or otherwise does not comply with pretrial agreement, 
the sentence as to those charges or specifications may include 
any punishment not in excess of that lawfully adjudged at the 
first military commission. 

"§ 950f. Review by Court of Military Commission Review 

"(a) 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 mili- 
tary judges prescribed by section 948j(b) of this title or shall be 
a civilian with comparable qualifications. No person may be 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 Commis- 
sion Review, in accordance with procedures prescribed under regula- 
tions 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 the Court of 
Military Commission Review under this section, the Court may 
act only with respect to matters of law. 



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S. 3930—23 

"§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 pro- 
vided 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 consider- 
ation 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 and the laws 

of the United States. 

"(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. 

"§ 950h. Appellate counsel 

"(a) Appointment. — The Secretary of Defense shall, by regula- 
tion, 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 Mili- 
tary 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 rep- 
resented 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 



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S. 3930—24 

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. 

"§950i. Execution of sentence; procedures for execution of 
sentence of death 

"(a) In General. — The Secretary of Defense is authorized to 
carry out a sentence imposed by a military commission under this 
chapter in accordance with such procedures as the Secretary may 
prescribe. 

"(b) 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. 

"(c) Execution of Sentence of Death Only Upon Final 
Judgment of Legality of Proceedings. — (1) If the sentence of 
a military commission under this chapter extends to death, the 
sentence may not be executed until there is a final judgment as 
to the legality of the proceedings (and with respect to death, 
approval under subsection (b)). 

"(2) A judgment 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 

"(hi) review is otherwise completed in accordance with 

the judgment of the Supreme Court. 

"(d) 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. 

"§ 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 Mili- 
tary 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 



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S. 3930—25 

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; contempt. 

"§ 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. 

"§ 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 who failed to take the necessary 
and reasonable measures to prevent such acts or to punish 
the perpetrators thereof. 

"§ 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. 

"§ 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. 



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S. 3930—26 

"§ 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. 

"§ 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. 

"§ 950v. Crimes triable by military commissions 

"(a) Definitions and Construction. — In this section: 

"(1) Military objective. — The term 'military objective' 
means — 

"(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 mili- 
tary advantage to the attacker under the circumstances 
at the time of the attack. 
"(2) Protected person. — The term 'protected person' 
means 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 sick- 
ness, wounds, or detention; and 

"(C) military medical or religious personnel. 
"(3) Protected property. — The term 'protected property' 
means 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 identi- 
fied by one of the distinctive emblems of the Geneva Conven- 
tions, but does not include civilian property that is a military 
objective. 

"(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 



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S. 3930—27 

"(B) death, damage, or injury incident to a lawful 

attack. 
"(b) Offenses. — The following offenses shall be triable by mili- 
tary commission under this chapter at any time without limitation: 

"(1) Murder of protected persons. — Any person subject 
to this chapter who intentionally kills one or more protected 
persons shall be punished by death or such other punishment 
as a military commission under this chapter may direct. 

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

"(3) Attacking civilian objects. — Any person subject to 
this chapter who intentionally engages in an attack upon a 
civilian object that is not a military objective shall be punished 
as a military commission under this chapter may direct. 

"(4) Attacking protected property. — Any person subject 
to this chapter who intentionally engages in an attack upon 
protected property shall be punished as a military commission 
under this chapter may direct. 

"(5) Pillaging. — Any person subject to this chapter who 
intentionally and in the absence of military necessity appro- 
priates or seizes property for private or personal use, without 
the consent of a person with authority to permit such appropria- 
tion or seizure, shall be punished as a military commission 
under this chapter may direct. 

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

"(7) Taking hostages. — Any person subject to this chapter 
who, having knowingly seized or detained one or more persons, 
threatens to kill, injure, or continue to detain such person 
or persons with the intent of compelling any nation, person 
other than the hostage, or group of persons to act or refrain 
from acting as an explicit or implicit condition for the safety 
or release of such person or persons, shall be punished, if 
death results to one or more of the victims, by death or such 
other punishment as a military commission under this chapter 
may direct, and, if death does not result to any of the victims, 
by such punishment, other than death, as a military commission 
under this chapter may direct. 

"(8) Employing poison or similar weapons. — Any person 
subject to this chapter who intentionally, as a method of war- 
fare, employs a substance or weapon that releases a substance 
that causes death or serious and lasting damage to health 
in the ordinary course of events, through its asphyxiating, 
bacteriological, or toxic properties, shall be punished, if death 



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S. 3930—28 

results to one or more of the victims, by death or such other 
punishment as a military commission under this chapter may 
direct, and, if death does not result to any of the victims, 
by such punishment, other than death, as a military commission 
under this chapter may direct. 

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

"(10) Using protected property as a shield. — Any per- 
son subject to this chapter who positions, or otherwise takes 
advantage of the location of, protected property with the intent 
to shield a military objective from attack, or to shield, favor, 
or impede military operations, shall be punished as a military 
commission under this chapter may direct. 
"(11) Torture.— 

"(A) Offense. — Any person subject to this chapter who 
commits an act specifically intended to inflict severe phys- 
ical or mental pain or suffering (other than pain or suf- 
fering incidental to lawful sanctions) upon another person 
within his custody or physical control for the purpose of 
obtaining information or a confession, punishment, intimi- 
dation, coercion, or any reason based on discrimination 
of any kind, shall be punished, if death results to one 
or more of the victims, by death or such other punishment 
as a military commission under this chapter may direct, 
and, if death does not result to any of the victims, by 
such punishment, other than death, as a military commis- 
sion under this chapter may direct. 

"(B) Severe mental pain or suffering defined. — 
In this section, the term 'severe mental pain or suffering' 
has the meaning given that term in section 2340(2) of 
title 18. 
"(12) Cruel or inhuman treatment. — 

"(A) Offense. — Any person subject to this chapter who 
commits an act intended to inflict severe or serious physical 
or mental pain or suffering (other than pain or suffering 
incidental to lawful sanctions), including serious physical 
abuse, upon another within his custody or control shall 
be punished, if death results to the victim, by death or 
such other punishment as a military commission under 
this chapter may direct, and, if death does not result to 
the victim, by such punishment, other than death, as a 
military commission under this chapter may direct. 
"(B) Definitions. — In this paragraph: 

"(i) The term 'serious physical pain or suffering' 
means bodily injury that involves — 

"(I) a substantial risk of death; 
"(II) extreme physical pain; 



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S. 3930—29 

"(HI) a burn or physical disfigurement of a 
serious nature (other than cuts, abrasions, or 
bruises); or 

"(IV) significant loss or impairment of the 
function of a bodily member, organ, or mental 
faculty. 

"(ii) The term 'severe mental pain or suffering' 
has the meaning given that term in section 2340(2) 
of title 18. 

"(hi) The term 'serious mental pain or suffering' 

has the meaning given the term 'severe mental pain 

or suffering' in section 2340(2) of title 18, except that — 

"(I) the term 'serious' shall replace the term 

'severe' where it appears; and 

"(II) as to conduct occurring after the date 
of the enactment of the Military Commissions Act 
of 2006, the term 'serious and non-transitory 
mental harm (which need not be prolonged)' shall 
replace the term 'prolonged mental harm' where 
it appears. 
"(13) Intentionally causing serious bodily injury. — 
"(A) Offense. — Any person subject to this chapter who 
intentionally causes serious bodily injury to one or more 
persons, including lawful combatants, in violation of the 
law of war shall be punished, if death results to one or 
more of the victims, by death or such other punishment 
as a military commission under this chapter may direct, 
and, if death does not result to any of the victims, by 
such punishment, other than death, as a military commis- 
sion under this chapter may direct. 

"(B) Serious bodily injury defined. — In this para- 
graph, the term 'serious bodily injury' means bodily injury 
which involves — 

"(i) a substantial risk of death; 
"(ii) extreme physical pain; 
"(hi) protracted and obvious disfigurement; or 
"(iv) protracted loss or impairment of the function 
of a bodily member, organ, or mental faculty. 
"(14) Mutilating or maiming. — Any person subject to this 
chapter who intentionally injures one or more protected persons 
by disfiguring the person or persons by any mutilation of the 
person or persons, or by permanently disabling any member, 
limb, or organ of the body of the person or persons, without 
any legitimate medical or dental purpose, shall be punished, 
if death results to one or more of the victims, by death or 
such other punishment as a military commission under this 
chapter may direct, and, if death does not result to any of 
the victims, by such punishment, other than death, as a military 
commission under this chapter may direct. 

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

"(16) Destruction of property in violation of the law 
of war. — Any person subject to this chapter who intentionally 
destroys property belonging to another person in violation of 



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S. 3930— 30 

the law of war shall punished as a military commission under 
this chapter may direct. 

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

"(18) Improperly using a flag of truce. — Any person 
subject to this chapter who uses a flag of truce to feign an 
intention to negotiate, surrender, or otherwise suspend hos- 
tilities when there is no such intention shall be punished as 
a military commission under this chapter may direct. 

"(19) Improperly using a distinctive emblem. — Any per- 
son subject to this chapter who intentionally uses a distinctive 
emblem recognized by the law of war for combatant purposes 
in a manner prohibited by the law of war shall be punished 
as a military commission under this chapter may direct. 

"(20) Intentionally mistreating a dead body. — Any per- 
son subject to this chapter who intentionally mistreats the 
body of a dead person, without justification by legitimate mili- 
tary necessity, shall be punished as a military commission 
under this chapter may direct. 

"(21) Rape. — Any person subject to this chapter who forc- 
ibly 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 pun- 
ished as a military commission under this chapter may direct. 

"(22) Sexual assault or abuse. — Any person subject to 
this chapter who forcibly or with coercion or threat of force 
engages in sexual contact with one or more persons, or causes 
one or more persons to engage in sexual contact, shall be 
punished as a military commission under this chapter may 
direct. 

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

"(24) Terrorism. — Any person subject to this chapter who 
intentionally kills or inflicts great bodily harm on one or more 
protected persons, or intentionally engages in an act that 
evinces a wanton disregard for human life, in a manner cal- 
culated to influence or affect the conduct of government or 
civilian population by intimidation or coercion, or to retaliate 
against government conduct, shall be punished, if death results 



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S. 3930— 31 

to one or more of the victims, by death or such other punish- 
ment as a military commission under this chapter may direct, 
and, if death does not result to any of the victims, by such 
punishment, other than death, as a military commission under 
this chapter may direct. 

"(25) Providing material support for terrorism. — 

"(A) Offense. — Any person subject to this chapter who 
provides material support or resources, knowing or 
intending that they are to be used in preparation for, 
or in carrying out, an act of terrorism (as set forth in 
paragraph (24)), or who intentionally provides material 
support or resources to an international terrorist organiza- 
tion engaged in hostilities against the United States, 
knowing that such organization has engaged or engages 
in terrorism (as so set forth), shall be punished as a military 
commission under this chapter may direct. 

"(B) Material support or resources defined. — In 
this paragraph, the term 'material support or resources' 
has the meaning given that term in section 2339A(b) of 
title 18. 

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

"(27) Spying. — Any person subject to this chapter 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 information by clandestine means 
or while acting under false pretenses, for the purpose of con- 
veying such information to an enemy of the United States, 
or one of the co-belligerents of the enemy, shall be punished 
by death or such other punishment as a military commission 
under this chapter may direct. 

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

"§ 950w. Perjury and obstruction of justice; contempt 

"(a) Perjury and Obstruction of Justice. — A military 
commission under this chapter may try offenses and impose such 
punishment as the military commission may direct for perjury, 
false testimony, or obstruction of justice related to military commis- 
sions under this chapter. 

"(b) 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.". 

(2) Tables of chapters amendments. — The tables of chap- 
ters at the beginning of subtitle A, and at the beginning of 



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S. 3930—32 

part II of subtitle A, of title 10, United States Code, are each 
amended by inserting after the item relating to chapter 47 
the following new item: 

"47A. Military Commissions 948a". 

(b) Submittal of Procedures to Congress. — Not later than 
90 days after the date of the enactment of this Act, the Secretary 
of Defense shall submit to the Committees on Armed Services 
of the Senate and the House of Representatives a report setting 
forth the procedures for military commissions prescribed under 
chapter 47A of title 10, United States Code (as added by subsection 
(a)). 

SEC. 4. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE. 

(a) Conforming Amendments. — Chapter 47 of title 10, United 
States Code (the Uniform Code of Military Justice), is amended 
as follows: 

(1) Applicability to lawful enemy combatants. — Section 
802(a) (article 2(a)) is amended by adding at the end the fol- 
lowing new paragraph: 

"(13) Lawful enemy combatants (as that term is defined 
in section 948a(2) of this title) who violate the law of war.". 

(2) Exclusion of applicability to chapter 47a commis- 
sions.— Sections 821, 828, 848, 850(a), 904, and 906 (articles 
21, 28, 48, 50(a), 104, and 106) are amended by adding at 
the end the following new sentence: "This section does not 
apply to a military commission established under chapter 47A 
of this title.". 

(3) Inapplicability of requirements relating to regu- 
lations. — Section 836 (article 36) is amended — 

(A) in subsection (a), by inserting ", except as provided 
in chapter 47A of this title," after "but which may not"; 
and 

(B) in subsection (b), by inserting before the period 
at the end ", except insofar as applicable to military 
commissions established under chapter 47A of this title". 

(b) Punitive Article of Conspiracy. — Section 881 of title 
10, United States Code (article 81 of the Uniform Code of Military 
Justice), is amended — 

(1) by inserting "(a)" before "Any person"; and 

(2) by adding at the end the following new subsection: 
"(b) Any person subject to this chapter who conspires with 

any other person to commit an offense under the law of war, 
and who knowingly does an overt act to effect the object of the 
conspiracy, shall be punished, if death results to one or more 
of the victims, by death or such other punishment as a court- 
martial or military commission may direct, and, if death does not 
result to any of the victims, by such punishment, other than death, 
as a court-martial or military commission may direct.". 

SEC. 5. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CER- 
TAIN CLAIMS. 

(a) In General. — No person may invoke the Geneva Conven- 
tions or any protocols thereto in any habeas corpus or other civil 
action or proceeding to which the United States, or a current 
or former officer, employee, member of the Armed Forces, or other 
agent of the United States is a party as a source of rights in 
any court of the United States or its States or territories. 



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S. 3930— 33 

(b) Geneva Conventions Defined. — In this section, the term 
"Geneva Conventions" means — 

(1) the Convention for the Amelioration of the Condition 
of the Wounded and Sick in Armed Forces in the Field, done 
at Geneva August 12, 1949 (6 UST 3114); 

(2) the Convention for the Amelioration of the Condition 
of the Wounded, Sick, and Shipwrecked Members of the Armed 
Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217); 

(3) the Convention Relative to the Treatment of Prisoners 
of War, done at Geneva August 12, 1949 (6 UST 3316); and 

(4) the Convention Relative to the Protection of Civilian 
Persons in Time of War, done at Geneva August 12, 1949 
(6 UST 3516). 

SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS. 

(a) Implementation of Treaty Obligations. — 

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

(2) Prohibition on grave breaches. — The provisions of 
section 2441 of title 18, United States Code, as amended by 
this section, fully satisfy the obligation under Article 129 of 
the Third Geneva Convention for the United States to provide 
effective penal sanctions for grave breaches which are encom- 
passed in common Article 3 in the context of an armed conflict 
not of an international character. No foreign or international 
source of law shall supply a basis for a rule of decision in 
the courts of the United States in interpreting the prohibitions 
enumerated in subsection (d) of such section 2441. 

(3) Interpretation by the president. — 

(A) As provided by the Constitution and by this section, 
the President has the authority for the United States to 
interpret the meaning and application of the Geneva 
Conventions and to promulgate higher standards and 
administrative regulations for violations of treaty obliga- 
tions which are not grave breaches of the Geneva Conven- 
tions. 

(B) The President shall issue interpretations described 
by subparagraph (A) by Executive Order published in the 
Federal Register. 

(C) Any Executive Order published under this para- 
graph shall be authoritative (except as to grave breaches 
of common Article 3) as a matter of United States law, 
in the same manner as other administrative regulations. 

(D) Nothing in this section shall be construed to affect 
the constitutional functions and responsibilities of Congress 
and the judicial branch of the United States. 

(4) Definitions. — In this subsection: 

(A) Geneva conventions. — The term "Geneva Conven- 
tions" means — 

(i) the Convention for the Amelioration of the 
Condition of the Wounded and Sick in Armed Forces 
in the Field, done at Geneva August 12, 1949 (6 UST 
3217); 



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S. 3930—34 

(ii) the Convention for the Amelioration of the 
Condition of the Wounded, Sick, and Shipwrecked 
Members of the Armed Forces at Sea, done at Geneva 
August 12, 1949 (6 UST 3217); 

(hi) the Convention Relative to the Treatment of 
Prisoners of War, done at Geneva August 12, 1949 
(6 UST 3316); and 

(iv) the Convention Relative to the Protection of 
Civilian Persons in Time of War, done at Geneva 
August 12, 1949 (6 UST 3516). 

(B) Third geneva convention. — The term "Third 
Geneva Convention" means the international convention 
referred to in subparagraph (A)(iii). 
(b) Revision to War Crimes Offense Under Federal 
Criminal Code. — 

(1) In general. — Section 2441 of title 18, United States 
Code, is amended — 

(A) in subsection (c), by striking paragraph (3) and 
inserting the following new paragraph (3): 

"(3) which constitutes a grave breach of common Article 
3 (as defined in subsection (d)) when committed in the context 
of and in association with an armed conflict not of an inter- 
national character; or"; and 

(B) by adding at the end the following new subsection: 
"(d) Common Article 3 Violations. — 

"(1) Prohibited conduct. — In subsection (c)(3), the term 
'grave breach of common Article 3' means any conduct (such 
conduct constituting a grave breach of common Article 3 of 
the international conventions done at Geneva August 12, 1949), 
as follows: 

"(A) Torture. — The act of a person who commits, or 
conspires or attempts to commit, an act specifically 
intended to inflict severe physical or mental pain or suf- 
fering (other than pain or suffering incidental to lawful 
sanctions) upon another person within his custody or phys- 
ical control for the purpose of obtaining information or 
a confession, punishment, intimidation, coercion, or any 
reason based on discrimination of any kind. 

"(B) Cruel or inhuman treatment. — The act of a 
person who commits, or conspires or attempts to commit, 
an act intended to inflict severe or serious physical or 
mental pain or suffering (other than pain or suffering inci- 
dental to lawful sanctions), including serious physical 
abuse, upon another within his custody or control. 

"(C) Performing biological experiments. — The act 
of a person who subjects, or conspires or attempts to sub- 
ject, one or more persons within his custody or physical 
control to biological experiments without a legitimate med- 
ical or dental purpose and in so doing endangers the body 
or health of such person or persons. 

"(D) Murder. — The act of a person who intentionally 
kills, or conspires or attempts to kill, or kills whether 
intentionally or unintentionally in the course of committing 
any other offense under this subsection, one or more per- 
sons taking no active part in the hostilities, including those 
placed out of combat by sickness, wounds, detention, or 
any other cause. 



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S. 3930— 35 

"(E) Mutilation or maiming. — The act of a person 
who intentionally injures, or conspires or attempts to 
injure, or injures whether intentionally or unintentionally 
in the course of committing any other offense under this 
subsection, one or more persons taking no active part in 
the hostilities, including those placed out of combat by 
sickness, wounds, detention, or any other cause, by dis- 
figuring 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 pur- 
pose. 

"(F) Intentionally causing serious bodily injury. — 
The act of a person who intentionally causes, or conspires 
or attempts to cause, serious bodily injury to one or more 
persons, including lawful combatants, in violation of the 
law of war. 

"(G) Rape. — The act of a person who forcibly or with 
coercion or threat of force wrongfully invades, or conspires 
or attempts to invade, the body of a person by penetrating, 
however slightly, the anal or genital opening of the victim 
with any part of the body of the accused, or with any 
foreign object. 

"(H) Sexual assault or abuse. — The act of a person 
who forcibly or with coercion or threat of force engages, 
or conspires or attempts to engage, in sexual contact with 
one or more persons, or causes, or conspires or attempts 
to cause, one or more persons to engage in sexual contact. 

"(I) Taking hostages. — The act of a person who, 
having knowingly seized or detained one or more persons, 
threatens to kill, injure, or continue to detain such person 
or persons with the intent of compelling any nation, person 
other than the hostage, or group of persons to act or refrain 
from acting as an explicit or implicit condition for the 
safety or release of such person or persons. 
"(2) Definitions. — In the case of an offense under sub- 
section (a) by reason of subsection (c)(3) — 

"(A) the term 'severe mental pain or suffering' shall 
be applied for purposes of paragraphs (1)(A) and (1)(B) 
in accordance with the meaning given that term in section 
2340(2) of this title; 

"(B) the term 'serious bodily injury' shall be applied 
for purposes of paragraph (1)(F) in accordance with the 
meaning given that term in section 113(b)(2) of this title; 

"(C) the term 'sexual contact' shall be applied for pur- 
poses of paragraph (1)(G) in accordance with the meaning 
given that term in section 2246(3) of this title; 

"(D) the term 'serious physical pain or suffering' shall 
be applied for purposes of paragraph (1)(B) as meaning 
bodily injury that involves — 

"(i) a substantial risk of death; 

"(ii) extreme physical pain; 

"(hi) a burn or physical disfigurement of a serious 

nature (other than cuts, abrasions, or bruises); or 

"(iv) significant loss or impairment of the function 

of a bodily member, organ, or mental faculty; and 

"(E) the term 'serious mental pain or suffering' shall 
be applied for purposes of paragraph (1)(B) in accordance 



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S. 3930— 36 

with the meaning given the term 'severe mental pain or 
suffering' (as defined in section 2340(2) of this title), except 
that— 

"(i) the term 'serious' shall replace the term 'severe' 
where it appears; and 

"(ii) as to conduct occurring after the date of the 
enactment of the Military Commissions Act of 2006, 
the term 'serious and non-transitory mental harm 
(which need not be prolonged)' shall replace the term 
'prolonged mental harm' where it appears. 
"(3) Inapplicability of certain provisions with respect 
TO COLLATERAL damage or incident of lawful attack. — 
The intent specified for the conduct stated in subparagraphs 
(D), (E), and (F) or paragraph (1) precludes the applicability 
of those subparagraphs to an offense under subsection (a) by 
reasons of subsection (c)(3) with respect to — 
"(A) collateral damage; or 

"(B) death, damage, or injury incident to a lawful 
attack. 

"(4) Inapplicability of taking hostages to prisoner 
exchange. — Paragraph (1)(I) does not apply to an offense under 
subsection (a) by reason of subsection (c)(3) in the case of 
a prisoner exchange during wartime. 

"(5) Definition of grave breaches. — The definitions in 
this subsection are intended only to define the grave breaches 
of common Article 3 and not the full scope of United States 
obligations under that Article.". 

(2) Retroactive applicability. — The amendments made 
by this subsection, except as specified in subsection (d)(2)(E) 
of section 2441 of title 18, United States Code, shall take 
effect as of November 26, 1997, as if enacted immediately 
after the amendments made by section 583 of Public Law 
105-118 (as amended by section 4002(e)(7) of Public Law 107- 
273). 

(c) Additional Prohibition on Cruel, Inhuman, or 
Degrading Treatment or Punishment. — 

(1) In general. — No individual in the custody or under 
the physical control of the United States Government, regard- 
less of nationality or physical location, shall be subject to cruel, 
inhuman, or degrading treatment or punishment. 

(2) Cruel, inhuman, or degrading treatment or punish- 
ment defined. — In this subsection, the term "cruel, inhuman, 
or degrading treatment or punishment" means cruel, unusual, 
and inhumane treatment or punishment prohibited by the Fifth, 
Eighth, and Fourteenth Amendments to the Constitution of 
the United States, as defined in the United States Reservations, 
Declarations and Understandings to the United Nations 
Convention Against Torture and Other Forms of Cruel, 
Inhuman or Degrading Treatment or Punishment done at New 
York, December 10, 1984. 

(3) Compliance. — The President shall take action to ensure 
compliance with this subsection, including through the 
establishment of administrative rules and procedures. 

SEC. 7. HABEAS CORPUS MATTERS. 

(a) In General. — Section 2241 of title 28, United States Code, 
is amended by striking both the subsection (e) added by section 



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S. 3930— 37 

1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the sub- 
section (e) added by added by section 1405(e)(1) of Public Law 
109-163 (119 Stat. 3477) and inserting the following new subsection 
(e): 

"(e)(1) No court, justice, or judge shall have jurisdiction to 
hear or consider an application for a writ of habeas corpus filed 
by or on behalf of an alien detained by the United States who 
has been determined by the United States to have been properly 
detained as an enemy combatant or is awaiting such determination. 

"(2) Except as provided in paragraphs (2) and (3) of section 
1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 
note), no court, justice, or judge shall have jurisdiction to hear 
or consider any other action against the United States or its agents 
relating to any aspect of the detention, transfer, treatment, trial, 
or conditions of confinement of an alien who is or was detained 
by the United States and has been determined by the United 
States to have been properly detained as an enemy combatant 
or is awaiting such determination.". 

(b) Effective Date. — The amendment made by subsection (a) 
shall take effect on the date of the enactment of this Act, and 
shall apply to all cases, without exception, pending on or after 
the date of the enactment of this Act which relate to any aspect 
of the detention, transfer, treatment, trial, or conditions of detention 
of an alien detained by the United States since September 11, 
2001. 

SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING 
TO PROTECTION OF CERTAIN UNITED STATES GOVERN- 
MENT PERSONNEL. 

(a) Counsel and Investigations. — Section 1004(b) of the 
Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-l(b)) is 
amended — 

(1) by striking "may provide" and inserting "shall provide"; 

(2) by inserting "or investigation" after "criminal prosecu- 
tion"; and 

(3) by inserting "whether before United States courts or 
agencies, foreign courts or agencies, or international courts 
or agencies," after "described in that subsection". 

(b) Protection of Personnel. — Section 1004 of the Detainee 
Treatment Act of 2005 (42 U.S.C. 2000dd-l) shall apply with respect 
to any criminal prosecution that — 

(1) relates 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; and 

(3) relates to actions occurring between September 11, 
2001, and December 30, 2005. 

SEC. 9. REVIEW OF JUDGMENTS OF MILITARY COMMISSIONS. 

Section 1005(e)(3) of the Detainee Treatment Act of 2005 (title 
X of Public Law 109-148; 119 Stat. 2740; 10 U.S.C. 801 note) 
is amended — 

(1) in subparagraph (A), by striking "pursuant to Military 
Commission Order No. 1. dated August 31, 2005 (or any suc- 
cessor military order)" and inserting "by a military commission 
under chapter 47A of title 10, United States Code"; 

(2) by striking subparagraph (B) and inserting the following 
new subparagraph (B): 



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S. 3930— 38 

"(B) Grant of review. — Review under this paragraph 
shall be as of right."; 

(3) in subparagraph (C) — 

(A) in clause (i) — 

(i) by striking "pursuant to the military order" 
and inserting "by a military commission"; and 

(ii) by striking "at Guantanamo Bay, Cuba"; and 

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

(4) in subparagraph (D)(i), by striking "specified in the 
military order" and inserting "specified for a military commis- 
sion". 

SEC. 10. DETENTION COVERED BY REVIEW OF DECISIONS OF COMBAT- 
ANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF 
DETENTION. 

Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 2005 
(title X of Public Law 109-148; 119 Stat. 2742; 10 U.S.C. 801 
note) is amended by striking "the Department of Defense at Guanta- 
namo Bay, Cuba" and inserting "the United States". 



Speaker of the House of Representatives. 



Vice President of the United States and 

President of the Senate.