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Week Ending September 29, 2006
H.R.6166 To amend title 10, United States Code, to authorize trial by military commission for violations of the law of war, and for other purposes.
The main focus of this bill is to establish legal procedures by which unlawful enemy combatants can be tried for war crimes. An unlawful enemy combatant (UEC) is defined in the bill as one who is part of or affiliated with a force or organization that is engaged in hostilities against the US in violation of the law of war. The definition includes those who have committed a hostile act in aid of such a force or organization or has supported hostilities through aid. Those detained as enemy combatants are included and the bill specifies al Qaeda, the Taliban and any international terrorist organization or their associated forces.
The bill further establishes who is not an unlawful enemy combatant by defining who is not subject to the provisions of this bill-Anyone determined by the President and the Secretary of Defense as a lawful enemy combatant (prisoners of war included) and a civilian protected by international law. (Civilians not taking an active part in the hostilities, military personnel placed hors de combat by sickness, wounds or detention and military medical or religious personnel) A lawful enemy combatant would be a member of the regular forces of a State engaged in hostilities with the US, a member of a militia, volunteer corps or organized resistance under a responsible command who carry arms openly, wear distinctive sign recognizable from a distance and who abide by the law of war. Included is a member of a regular armed force who professes allegiance to a government engaged in hostilities against the US.
The bill creates a new section in Title 10 US Code regarding military commissions that try activities of lawful enemy combatants. The new chapter-47A-is specific to trying unlawful enemy combatants. Such individuals would be tried by a military commission established by the Secretary of Defense or any officer or official of the US he designates. Commission members (akin to a jury) would be fully qualified by age, education, training, experience, length of service and judicial temperament and may not be the accuser or a witness for the prosecution or an investigator or counsel in the case. A military judge would govern the proceedings. The judge must be a commissioned officer, a member of the bar of a federal court or highest State court and is certified as qualified as a military judge in general court-martial by the Judge Advocate General.
In a very general description that represents the overall tone of the new rules, the bill provides that: the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt; that if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted; 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. The burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the United States. Two-thirds of commission members present must vote for conviction to find guilt. Three-fourths present must agree on any sentence bringing confinement for more than ten years or life. In the case of the death penalty no one can be so sentenced unless the death penalty is established as a punishment for the crime, the prosecutor expressed in advance he is seeking the death sentence and the commission members unanimously found the accused guilty and all agree to the death sentence. Although the number of commission members can vary, at least 12 members must be present in cases where the death penalty is sought. If physical conditions or military exigencies dictate, the Secretary of Defense may narrow the number to nine members.
REPRESENTATION
The accused will be provided a qualified military defense counsel but may chose
representation by civilian counsel. Civilian counsel must be a US citizen,
member of the federal bar or a highest State bar, has not been subject to
sanction or disciplinary action by an court, bar or government authority for
misconduct qualified to practice law in a military commission and is determined
to be eligible for access to classified information of a Secret or greater
degree of classification and signs a written agreement to comply with applicable
regulations including rules of conduct during the proceedings. The accused will
not be excluded from any part of the trial other than when commission members
are voting or deliberating. The judge, however, may exclude the defendant to
ensure the physical safety of individuals or to prevent the accused from
disrupting the proceedings.
CHARGES
Charges would be certified under oath by a commissioned officer who must state he has personal knowledge of, or reason to believe, the matters in the charge are true to the best of his knowledge and belief. The accused be informed of the charges as soon as practicable.
The bill does not establish but codifies existing actions that violate US laws and would be triable by a military commission.
There are 27 violations: Murder of protected persons, attacking civilians, attacking civilian objects and property, attacking protected property pillaging, denying quarter (take no prisoners), hostage taking, employing poison or analogous weapons, using protected persons as shields, using protected property as shields, torture, cruel or inhuman treatment, intentionally causing serious bodily injury, cruel or inhuman treatment, intentionally causing serious bodily injury, mutilating or maiming, murder in violation of the law of war, destruction of property in the law of war, using treachery or perfidy (faithlessness), improperly using a flag of truce, improperly using a distinctive emblem, intentionally mistreating a dead body, rape, hijacking or hazarding a vessel or aircraft, terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, and conspiracy. (Read explanations of the violations)
TESTIMONY
The accused is prohibited from testifying against himself. Statements obtained by torture would be excluded “except against a person accused of torture as evidence the statement was made.”
CLASSIFIED AND OTHER EVIDENCE
“The trial counsel may not make a presentation requesting the admission of classified information outside the presence of the accused unless the head of the department or agency which has control over the matter certifies in writing to the military judge” the disclosure of the classified information to the accused could reasonably be expected to prejudice the national security; and that such evidence has been declassified to the maximum extent possible, consistent with the requirements of national security. The judge can close the trial to the public to protect classified information if it is reasonably expected to cause identifiable damage to the public interest, national security and intelligence of law enforcement sources, methods or activities and to ensure physical safety of individuals. The judge may not exclude the accused from any portion of a closed proceeding except when necessary to protect classified information the disclosure of which to the accused could be expected to damage the national security and those associated. The judge must specifically find that the exclusion is not overly broad and will not prohibit a fair trial. No evidence may be admitted that has not been provided to the accused unless the evidence is classified and the judge finds that considering the evidence without the presence of the accused is warranted, an unclassified summary or redacted version would not be adequate substitute and admission of the evidence would not deprive the accused of a full and fair trial. Accused defense counsel would have access to the classified evidence admitted without the presence of the accused. Defense counsel would not be obligated to disclose the information to the accused. A statement made by the accused under interrogation that has been classified must be disclosed to the accused.
If a statement by the accused was allegedly obtained through coercion the military judge must render the statement unreliable or lacking in probative value (serving to prove). Evidence that is believed to be obtained using techniques considered cruel, unusual or inhumane treatment or punishment would not be admissible if gathered after December 30, 2005, the date when Congress enacted the Detainee Treatment Act of 2005 that better clarified treatment of prisoners that was prohibited. Evidence gathered before that date and after September 11, 2001 would be admissible.
Evidence known to the prosecution that might exonerate or absolve the accused must be disclosed to the accused as soon as practicable. If the evidence is classified it can be provided to the defense counsel.
The military judge is given wide option for ruling on evidence and other considerations. The judge is allowed to change his rulings at any time during the trial.
RULES OF PROCEDURES AND EVIDENCE
The accused is permitted to present evidence in his defense, to cross examine the witnesses against him and respond to evidence admitted against him on the issue of guilt or innocence and for sentencing.
The accused shall be present at all sessions of the commission other than when voting.
Evidence shall be admissible if the military judge determines it would have probative value to a reasonable person. The evidence is not admissible on the grounds that the evidence was not seized pursuant to a search warrant or other authorization.
A statement by the accused that is otherwise admissible will not be excluded on grounds of alleged coercion or compulsory self-incrimination.
Evidence shall be admitted as authentic as long as the judge determines there is sufficient basis to find that the evidence is what it claims to be.
Hearsay evidence not otherwise admissible in a court martial trial may be admitted if the proponent of the evidence makes known to the defendant sufficiently in advance to give the defendant time to view the evidence, the intention to offer the evidence and the particulars of the evidence. Hearsay evidence is not otherwise admissible if the defendant demonstrates that the evidence is unreliable of lacking in probative value.
The Judge may exclude evidence if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the commission or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.
The Judge may close any or all hearings to the public to protect information the disclosure of which could reasonably be expected to cause damage to the national security including intelligence sources methods or activities or to ensure the physical safety of individuals.
HABEAS CORPUS
No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed on or on behalf of an alien detained by the US who has been determined by the US to have been properly detained as an enemy combatant or (is) awaiting that determination.
LEGAL ACTION AGAINST THE US FOR ILLEGAL TREATMENT OF DETAINEES SINCE SEPTEMBER 11, 2001
"No court, justice or judge shall have jurisdiction to hear or consider another action against the US 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 US and has been determined by the US to have been properly detained as an enemy combatant or is waiting that determination. This provision will apply to all cases, without exception, pending on or after the enactment of this bill which relate to any aspect of the detention, transfer, treatment, trial or conditions of detention of an alien detained by the US since September 11, 2001."
OTHER CONSIDERATIONS
The accused may not invoke the Geneva Convention or any protocols thereto in any habeas corpus or other civil action or proceeding in any US court. The matter in particular that may not be invoked relate to wounded and sick in the field and the treatment of prisoners of war and the protection of civilian persons in time of war.
The President of the United States is given the authority (and the bill says that authority is supported by the Constitution) to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations that are not grave breaches of the Geneva Conventions. The President would issue those interpretations in the Federal Register as an Executive Order. Grave breaches of conduct include torture, rape, and cruel and inhuman treatment.
No person may, without his consent, be tried by a military commission a second time for the same offense. A finding of guilt would not be final until after a review has been completed.
A death sentence may not be executed until the judgment is final and approved by the President. A death sentence is not final until the time for the accused to file for a review by the Court of Appeals.
Mental disease of defect does not constitute a defense but is relevant if, as a result, the accused was unable to appreciate the nature and quality of the wrongfulness of his acts and must be proven by the accused in clear and convincing evidence. The commission must then decide on guilty, not guilty or not guilty by reason of lack of mental responsibility.
Commission member votes will be by secret ballot and discussions and deliberations will not be done in the presence of the accused.
PUNISHMENTS
No cruel and unusual punishments are allowed including flogging, branding, marking and tattooing the body. Single or double irons can not be used except for safe custody. Sentences of confinement would be determined by the Secretary of Defense but must be in a place under the control of the US or its allies that allow US use.
REVIEW AND APPEAL
A decision will be immediately conveyed to the Secretary of Defense or another authority who convened the commission. The convening authority has the sole discretion to approve, disapprove, commute or suspend a sentence in whole or in part but may not increase a sentence and is not required to take any action on a commission judgment. The convening authority may dismiss any charge or specification by setting aside a guilty finding or reduce that guilty finding to a lesser charge. If the convening authority finds an error or omission in the record showing improper or inconsistent action by the commission that can be rectified without material prejudice to the accused, he may order a rehearing or a revision but not if there was a finding of not guilty. The exception to that rule would apply if under the not guilty finding there is a guilty finding on another charge that sufficiently alleges a violation or justifying an increase in the severity of the sentence if the sentence in not a blanket, mandatory sentence. If the death penalty is handed down the sentence can not be carried out until the case is thoroughly reviewed and the President agrees to that sentence.
An error of law would not be grounds to overturn a commission decision unless the error materially prejudices the rights of the accused. The reviewing authority that sets aside a guilty finding will have the authority to impose a lesser offense, where applicable, if the accused was accused of one.
All decision would be reviewed by the Court of Military Review if the decision is ‘guilty’.
The US can not appeal a finding of not guilty but can appeal decisions to terminate a commission or a judges decision to exclude evidence it thinks is substantial proof of military fact and some procedural actions.
A successful appeal by the accused can lead to a rehearing if appropriate. The accused can appeal a decision to the Circuit Court of the District of Columbia and the US Supreme Court. The scope of the Court of Appeals is limited to a determination if the military commission's decision is consistent with military commission standards and procedures and the Constitution.
Sponsor: Rep. Duncan Hunter (R-CA-52nd)
Vote: Passed House 253 168 (RC 491). A Motion to Recommit the bill with instructions failed 195 to 228 (RC 490) September 27, 2006
Cost to the taxpayers: “CBO estimates that implementing H.R. 6054 would cost $21 million in 2007 and $141 million over the 2007-2011 period, assuming the appropriation of necessary funds. Enacting H.R. 6054 would not affect direct spending or revenues”
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MORE INFORMATION
SECTION-BY-SECTION ANALYSIS
The following is a section-by-section analysis of those sections of H.R. 6054 as amended by the Armed Services Committee. It is in most respects identical to this bill, HR 6166, that did not come with a committee report. HR 6166 added two provisions that were not in HR 6054: The President's authority to interpret the Geneva Conventions and the prohibition of any charges being brought against US personnel in any US courts regarding detention of detainees and how they are treated during detention.
Section 1--Short title; table of contents
This section would establish the short title of the bill as the `Military Commissions Act of 2006.'
Section 2--Construction of Presidential authority to establish military commissions
This section would clarify that establishing military commissions under Chapter 47A of title 10, United States Code (as authorized under Section 3 of this Act) does not alter or limit the authority of the President under the Constitution to establish military commissions on the battlefield or in occupied territories.
Section 3--Military commissions
This section would amend Title 10 of the United States Code by inserting after Chapter 47 a new chapter, 47A for military commissions, which includes the following sections:
The section would define the terms `Unlawful Enemy Combatant', `Lawful Enemy Combatant', `Geneva Conventions', and `Classified Information' under this chapter.
The committee notes that the most significant definition here is that of `unlawful enemy combatants,' which identifies those alien enemy combatants subject to prosecution by military commissions. This definition, which is similar to the definition employed in the context of Combatant Status Review Tribunals, is broader in that it includes not only al Qaeda members, but also those who are part of or associated with any force or organization (including an international terrorist organization) engaged in hostilities against the United States in violation of the laws of war. The committee does not believe that the United States must be engaged in armed conflict to try an alien unlawful enemy combatant engaged in hostilities against the United States. At the same time, the definition would expressly exclude those who abide by the laws of war, such as members of legitimate armed forces, as well as non-combatants under the Geneva Conventions.
This section would authorize the President to establish military commissions for violations of offenses triable by military commission as provided in this chapter. While the procedures for military commissions created in this chapter are based on the procedures for trial by courts-martial under Chapter 47, title 10, United States Code, the committee considers the commissions authorized by this chapter constitute a separate, independent commission system not contemplated in Chapter 47, title 10, United States Code. Therefore, this section would state that Chapter 47, and any construction or application of such chapter and any administrative practice under such chapter, does not apply to trial by military commission under this chapter. Finally, this section would state that the Congress considers the military commissions established in this chapter is a regularly constituted court, affording all the necessary `judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions.
This section would authorize use of military commissions created under this chapter to only those individuals who are alien unlawful enemy combatants.
This section would give jurisdiction to military commissions under this chapter to try only those offenses made punishable by this chapter when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001. The jurisdiction provided in this section, would not therefore, extend to lawful enemy combatants. Lawful enemy combatants who violate the law of war are subject to Chapter 47, title 10, United States Code, and courts martial established under chapter 47 would continue to have jurisdiction to try a lawful enemy combatant for any offense made punishable under Chapter 47. Finally, this section would allow, subject to limitations the Secretary of Defense may prescribe, the military commissions under this chapter to adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter.
This section would direct the Secretary of Defense to submit to the Senate Committee on Armed Services and the House Committee on Armed Services an annual report on any trials conducted by military commissions under this chapter. The report should provide a summary of each trial conducted by the military commission that identifies the case brought by the prosecution, the ruling by the commission, and, in the event the case is reviewed by the Court of Military Commission Review, the Court of Appeals for the District of Columbia Circuit, or the Supreme Court, the report should summarize the holdings and rationale of each appeals court.
This section would permit the Secretary of Defense, or any officer or official of the United States designated by the Secretary, to convene military commissions under this chapter.
This section would make any commissioned officer of the armed forces on active duty eligible to serve as a panel member on a military commission under this chapter. This section would further require the convening authority to detail members of the commission that are fully qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. The section would ensure that a member of a military commission is not the accuser or a witness for the prosecution or has acted as an investigator or counsel in the same case. Finally, the section would permit the convening authority to excuse a member from participating so long as he is excused before the military commission is assembled.
This section would require that a military judge shall be detailed to each military commission under this chapter. This section would further require the Secretary of Defense to prescribe regulations providing for the manner in which military judges are detailed to military commissions. The section would ensure that a military judge preside over each military commission to which he is detailed. This section would also require that a military judge shall be a commissioned officer of the armed forces who is a member of the bar of a federal court or a member of the bar of the highest court of a State, and who is certified to be qualified for duty under section 826 of title 10, United States Code as a military judge in general courts-martial by the Judge Advocate General of the armed force of which the military judge is a member. The section would also provide that any accuser, witness, counsel or investigator is ineligible to be the military judge in the same case. This section would further require that a military judge may not consult with the members of the commission outside the presence of the accused or counsel except as provided for in Section 949d regarding procedures for the admissibility of classified evidence. This section would also prohibit the military judge from voting with the members of the commission. This section would also permit a military judge assigned to a military commission to perform other duties assigned to him by the Judge Advocate General. Finally, this section would prohibit the convening authority from preparing or evaluating any fitness report which relates to the performance of duty for a military judge assigned to a military commission under this chapter.
This section would require that trial counsel and military defense counsel shall be detailed for each military commission under this chapter. The section would also provide that assistant trial counsel and assistant and associate defense counsel may be detailed. The section would further require that military defense counsel should be detailed as soon as practicable after the swearing of charges against the accused. The section requires the Secretary of Defense to prescribe regulations regarding the detail of counsel to military commissions under this chapter.
This section would require that a trial counsel must be (1) a judge advocate as defined in section 801 of title 10, United States Code, (2) a graduate of an accredited law school or a member of the bar of a federal court or of the highest court of a State, and (3) certified as competent to perform duties before general courts-martial by the Judge Advocate General of the armed force of which he is a member. The section would permit civilian counsel who is a member of the bar of a federal court or of the highest court of a state and otherwise qualified to practice before the military commission pursuant to regulations prescribed by the Secretary of Defense.
This section would also require that a military defense counsel must be a graduate of an accredited law school or a member of the bar of a federal court or of the highest court of a State, and certified as competent to perform duties before general courts-martial by the Judge Advocate General of the armed force of which he is a member.
The section would ensure that a trial counsel or military defense counsel may not have previously acted as an investigator, military judge or member of a military commission in the same case. The section would prohibit a person who has acted for the prosecution in a case from later acting for the defense in the same case. Finally, the section would prohibit a person who has acted for the defense in a case from later acting for the prosecution in the same case.
This section would require the Secretary of Defense to prescribe regulations authorizing the convening authority to detail qualified court report reporters and interpreters for military commissions. The section would require the court reporter to make a verbatim recording of the proceedings and testimony taken before military commissions under this chapter. The section would also require the Secretary of Defense to prescribe regulations authorizing the convening authority to detail or employ interpreters for the commission, trial counsel and defense counsel. The section would further require the convening authority to prepare the record of proceedings. Finally this section would require that any transcript of a military commission under this chapter will be under the control of the convening authority.
This section would require that a military commission under this chapter should have a minimum of five members and that in cases where the death penalty is sought, there should be the number of members required by section 949(m) of this chapter. The section would also provide that no member of a military commission may be absent or excused after the military commission has been assembled unless (1) as a result of a challenge, (2) excused by the military judge for physical disability or other good cause, or (3) by order of the convening authority for good cause. The section would also require that whenever a military commission is reduced below the amount required by this section, the trial may not proceed until the convening authority details a sufficient number of members. Finally, the section would provide that any trial may not proceed with any new members until the recorded evidence previously introduced has been read to the military commission in the presence of the military judge, the accused (except as provided in section 949d of this chapter) and counsel for both sides.
This section would require that a person subject to chapter 47 of this title, under an oath before a commissioned officer of the armed forces authorized to administer oaths, sign charges and specifications against the accused in a military commission under this chapter. In making the charge against the accused, the officer must state that he has personal knowledge of, or reason to believe, the matters set forth in the charge, and that they are true in fact to the best of the signer's knowledge and belief. The section would also require that, upon the swearing of the charges, the accused be informed of the charges against him as soon as practicable.
The section would prohibit the accused from being required to testify against himself at a proceeding of a military commission under this chapter. This section would also exclude from military commission proceedings statements obtained by use of torture (as defined in section 2340 of title 18, United States Code), except against a person accused of torture as evidence the statement was made. The committee notes that the `fruit of the poisonous tree' doctrine (see Wong Sun Et Al. v. United States, 371 U.S. 471 (1963)) does not apply to this section, and that evidence obtained as a result of such statements would be admissible evidence. Finally, this section would require the military judge, where a statement was allegedly obtained through coercion, to rule whether the circumstances under which the statement was obtained render the statement unreliable or lacking in probative value.
The section would require the trial counsel assigned to a case before a military commission under this chapter to ensure that the accused and military defense counsel are served a copy of the charges, and that it is provided sufficiently in advance of trial so the accused can prepare a defense. The charges should be served in English and, if appropriate, in another language that the accused understands.
This section would require the Secretary of Defense to prescribe pretrial, trial, and post-trial procedures that are not contrary to or inconsistent with this chapter, including elements and modes of proof, for cases triable by military commission under this chapter.
This section would also provide that evidence in a military commission under this chapter shall be admissible if the military judge determines that the evidence would have probative value to a reasonable person. The section would also provide that this rule is subject to such exceptions and limitations as the Secretary of Defense may prescribe by regulation. The committee notes that this standard for admission of evidence is similar to that used by international tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). 1
[Footnote]
[Footnote 1: See ICTY Rules of Procedure and Evidence, Rule 89C (General Provisions) (adopted February 11, 1994), `A Chamber may admit any relevant evidence which it deems to have probative value.' ICTR Rule 89C (May 21, 2005) is identical.]
This section would also provide that hearsay evidence is admissible unless the military judge would find that the circumstances render it unreliable or lacking in probative value. The section also would require that such evidence may be admitted only if there is notice to the adverse party in advance. The committee expects the defense to have the burden of persuasion with respect to the admission of any contested hearsay statement. Finally, the section would provide that the military judge must exclude any hearsay evidence if the probative value is substantially outweighed: (1) by the danger of unfair prejudice, confusion of the issues, or misleading the members or (2) by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
This section would also require that the Secretary of Defense notify and describe any modifications to the Senate Committee on Armed Services and the House Committee on Armed Services no later than sixty days before the date on which any proposed modification of the procedures in effect for military commissions under this chapter go into effect.
This section would prohibit the convening authority from censuring, reprimanding, or admonishing the members of a military commission, trial counsel, defense counsel or military judge assigned under this chapter with respect to the findings or sentence adjudged by the military commission, or with respect to any other exercise of any functions in the conduct of the proceedings.
This section would also prohibit any person from attempting to coerce or influence by any unauthorized means the actions of a military commission or member of a military commission in reaching the findings or sentence in any case or the action of any convening, approving or reviewing authority with respect to judicial acts.
The section would not prohibit: (1) enrollment in general instructional or information courses in military justice if such courses were designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of military commissions; or (2) general statements or instructions given in open proceedings by a military judge or counsel.
Finally, this section would prohibit consideration or evaluation of the performance of duty of any member of a military commission, or giving a less favorable rating or evaluation to any commissioned officer because of the zeal with which such officer, in acting as counsel, represented any accused before a military commission under this chapter for the following purposes: the preparation of any report or document used for the purpose of determining whether a commissioned officer of the armed forces is qualified to be advanced in grade, assigned to a new position, transferred or retained on active duty.
This section would provide that the trial counsel of a military commission under this chapter shall prosecute in the name of the United States.
This section would also provide that the accused should be represented in his defense before a military commission under this chapter as provided in this subsection. The section would provide that an accused shall be represented by military counsel detailed under section 948k of this title or by a civilian counsel who meets the requirements listed in this section.
This section would provide that the accused may be represented by civilian counsel if retained by the accused, but only if such civilian counsel: (1) is a United States citizen; (2) is admitted to the practice of law in a State, district, or possession of the United States or before a Federal court; (3) has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct; (4) has been determined to be eligible for access to classified information that is classified at the level Secret or higher; and (5) has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings.
This section would also require civilian defense counsel to protect any classified information received during the course of representation of the accused in accordance with all applicable law governing the protection of classified information and prohibits divulging such information to any person not authorized to receive it.
This section would also provide that if the accused is represented by civilian counsel, military counsel detailed shall act as associate counsel.
This section would prohibit the accused from being represented by more than one military counsel unless by the person authorized under regulations prescribed under section 948k of this title, at his sole discretion, details additional military counsel to represent the accused.
Finally, this section would permit defense counsel to cross-examine each witness for the prosecution who testifies before a military commission under this chapter.
This section would allow the military judge to call the military commission into session without the presence of the members at any time after the service of charges which have been referred for trial by military commission under this chapter, for the purpose of: (1) hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty, (2) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members, (3) if permitted by regulations prescribed by the Secretary of Defense, receiving the pleas of the accused, and (4) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section 949a of this title and which does not require the presence of the members. This section would also provide that these proceedings will be conducted in the presence of the accused, defense counsel, and trial counsel and be made part of the record except as provided in subsections (c), (d), and (e) of this section.
This section would also provide that all proceedings of the military commission in which members are present, including any consultation of the members with the military judge or counsel, shall be in the presence of the accused, defense counsel, and trial counsel and be made part of the record except as provided in subsections (c) and (e) of this section.
Subsection (c) of this section would provide that when the members of a military commission under this chapter deliberate or vote, only the members may be present.
Subsection (d) of this section would provide the military judge discretion to close to the public all or part of the proceedings of a military commission under this chapter under the following rules. The military judge may close to the public all or a portion of the proceedings of a military commission or permit the admission of classified information outside the presence of the accused, based upon a presentation (including an ex parte or in camera presentation) by either the prosecution or the defense. The trial counsel may not make a presentation requesting the admission of classified information outside the presence of the accused unless the head of the department or agency which has control over the matter (after personal consideration by that officer) certifies in writing to the military judge that: (1) the disclosure of the classified information to the accused could reasonably be expected to prejudice the national security; and (2) that such evidence has been declassified to the maximum extent possible, consistent with the requirements of national security. Finally, the military judge may close to the public all or a portion of the proceedings of a military commission upon making a specific finding that such closure is necessary to: (1) protect information the disclosure of which could reasonably be expected to cause identifiable damage to the public interest or the national security, including intelligence or law enforcement sources, methods, or activities; or (2) ensure the physical safety of individuals.
Subsection (e) of this section would provide that the military judge may not exclude the accused from any portion of the proceeding except upon a specific finding that the exclusion of the accused: (1) is necessary to protect classified information the disclosure of which to the accused could reasonably be expected to cause identifiable damage to the national security, including intelligence or law enforcement sources, methods, or activities; (2) is necessary to ensure the physical safety of individuals; or (3) is necessary to prevent disruption of the proceedings by the accused. The military judge must also make a specific finding that the exclusion of the accused is no broader than necessary, and will not deprive the accused of a full and fair trial. This finding may be based upon a presentation, including a presentation ex parte or in camera, by either trial counsel or defense counsel. Before trial counsel may make a presentation requesting the admission of classified information that has not been provided to the accused, the head of the executive or military department or governmental agency concerned shall ensure, and shall certify in writing to the military judge, that such evidence has been declassified to the maximum extent possible, consistent with the requirements of national security.
Subsection (e) of the section would also provide that no evidence may be admitted that has not been provided to the accused unless the evidence is classified information and the military judge makes a specific finding that: (1) consideration of that evidence by the military commission, without the presence of the accused, is warranted; (2) admission of an unclassified summary or redacted version of that evidence would not be an adequate substitute and, in the case of testimony, alternative methods to obscure the identity of the witness are not adequate; and (3) admission of the evidence would not deprive the accused of a full and fair trial. If the accused is excluded from a portion of the proceedings, the accused shall be provided with a redacted transcript of the proceedings from which excluded and, to the extent practicable, an unclassified summary of any evidence introduced. Under no circumstances would such a summary or redacted transcript compromise the interests warranting the exclusion of the accused under subsection (e). Military defense counsel would be present and able to participate in all trial proceedings and would be given access to all evidence admitted outside the presence of the accused. Civilian defense counsel would be permitted to be present and to participate in proceedings from which the accused is excluded under this subsection, and would be given access to classified information admitted under this subsection, if: (1) civilian defense counsel has obtained the necessary security clearances; and (2) the presence of civilian defense counsel or access of civilian defense counsel to such information, as applicable, is consistent with regulations to protect classified information that the Secretary of Defense may prescribe. Any defense counsel who receives classified information admitted under subsection (e) would not be obligated to, and may not, disclose that information to the accused. At all times the accused must have defense counsel with sufficient security clearance to participate in any proceeding, including an ex parte or in camera presentation, with respect to classified information. If evidence has been admitted under this subsection that has not been provided to the accused, the judge would instruct the members of the commission: (1) that such evidence was so admitted; and (2) that, in weighing the value of that evidence, the commission shall consider the fact that such evidence was admitted without having been provided to the accused.
Subsection (f) of this section would provide that a statement that is made by the accused during an interrogation, even if otherwise classified, may not be admitted into evidence in a military commission under this chapter unless the accused is present for the admission of the statement into evidence or the statement is otherwise provided to the accused. A statement of an accused for purposes of subsection (f) is a statement communicated knowingly and directly by the accused in response to questioning by United States or foreign military, intelligence, or criminal investigative personnel. However, the section would require that this subsection not be construed to prevent the redaction of intelligence sources or methods, which do not constitute statements of the accused, from any document provided to the accused or admitted into evidence.
The committee notes that because military commission may have to consider highly sensitive intelligence that cannot reasonably be shared with captured terrorists, it endorses these special procedures that, under narrowly defined circumstances, would permit the introduction of classified evidence outside the presence of the accused. The committee believes alien unlawful enemy combatants, who are engaged in a war with the United States, should not be allowed to exploit military commission procedures to gain information that might assist them or their associates in perpetrating future attacks against the United States and its allies. The committee believes that Military Rule of Evidence (MRE) 505, would not be practicable for military commissions. MRE 505 does not permit the judge to permit the admission of classified evidence unless it is shared with the accused. If the government cannot substitute redacted or summarized evidence for classified evidence, then the government must choose between disclosing classified evidence to the accused or not introducing the evidence at all. Giving the government that choice is entirely appropriate when it comes to the trial of U.S. soldiers or lawful enemy combatants in a courts-martial, but it is neither necessary, nor appropriate for the trials of unlawful enemy combatants for violations of the law of war that occur during an ongoing conflict. This section therefore would grant the military judge the discretion, under carefully defined and extraordinary circumstances, to admit classified evidence that is not shared with the accused.
The committee believes that excluding the accused under this subsection will be an extraordinary occurrence, to be carefully limited. There will be no `secret trials' without the accused. Instead, the section would provide that before any classified evidence may be introduced outside the presence of the accused, the head of the department or agency responsible for classifying that information must personally certify that the disclosure of the information to the accused could reasonably be expected to harm national security and that the information at issue has been declassified to the maximum extent possible. The military judge then must make specific findings to confirm that the exclusion is warranted to protect classified information; that the contemplated exclusion is no broader than necessary; and that the exclusion would not violate the right to a full and fair trial for the accused. The defense counsel for the accused will remain present and able to represent the accused in all proceedings, and the accused will be provided with unclassified summaries or a redacted transcript of the proceedings, whenever possible. In addition, this section makes clear that the accused must always be given access to any statements that he himself made during an interrogation, if the Government wishes to use such statements in the proceedings.
This section would require that the military judge may grant reasonable continuances if they appear to be just.
This section would permit the military judge and members of a military commission under this chapter to be challenged by the accused or trial counsel for cause stated to the commission. The section would also require the military judge to determine the relevance and validity of challenges for cause. The section would prohibit the military judge from receiving a challenge to more than one person at a time. The section would require challenges by trial counsel to ordinarily be presented and decided before challenges by the accused.
The section would permit one peremptory challenge by the trial counsel and one peremptory challenge by the accused. The section would authorize only a challenge against the military judge for cause.
The section would permit challenges for cause to additional members detailed to a military commission under this chapter. Finally, after any challenges for cause against such additional members are presented and decided, the section would permit the accused and trial counsel one peremptory challenge against members not previously subject to peremptory challenge.
This section would require military judges, members, trial counsel, defense counsel, reporters, and interpreters to take an oath to perform their duties faithfully before performing their duties in a military commission under this chapter. This section would authorize the Secretary of Defense to prescribe regulations regarding the form of the oath, the time and place of the taking thereof, the manner of recording the same, and whether the oath shall be taken for all cases in which duties are to be performed or for a particular case. The section would also require that the regulations for duties as a military judge, trial counsel, or defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty; and if such an oath is taken, such oath need not again be taken at the time the judge advocate or other person is detailed to that duty. Finally, the section would provide that each witness before a military commission under this chapter will be examined under oath.
This section would provide that no person may, without his consent, be tried by a military commission under this chapter a second time for the same offense. The section would also provide that no proceeding in which the accused has been found guilty by military commission under this chapter upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed.
This section would provide that a plea of not guilty shall be entered on the record and the military commission shall proceed as though the accused had pleaded not guilty if an accused in a military commission under this chapter after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead. This section would also provide that with respect to any charge or specification to which a plea of guilty has been made by the accused in a military commission under this chapter and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without a vote by the military commission. The section would further provide that the finding of guilty by the military judge pursuant to this section shall constitute the finding of the commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.
This section would provide that defense counsel in a military commission under this chapter shall have a reasonable opportunity to obtain witnesses and other evidence, including evidence in the possession of the United States, as provided in regulations prescribed by the Secretary of Defense.
This section would also provide that the process issued in a military commission under this chapter to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue; and shall run to any place where the United States shall have jurisdiction thereof.
This section would also provide the military judge in a military commission under this chapter, upon a sufficient showing, may authorize trial counsel, in making documents available to the accused through discovery conducted pursuant to such rules as the Secretary of Defense shall prescribe, to delete specified items of classified information from such documents and, when such a deletion is made: (1) to substitute an unclassified summary of the classified information in such documents; or (2) to substitute an unclassified statement admitting relevant facts that classified information in such documents would tend to prove.
This section would require the trial counsel in a military commission under this chapter to disclose as soon as practicable to the defense, the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused. The section would also require that exculpatory evidence that consists of classified information may be provided solely to defense counsel, and not the accused, after review in camera by the military judge. The section would further require that before evidence may be withheld from the accused under this subsection, the head of the executive or military department or government agency concerned shall ensure, and shall certify in writing to the military judge, that (1) the disclosure of such evidence to the accused could reasonably be expected to prejudice the national security; and (2) such evidence has been declassified to the maximum extent possible, consistent with the requirements of national security. This section would further require that any classified exculpatory evidence that is not disclosed to the accused under this subsection: (1) shall be provided to military defense counsel; (2) shall be provided to civilian defense counsel, if civilian defense counsel has obtained the necessary security clearances and access to such evidence is consistent with regulations that the Secretary may prescribe to protect classified information; and (3) shall be provided to the accused in a redacted or summary form, if it is possible to do so without compromising intelligence sources, methods, or activities or other national security interests. Finally, this section would provide that a defense counsel who receives evidence under this subsection is not obligated to, and will not, disclose that evidence to the accused. The committee notes that this section makes clear that defense counsel is prohibited from sharing classified evidence with the accused and that this prohibition overrides any duty of communication that may be imposed by other federal or state law.
This section would provide an affirmative defense in a trial by military commission under this chapter that, if at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. The section would also clarify that a mental disease or defect does not otherwise constitute a defense. The section would provide that the accused in a military commission under this chapter has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence. The section would require the military judge to instruct the members of the commission as to the defense of lack of mental responsibility under this section whenever the lack of mental responsibility of the accused with respect to an offense is properly at issue in a military commission under this chapter. The section would require the military judge to instruct the members that their options when the accused has properly raised the defense of lack of mental responsibility are to find the accused: (1) guilty; (2) not guilty; or (3) not guilty by reason of lack of mental responsibility. Finally, the section would require that the accused may be found not guilty by reason of lack of mental responsibility only if a majority of the members present at the time the vote is taken determine that the defense of lack of mental responsibility has been established.
This section would require that all votes by members of a military commission under this chapter on the findings and on the sentence will be by secret written ballot. This section would also require that the military judge in a military commission under this chapter will rule upon all questions of law, including the admissibility of evidence and all interlocutory questions arising during the proceedings. The section would also provide that any ruling made by the military judge upon a question of law or an interlocutory question (other than the factual issue of mental responsibility of the accused) is conclusive and constitutes the ruling of the military commission. The section would also make it clear that a military judge may change his ruling at any time during the trial.
This section would also require that before a vote is taken of the findings of a military commission under this chapter, the military judge will, in the presence of the accused and counsel, instruct the members as to the elements of the offense and charge them: (1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt; (2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted; (3) that, if there is reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and (4) that the burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the United States.
This section would provide that two-thirds of the members present must vote for conviction to find the accused guilty of any offense. The section would also provide that a two-thirds vote of the members present is required for any sentence other than confinement for more than ten years, life imprisonment, or death. The section would require three-fourths of the members present to vote for a sentence of confinement for more than ten years or life imprisonment. The section would provide that no person may be sentenced to death unless: (1) the penalty of death is expressly authorized under this chapter for an offense and the accused is found guilty of that offense, (2) the trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial, (3) the accused is convicted of the offense by the concurrence of all the members, and (4) all the members concur in the sentence of death.
The section would further provide that in a case in which the penalty of death is sought, the number of members of the military commission under this chapter shall be not less than 12. Finally, the section would provide that in any case in which the death penalty is sought and in which twelve members are not reasonably available because of physical conditions or military exigencies, the convening authority shall specify a lesser number of members for the military commission but with a minimum of nine members. The section would also provide that in a death penalty case in which twelve members are not available, the convening authority will make a detailed written statement stating why a greater number of members were not reasonably available and append the written statement to the record.
This section would require a military commission under this chapter to announce its findings and sentence to the parties as soon as determined.
This section would require each military commission established under this chapter to keep a separate, verbatim record of the proceeding in each case. This section would also require that a complete record of the proceedings and testimony be prepared for each military commission. Finally, this section would require that a copy of the record of the proceedings of the military commission be given to the accused as soon as it is authenticated. The section would require that the accused be given a redacted version of the record, if the record contains classified information or a classified annex. The section would also require that the Secretary of Defense prescribe regulations to provide a defense counsel who is eligible for access to classified information pursuant to this chapter to have access to the unredacted record.
This section would prohibit the imposition of any cruel or unusual punishment under Chapter 47A. Prohibited punishments would include flogging, branding, marking, and tattooing on the body. This section would also prohibit the use of irons, single or double, except for the purpose of safe custody.
This section would require that any punishment directed for an offense by a military commission under this chapter may not exceed any limits prescribed by the President or Secretary of Defense for that offense.
This section would authorize the Secretary of Defense to prescribe regulations for any sentence of confinement adjudged by a military commission under this chapter. This section would authorize confinement in any place of confinement under the control of any of the armed forces or in any penal or correctional institution under the control of the United States or its allies, or which the United States is allowed to use. This section would also require that any person confined under this chapter in a penal or correctional facility not under the control of the armed forces would be subject to the same discipline and treatment as persons confined or committed by the courts of the United States, or of the state, District of Columbia, or place in which the institution is situated.
This section would provide that military commission decisions shall not be overturned based upon errors of law unless the error materially prejudices the rights of the accused. A reviewing authority that sets aside a guilty finding shall have the authority to impose a lesser included offense, where applicable.
This section would require that the findings and sentence of a military commission under this chapter be reported in writing promptly to the convening authority after the announcement of the sentence. This section also provides that the accused may submit to the convening authority matters for consideration with respect to the findings and the sentence of the military commission under this chapter. This submission should be made in writing within 20 days after the accused has been given an authenticated record of trial (as referenced by section 949o(c) of this chapter); however, if the accused shows that additional time is required beyond the 20 days, the convening authority may, for good cause, extend the applicable period for not more than an additional 20 days. Alternatively, the accused may waive his right to make a submittal to the convening authority. Such a waiver must be made in writing and may not be revoked, and effectively terminates the accused's opportunity to request a 20 day extension.
This section would permit the convening authority, in his sole discretion, to approve, disapprove, commute or suspend the sentence in whole or in part. The convening authority may not, however, increase a sentence beyond that which is found by the military commission, and is not required to take actions on the findings of a military commission under this chapter. Subject to regulations prescribed by the Secretary of Defense, action on the sentence may be taken only after consideration of any matters submitted by the accused or after the time for submitting such matters expires, whichever is earlier. If the convening authority takes action on the findings, the convening authority may, in his sole discretion, dismiss any charge or specification by setting aside a finding of guilty thereto; or change a finding of guilty to a charge to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge. Finally, the convening authority shall serve on the accused or on defense counsel notice of any action taken by the convening authority.
This section would also permit the convening authority, in his sole discretion, to order a proceeding in revision or a rehearing. A proceeding in revision may be ordered by the convening authority if there is an apparent error or omission in the record or the record shows improper or inconsistent action by the military commission with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. In no case may a proceeding in revision reconsider a finding of not guilty of a specification or a ruling which amounts to a finding of not guilty; reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation; or increase the severity of the sentence unless the sentence prescribed for the offense is mandatory. A rehearing may be ordered by the convening authority if the convening authority disapproves the findings and sentence, and states the reasons for disapproval of the findings. A rehearing as to the findings may not be ordered by the convening authority, however, when there is a lack of sufficient evidence in the record to support the findings. Similarly, if the convening authority disapproves the sentence, he may order a rehearing as to the sentence or he may dismiss the charges.
This section would provide an automatic review by the Court of Military Commission Review in each case in which the final decision of a military commission (as approved by the convening authority) includes a finding of guilty. The convening authority shall refer the case to the Court of Military Commission Review, in accordance with procedures prescribed under regulations of the Secretary of Defense. This section would also provide, except in a case in which the sentence as approved extends to death, the accused may file with the convening authority a statement expressly waiving the right of the accused to such review, which will bar the Court of Military Commission Review from reviewing the case. Such a waiver shall be signed by both the accused and a defense counsel, and must be filed, if at all, within 10 days after notice on the action is served on the accused or on defense counsel. The convening authority, for good cause, may extend the period for such filing by not more than 30 days. Except in a case in which the sentence as approved under section 950b of this title extends to death, the accused may withdraw an appeal at any time.
This section would grant the United States the right to take an interlocutory appeal based upon the military judge's decision to terminate commission proceedings on any charge or specification; to exclude evidence that is substantial proof of a military fact; and matters dealing with excluding the accused from certain proceedings, continuances or challenges. To make such an appeal the United States shall file a notice of appeal with the military judge within five days after the date of such order or ruling. In ruling on an appeal under this section, the Court of Military Commission Review may act only with respect to matters of law. The United States may not appeal an order or ruling that is, or amounts to, a finding of not guilty by the military commission with respect to a charge or specification. Finally this section would also permit the United States to appeal an adverse ruling from the Court of Military Commission Review to the United States Court of Appeals for the District of Columbia Circuit by filing a petition for review in the Court of Appeals within ten days after the date of such ruling. Review under this subsection shall be at the discretion of the Court of Appeals.
This section would provide for procedures for rehearing, should the accused be successful on appeal. The commission shall be composed of new members, and the commission may not find guilt or impose a greater sentence as to any offense previously adjudged on the merits by the prior commission. In the event the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceeding or the sentence prescribed for the offense is mandatory, the rehearing may impose a sentence in excess or more than the original sentence.
This section would create a Court of Military Commission Review within the Department of Defense. The Secretary of Defense shall establish a Court of Military Commission Review which shall be composed of one or more panels, with each panel consisting of not less than three appellate military judges. In accordance with rules prescribed by the Secretary, the court may sit in panels or as a whole for the purpose of reviewing military commission decisions. This section would also require the Secretary of Defense to assign appellate military judges to a Court of Military Commission Review. Appellate military judges shall meet the qualifications for military judges prescribed for a military judge of a military commission or shall be a civilian with comparable qualifications. No person may be appointed to serve as an appellate military judge in any case in which that person acted as a military judge, counsel, or reviewing official. Finally, this section would require the Court of Military Commission Review, in accordance with procedures and regulations prescribed by the Secretary, to review the record in each case that is referred to the Court by the convening authority with respect to any matter of law raised by the accused. The Court of Military Commission Review may act only with respect to matters of law.
This section would grant the accused the right to appeal his conviction to the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) which shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority). The D.C. Circuit may not review the final judgment until all other appeals under this chapter have been waived or exhausted, and a petition for review was filed by the accused in the D.C. Circuit not later than 20 days after the date on which written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel or the accused submits a written notice waiving the right of the accused to review by the Court of Military Commission Review. The D.C. Circuit may act only with respect to matters of law, and the jurisdiction of the D.C. Circuit should be limited to the consideration of whether the final decision was consistent with the standards and procedures for military commissions and to the extent applicable, the Constitution.
The committee notes that Congress has already determined in section 1005 of the Detainee Treatment Act (DTA) of 2005 (Public Law 109-148) that review of military commission judgments should lie in the D.C. Circuit. The committee also notes that the D.C. Circuit has acquired experience in recent years handling cases brought by individuals detained at Guantanamo Bay, Cuba such as the Hamdan, and believes that the most important appellate questions to come will involve military commission procedures, such as those concerning the limited exclusion of the accused, that may have no clear analogue with the procedures set out in Chapter 47 of Title 10, United States Code. Therefore, this chapter would preserve existing review procedures under the DTA, but would expand the right of the accused to appeal regardless of the length of his sentence.
Finally, this section would permit the Supreme Court to review by writ of certiorari the final judgment of the D.C. Circuit.
This section would provide for the appointment of appellate counsel to represent the accused and the United States in any appeal or review under this chapter. Appellate counsel appointed representing the United States shall represent the United States in any appeal or review proceeding before the Court of Military Commission Review, and may, when requested to do so by the Attorney General in a case arising under this chapter, represent the United States before the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) or the Supreme Court.
Appellate Counsel for the accused shall be represented before the Court of Military Commission Review, the D.C. Circuit, and the Supreme Court, and by civilian counsel if retained by the accused. Any such civilian counsel shall be subject to the same requirements and qualifications for civilian counsel appearing before military commissions. Finally, the accused must at all times have appellate counsel with sufficient security clearance to participate in any proceeding with respect to classified information.
This section would provide that a death sentence may not be executed until the judgment is final and approved by the President. A judgment is final in the case of a death sentence when the time for the accused to file a petition for review by the Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has expired and the accused has not filed a timely petition for such review, and the case is not otherwise under review by that Court, or review is completed in accordance with the judgment of the D.C. Circuit and a petition for a writ of certiorari is not timely filed, such a petition is denied by the Supreme Court or review is otherwise completed in accordance with the judgment of the Supreme Court. Finally, this section would permit the Secretary of the Defense, or the convening authority acting on the case (if other than the Secretary), to suspend the execution of any sentence or part thereof in the case, except a sentence of death.
This section would provide that the appellate review of records of trial provided by this chapter, and the proceedings, findings, and sentences of military commissions as approved, reviewed, or affirmed as required by this chapter, are final and conclusive. Orders publishing the proceedings of military commissions are binding upon all departments, courts, agencies, and officers of the United States, except as otherwise provided by the President. Finally this section would state that no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.
This section would codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission. Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, the committee firmly believes that trial for crimes that occurred before the date of the enactment of this chapter might be prosecuted with this subchapter.
The committee notes that although the offenses subject to trial by military commissions have generally been identified based upon the common law of armed conflict, this Act codifies a list of offenses triable by military commissions. The list of offenses tracks those provided for under Department of Defense Military Commission Instruction No. 2, April 30, 2003, which is based upon international treaties and U.S. criminal law. The offenses defined here are not new crimes, but rather reflect the codification of the law of war into the United States Code pursuant to Congress's constitutional authority to `Define and Punish * * * Offences against the Law of Nations.' U.S. Constitution article I, section 8. Because the provisions are declarative of existing law, the committee believes that trial for crimes that occurred prior to the Act's effective date is not precluded.
This section would provide that an individual may be guilty as a principal if he commits an offense, is an accessory to an offense, or directs the commission of an offense. In addition, under the principle of `command responsibility,' a commander may be guilty of a war crime where he knew, or should have known, that his subordinate was about to commit, or had committed, an offense, yet failed to take the necessary and reasonable measures to prevent or punish the offense.
BILL TEXT REGARDING SECTION 950Q
`Any person is punishable as a principal under this chapter who--
`(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission;
`(2) causes an act to be done which if directly performed by him would be punishable by this chapter; or
`(3) is a superior commander who, with regard to acts punishable under this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
This section provides for punishment as an accessory after the fact.
BILL TEXT REGARDING SECTION 950R
`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.
This section would provide that an individual may be convicted of a lesser included offense, where appropriate.
BILL TEXT REGARDING SECTION 950S
`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.
This section would provide for the circumstances under which an individual may be convicted of an attempt to commit an offense under this chapter.
BILL TEXT REGARDING SECTION 950T
`(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.
This section would provide that an individual may be convicted for the crime of solicitation if he solicits or advises another to commit one or more substantive offenses triable by military commission.
BILL TEXT REGARDING SECTION 950U
`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.
This section would enumerate 27 substantive offenses triable by military commission.
The committee notes that in light of the common law origins of the war crimes, no list of offenses is likely to be entirely complete. Nonetheless, the committee believes the list codifies offenses hitherto recognized as offenses triable by military commissions or international courts. Most of the listed offenses constitute clear violations of the Geneva Conventions, the Hague Convention, or both. Several constitute `modern-day war crimes,' such as hijacking and terrorism, which constitute practices contrary to the law of nations that can, and hereby do, have the same status as traditional war crimes. In Hamdan, the Supreme Court left open the question as to whether conspiracy to commit a war crime itself constituted a substantive offense. For the reasons stated in Justice Thomas's opinion, the Committee views conspiracy as a separate offense punishable by military commissions.
BILL TEXT REGARDING SECTION 950V
`(a) Definitions and Construction- In this section:
`(1) MILITARY OBJECTIVE- The term `military objective' refers to--
`(A) combatants; and
`(B) those objects during an armed conflict--
`(i) which, by their nature, location, purpose, or use, effectively contribute to the opposing force's war-fighting or war-sustaining capability; and
`(ii) the total or partial destruction, capture, or neutralization of which would constitute a definite military advantage to the attacker under the circumstances at the time of the attack.
`(2) PROTECTED PERSON- The term `protected person' refers to any person entitled to protection under one or more of the Geneva Conventions, including--
`(A) civilians not taking an active part in hostilities;
`(B) military personnel placed hors de combat by sickness, wounds, or detention; and
`(C) military medical or religious personnel.
`(3) PROTECTED PROPERTY- The term `protected property' refers to property specifically protected by the law of war (such as buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, or places where the sick and wounded are collected), if such property is not being used for military purposes or is not otherwise a military objective. Such term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions.
`(4) CONSTRUCTION- The intent specified for an offense under paragraph (1), (2), (3), (4), or (12) of subsection (b) precludes the applicability of such offense with regard to--
`(A) collateral damage; or
`(B) death, damage, or injury incident to a lawful attack.
`(b) Offenses- The following offenses shall be triable by military commission under this chapter at any time without limitation:
`(1) MURDER OF PROTECTED PERSONS- An alien unlawful enemy combatant who intentionally kills one or more protected persons is guilty of the offense of intentionally killing a protected person and shall be subject to whatever punishment a commission may direct, including the penalty of death.
`(2) ATTACKING CIVILIANS- An alien unlawful enemy combatant who intentionally engages in an attack upon a civilian population as such or individual civilians not taking active part in hostilities is guilty of the offense of attacking civilians and shall be subject to whatever punishment a commission may direct, including, if death results to one or more of the victims, the penalty of death.
`(3) ATTACKING CIVILIAN OBJECTS- An alien unlawful enemy combatant who intentionally engages in an attack upon property that is not a military objective shall be guilty of the offense of attacking civilian objects and shall be subject to whatever punishment a commission may direct.
`(4) ATTACKING PROTECTED PROPERTY- An alien unlawful enemy combatant who intentionally engages in an attack upon protected property shall be guilty of the offense of attacking protected property and shall be subject to whatever punishment a commission may direct.
`(5) PILLAGING- An alien unlawful enemy combatant who intentionally and in the absence of military necessity appropriates or seizes property for private or personal use, without the consent of a person with authority to permit such appropriation or seizure, shall be guilty of the offense of pillaging and shall be subject to whatever punishment a commission may direct.
`(6) DENYING QUARTER- An alien unlawful enemy combatant who, with effective command or control over subordinate groups, declares, orders, or otherwise indicates to those forces that there shall be no survivors or surrender accepted, with the intent therefore to threaten an adversary or to conduct hostilities such that there would be no survivors or surrender accepted, shall be guilty of denying quarter and shall be subject to whatever punishment a commission may direct.
`(7) TAKING HOSTAGES- An alien unlawful enemy combatant who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be guilty of the offense of taking hostages and shall be subject to whatever punishment a commission may direct, including, if death results to one or more of the victims, the penalty of death.
`(8) EMPLOYING POISON OR ANALOGOUS WEAPONS- An alien unlawful enemy combatant who intentionally, as a method of warfare, employs a substance or a weapon that releases a substance that causes death or serious and lasting damage to health in the ordinary course of events, through its asphyxiating, bacteriological, or toxic properties, shall be guilty of employing poison or analogous weapons and shall be subject to whatever punishment a commission may direct, including, if death results to one or more of the victims, the penalty of death.
`(9) USING PROTECTED PERSONS AS SHIELDS- An alien unlawful enemy combatant who positions, or otherwise takes advantage of, a protected person with the intent to shield a military objective from attack or to shield, favor, or impede military operations, shall be guilty of the offense of using protected persons as shields and shall be subject to whatever punishment a commission may direct, including, if death results to one or more of the victims, the penalty of death.
`(10) USING PROTECTED PROPERTY AS SHIELDS- An alien unlawful enemy combatant who positions, or otherwise takes advantage of the location of, protected property under the law of war with the intent to shield a military objective from attack or to shield, favor, or impede military operations, shall be guilty of the offense of using protected property as shields and shall be subject to whatever punishment a commission may direct.
`(11) TORTURE- An alien unlawful enemy combatant who commits an act specifically intended to inflict severe physical pain or suffering or severe mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be guilty of torture and subject to whatever punishment a commission may direct, including, if death results to one or more of the victims, the penalty of death. In this paragraph, the term `severe mental pain or suffering' has the meaning given that term in section 2340(2) of title 18.
`(12) CRUEL OR INHUMAN TREATMENT- An alien unlawful enemy combatant who commits an act intended to inflict severe physical pain or suffering or severe mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including severe physical abuse, upon another person within his custody or physical control shall be guilty of cruel or inhuman treatment and subject to whatever punishment a commission may direct, including, if death results to one or more of the victims, the penalty of death. In this paragraph, the term `severe mental pain or suffering' has the meaning given that term in section 2340(2) of title 18.
`(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY- An alien unlawful enemy combatant who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be guilty of the offense of causing serious bodily injury and shall be subject to whatever punishment a commission may direct, including, if death results to one or more of the victims, the penalty of death. In this paragraph, the term `serious bodily injury' has the meaning given that term in section 113(b)(2) of title 18.
`(14) MUTILATING OR MAIMING- An alien unlawful enemy combatant who intentionally injures one or more protected persons, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose, shall be guilty of the offense of mutilation or maiming and shall be subject to whatever punishment a commission may direct, including, if death results to one or more of the victims, the penalty of death.
`(15) MURDER IN VIOLATION OF THE LAW OF WAR- An alien unlawful enemy combatant who intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be guilty of the offense of murder in violation of the law of war and shall be subject to whatever punishment a commission may direct, including the penalty of death.
`(16) DESTRUCTION OF PROPERTY IN VIOLATION OF THE LAW OF WAR- An alien unlawful enemy combatant who intentionally destroys property belonging to another person in violation of the law of war shall be guilty of the offense of destruction of property in violation of the law of war and shall be subject to whatever punishment a commission may direct.
`(17) USING TREACHERY OR PERFIDY- An alien unlawful enemy combatant who, after inviting the confidence or belief of one or more persons that they were entitled to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons, shall be guilty of using treachery or perfidy and shall be subject to whatever punishment a commission may direct.
`(18) IMPROPERLY USING A FLAG OF TRUCE- An alien unlawful enemy combatant who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise to suspend hostilities when there is no such intention, shall be guilty of improperly using a flag of truce and shall be subject to whatever punishment a commission may direct.
`(19) IMPROPERLY USING A DISTINCTIVE EMBLEM- An alien unlawful enemy combatant who intentionally uses a distinctive emblem recognized by the law of war for combatant purposes in a manner prohibited by the law of war shall be guilty of improperly using a distinctive emblem and shall be subject to whatever punishment a commission may direct.
`(20) INTENTIONALLY MISTREATING A DEAD BODY- An alien unlawful enemy combatant who intentionally mistreats the body of a dead person, without justification by legitimate military necessary, shall be guilty of the offense of mistreating a dead body and shall be subject to whatever punishment a commission may direct.
`(21) RAPE- An alien unlawful enemy combatant who forcibly or with coercion or threat of force wrongfully invades the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused or with any foreign object shall be guilty of the offense of rape and shall be subject to whatever punishment a commission may direct.
`(22) HIJACKING OR HAZARDING A VESSEL OR AIRCRAFT- An alien unlawful enemy combatant subject to this title who intentionally seizes, exercises unauthorized control over, or endangers the safe navigation of, a vessel or aircraft that was not a legitimate military target is guilty of the offense of hijacking or hazarding a vessel or aircraft and shall be subject to whatever punishment a commission may direct, including, if death results to one or more of the victims, the penalty of death.
`(23) TERRORISM- An alien unlawful enemy combatant subject to this title who intentionally kills or inflicts great bodily harm on one or more persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct, shall be guilty of the offense of terrorism and shall be subject to whatever punishment a commission may direct, including, if death results to one or more of the victims, the penalty of death.
`(24) PROVIDING MATERIAL SUPPORT FOR TERRORISM- An alien unlawful enemy combatant who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as defined in paragraph (23)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as defined in paragraph (23)), shall be guilty of the offense of providing material support for terrorism and shall be subject to whatever punishment a commission may direct. In this paragraph, the term `material support or resources' has the meaning given that term in section 2339A(b) of title 18.
`(25) WRONGFULLY AIDING THE ENEMY- An alien unlawful enemy combatant who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States or one its co-belligerents shall be guilty of the offense of wrongfully aiding the enemy and shall be subject to whatever punishment a commission may direct.
`(26) SPYING- An alien unlawful enemy combatant who, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect certain information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States or one of its co-belligerents, shall be guilty of the offense of spying and shall be subject to whatever punishment a commission may direct, including the penalty of death.
`(27) CONSPIRACY- An alien unlawful enemy combatant who conspires to commit one or more substantive offenses triable under this section, and who knowingly does any overt act to effect the object of the conspiracy, shall be guilty of conspiracy and shall be subject to whatever punishment a commission may direct, including, if death results to one or more of the victims, the penalty of death.
This section would provide, as incident to the power to protect the integrity of their proceedings, the military commission shall have the authority to try perjury and obstruction of justice related to military commissions and offenses triable by commission.
This section would provide for the military commission's authority to punish contempt of its proceedings.
BILL TEXT REGARDING SECTION 950X
`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 chapters at the beginning of subtitle A, and at the beginning of 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:
--948a'.
(b) Conforming Amendment to UCMJ- Section 836(a) of title 10, United States Code (article 36(a) of the Uniform Code of Military Justice)), is amended by inserting `, except as provided in chapter 47A of this title,' after `but which may not'.
(c) 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)).
Section 4--Clarification of conduct constituting war crime offense under federal criminal code
This section would amend subsection 2441(c) of title 18, United States Code, (War Crimes Act of 1996, Public Law 105-118) defining a war crime Code conduct which constitutes a serious violation of Common Article 3 of the Geneva Convention. In particular, torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, intentionally causing great suffering or serious injury, rape, sexual assault or abuse, and taking hostages are codified and defined in this section as conduct which constitutes a war crime. The section would also make the amendment apply retroactively to the date of enactment of the War Crimes Act, November 26, 1997. The committee notes that because no person has been prosecuted under the War Crimes Act, this amendment can apply as if enacted on November 26, 1997.
The committee also notes that United States' treaty obligations require that the United States criminalize the grave breaches of the Geneva Conventions, which include certain serious violations of Common Article 3. The War Crimes Act goes further and makes any violation of Common Article 3 a war crime. These statutes, however, give no more specific guidance as to what conduct constitutes a violation. The Supreme Court held in Hamdan that Common Article 3 applies to the conflict against al Qaeda; therefore, the committee believes it is imperative that the statute provide clear notice to United States personnel charged with interrogating detainees. The committee's intent, therefore, is that this section provide clarity and certainty with respect to the serious violations of Common Article 3 that are punishable as war crimes under section 1441(c), title 18, United States Code. The Act does not specifically provide for a general crime of `outrages upon personal dignity', as provided in Common Article 3, because the committee believes it is nearly impossible to define an `outrage' as a general matter without resorting to the very kind of vague language that this provision seeks to replace. Instead, this section would identify and criminalize three serious and clear outrages upon personal dignity: biological experimentation, rape, and sexual assault. The statute similarly does not criminalize the passing of a sentence absent a regularly constituted court because of the difficulty in defining what constitutes a `regularly constituted court;' an execution carried out pursuant to the sentence of an irregular tribunal would clearly be proscribed under this section as murder.
BILL TEXT regarding Section 4
1) SERIOUS VIOLATIONS- In subsection (c)(3), the term `serious violation of common Article 3 of the 1949 Geneva Conventions' means any of the following:
`(A) TORTURE- The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical pain or suffering or severe mental pain or suffering (as such term is defined in section 2340(2) of this title), other than pain or suffering incidental to lawful sanctions, upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
`(B) CRUEL OR INHUMAN TREATMENT- The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe physical pain or suffering or severe mental pain or suffering (as such term is defined in section 2340(2) of this title), other than pain or suffering incidental to lawful sanctions, and including severe physical abuse, upon another person within his custody or physical control.
`(C) PERFORMING BIOLOGICAL EXPERIMENTS- The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments and in so doing endangers the body or health of such person or persons.
`(D) MURDER- The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause.
`(E) MUTILATION OR MAIMING- The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.
`(F) INTENTIONALLY CAUSING GREAT SUFFERING OR SERIOUS INJURY- The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury (as such term is defined in section 113(b)(2) of this title) to one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause.
`(G) RAPE- The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused or with any foreign object.
`(H) SEXUAL ASSAULT OR ABUSE- The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact (as such term is defined in section 2246(3) of this title) with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact (as so defined).
`(I) TAKING HOSTAGES- The act of a person who--
`(i) having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons; or
`(ii) attempts to engage or conspires to engage in conduct under clause (i).
`(2) INAPPLICABILITY OF SPECIFIED PROVISIONS WITH RESPECT TO CERTAIN CONDUCT- The intent specified for the conduct stated in subparagraphs (D), (E), and (F) of paragraph (1) precludes the applicability of those subparagraphs with regard to--
`(A) collateral damage; or
`(B) death, damage, or injury incident to a lawful attack.'.
(b) Retroactive Applicability- The amendments made by this section 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 of Public Law 107-273).
Section 5--Judicial Review
This section would amend section 2241 of title 28, United States Code, to prohibit any court, justice, or judge except the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) the jurisdiction to hear or consider any claim or cause of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of H.R. 6054, against the United States or its agents, brought by or on behalf of any alien detained by the United States as an unlawful enemy combatant, relating to any aspect of the alien's detention, transfer, treatment, or conditions of confinement. This section would provide that the D.C. Circuit will review two causes of action for these aliens: (1) exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal (CSRT); and (2) final judgments of military commissions as provided for pursuant to section 950g of title 10, United States Code (as added by section 950g of Section 3 of this Act). Finally, the section would provide that the D.C. Circuit may consider classified information submitted in camera and ex parte in making any determination under this section.
The committee notes that this section would clarify an ambiguity noted by the Supreme Court in Hamdan v. Rumsfeld, 548 U.S. atXXX, by amending the judicial review provisions of the Detainee Treatment Act (DTA) of 2005 (Public Law 109-148) codified in section 2241, title 28 of the United States Code. The DTA provided that the D.C. Circuit would have jurisdiction over determination of CSRTs for enemy combatants detained at the U.S. Naval Base, Guantanamo Bay, Cuba and final judgments of military commissions, and that all other courts would be foreclosed from hearing habeas corpus petitions or any other civil actions brought by enemy combatants in U.S. custody. The committee notes its intention to make clear through this section that except for the specific review provided by the DTA, that is review of final judgments by CSRTs and final judgments of military commissions, this section forecloses any legal claim, including applications for the writ of habeas corpus, brought on by or on behalf of these detainees. The committee notes its intention that judicial review of detention and military commission is channeled through the adequate alternative procedures provided by this Act and the DTA.
The committee further notes that the scope of CSRT review is defined in section 1005(e)(2) of the DTA. Section 1005(e)(2) provided that the D.C. Circuit would have exclusive jurisdiction to determine the validity of any final decision by a CSRT that an alien is properly detained at the U.S. Naval Base Guantanamo Bay, Cuba, as an enemy combatant. The CSRT process was established by Deputy Secretary of Defense Order dated July 7, 2004. The purpose of the process is to determine if the individuals detained by the Department of Defense at the U.S. Naval Base Guantanamo Bay, Cuba are properly classified as enemy combatants and to permit each detainee the opportunity to contest such designation. An `enemy combatant' for the purpose of a CSRT review is `an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.' The D.C. Circuit's jurisdiction is limited to claims brought by or on behalf of an alien: (1) who at the time of the request for a review by the D.C. Circuit is filed is detained by the Department of Defense at Guantanamo Bay, Cuba; and (2) for whom a CSRT has been conducted, pursuant to procedures specified by the Secretary of Defense. The scope of the D.C. Circuit's review has been amended by section 950g(c) of this Act.
Section 6--Satisfaction of Treaty Obligations
This section would establish that compliance with section 1003 of the Detainee Treatment Act of 2005 (Public Law 109-148) fully satisfies the obligations of the United States with regard to section 1 of Common Article 3 of the Geneva Conventions, and would prohibit any court from treating the Geneva Conventions as a source of rights, directly or indirectly, making clear that the Geneva Conventions are not judicially enforceable in any court of the United States.
The committee believes the treaty obligations of the United States under the Geneva Conventions should be codified in United States law. Therefore, this section would establish that compliance with section 1003 of the Detainee Treatment Act of 2005 (DTA) fully satisfies the obligations of the United States with regard to section 1 of Common Article 3 of the Geneva Conventions. Like the DTA, Common Article 3 provides a baseline standard for detainees in armed conflicts where it applies. Unlike the DTA, however, several provisions of Common Article 3 are vague, particularly its prohibition upon `outrages upon personal dignity, in particular humiliating and degrading treatment.' This section would define Common Article 3's treatment standards by reference to the DTA, which is based upon the familiar standards of the U.S. Constitution. Moreover, `cruel, inhuman, and degrading treatment or punishment' under this section means the cruel, unusual, inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT) done at New York, December 10, 1984. The committee believes that the Constitution, which provides the fundamental, underlying protections for the citizens of the United States, provides more than sufficient protections to satisfy the United States' treaty obligation under the Geneva Common Article 3. The committee does not believe that detainees--especially unlawful enemy combatants--should enjoy protections that exceed what the Constitution provides to United States citizens. Finally, the parts of Common Article 3 that concern the taking of hostages and the passing of sentences by regularly constituted courts do not concern detainee treatment and therefore are specifically excepted from this provision.
The committee also believes that while this section prohibits any court from treating the Geneva Conventions as a source of rights, this section does not affect the obligations of the United States under the Geneva Conventions; to the contrary, the committee believes that the political branches of the United States remain fully bound by, and will continue to honor, the Conventions whenever and wherever they apply.
Section 7--Revisions to Detainee Treatment Act of 2005 relating to protection of certain United States Government personnel
This section would amend section 1004(b) of the Detainee Treatment Act (DTA) of 2005 (Public Law 109-148) to enhance the protection of U.S. government personnel engaged in authorized interrogations. The committee notes that section 1004(b) of the DTA provides counsel in any civil action or criminal prosecution against a member of the armed forces or other agent of the United States government arising involving certain interrogation procedures of aliens determined by the government to be international terrorists. This section would provide that the provision of counsel under section 1004(b) is mandatory, that the right to counsel includes investigations, and that the right applies to foreign and international courts or agencies. This section would further provide that the affirmative defense provided in section 1004(a) of the DTA and the right to counsel provided in section 1004(b) of the DTA applies to any criminal prosecution that: (1) related to the detention and interrogation of aliens described in such section, (2) is grounded in section 2441(c)(3) of title 18, United States Code (as amended by section 4 of this Act), and (3) relates to actions occurring between September 11, 2001, and December 30, 2005.
Section 8--Retroactive applicability
This section would clarify that the Act retroactively applies `to any aspect of detention, treatment or trial of any alien detained at any time since September 11, 2001.' This section further states that the Act applies to any case, pending or not, whether filed before or after the effective date of the Act.
The committee notes that this provision is designed to make clear that jurisdiction inconsistent with this Act is removed for all pending cases and that the standards prescribed in this Act shall apply to all future cases, no matter when the conduct at issue occurred.
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