_{₂_D_S_ESSION} __________

To facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes.

IN THE OF THE UNITED STATES

introduced the following bill; which was read twice and referred to the Committee on

A BILL

To facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes.

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

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the “Military Commissions Act of 2006”.

4 SEC. 2. FINDINGS.

5 Congress makes the following findings: 6 (1) For more than 10 years, the al Qaeda ter7 rorist organization has waged an unlawful war of 8 violence and terror against the United States and 9 its allies. Al Qaeda was involved in the bombing of the World Trade Center in New York City in 1993, the bombing of the United States Embassies in Kenya and Tanzania in 1998, and the attack on the U.S.S. Cole in Yemen in 2000. On September 11, 2001, al Qaeda launched the most deadly foreign attack on United States soil in history. Nineteen al Qaeda operatives hijacked four commercial aircraft and piloted them into the World Trade Center Towers in New York City and the headquarters of the United States Department of Defense at the Pentagon, and downed United Airlines Flight 93. The attack destroyed the Towers, severely damaged the Pentagon, and resulted in the deaths of approximately 3,000 innocent people.

(2): Following the attacks on the United States on September 11th, Congress recognized the existing hostilities with al Qaeda and affiliated terrorist organizations and, by the Authorization for the Use of Military Force Joint Resolution (Public Law 107-40), recognized that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States” and authorized the President “to use all necessary and appropriate force against those nations, organizations, or per

sons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

(3)

The President’s authority to convene military commissions arises from the Constitu-tion’s vesting in the President of the executive power and the power of Commander in Chief of the Armed Forces. As the Supreme Court of the United States recognized in Madsen v. Kinsella, 343 U.S. 341, 346-48 (1952), “[s]ince our nation’s earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war. . . . They have taken many forms and borne many names. Neither their procedure nor their jurisdiction has been prescribed by statute. It has been adapted in each instance to the need that called it forth.”

(4): In exercising the authority vested in the President by the Constitution and laws of the United States, including the Authorization for Use of Military Force Joint Resolution, and in accor

dance with the law of war, the President has detained enemy combatants in the course of this armed conflict and issued the Military Order of November 13, 2001, to govern the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” This Order authorized the Secretary of Defense to establish military commissions to try individuals subject to the Order for any offenses triable by military commission that such individuals are alleged to have committed.

(5): The Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), held that the military commissions established by the Department of Defense under the President’s Military Order of November 13, 2001, were not consistent with certain aspects of United States domestic law. The Congress may by law, and does by enactment of this statute, eliminate any deficiency of statutory authority to facilitate bringing terrorists with whom the United States is engaged in armed conflict to justice for violations of the law of war and other offenses triable by military commissions. The prosecution of such individuals by military commissions established and conducted consistent with

this Act fully complies with the Constitution, the laws of the United States, treaties to which the United States is a party, and the law of war.

(6)

The use of military commissions is particularly important in this context because other alternatives, such as the use of courts-martial, generally are impracticable. The terrorists with whom the United States is engaged in armed conflict have demonstrated a commitment to the destruction of the United States and its people, to the violation of the law of war, and to the abuse of American legal processes. In a time of ongoing armed conflict, it generally is neither practicable nor appropriate for combatants like al Qaeda terrorists to be tried before tribunals that include all of the procedures associated with courts-martial.

(7): Many procedures for courts-martial would not be practicable in trying the unlawful enemy combatants for whom this Act provides for trial by military commission. For instance, court-martial proceedings would in certain circumstances—

(A): compel the Government to share classified information with the accused, even though members of al Qaeda cannot be

trusted with our Nation’s secrets and it would not be consistent with the national security of the United States to provide them with access to classified information;

(B)

exclude the use of hearsay evidence even though such evidence often will be the best and most reliable evidence that the accused has committed a war crime. For example, many witnesses in military commission trials are likely to be foreign nationals who are not amenable to process or may be precluded for national security reasons from entering the United States or Guantanamo Bay to testify. Other witnesses may be unavailable because of military necessity, incarceration, injury, or death. In short, applying the hearsay rules from the Manual for Courts-Martial or from the Federal Rules of Evidence would make it virtually impossible to bring terrorists to justice for their violations of the law of war;

(C)

specify speedy trials and technicalrules for sworn and authenticated statements when, due to the exigencies of wartime, the United States cannot safely require members

of the armed forces to gather evidence on the battlefield, including civilian eyewitness testimony, as though they were police officers. Nor can the United States divert members from the front lines and their duty stations to attend military commission proceedings. Therefore, strict compliance with such rules for evidence gathered on the battlefield would be impracticable, given the preeminent focus on military operations and the chaotic nature of combat.

(8) The exclusive judicial review for whichthis Act, and the Detainee Treatment Act of 2005, provides is without precedent in the history of armed conflicts involving the United States, exceeds the scope of judicial review historically provided for by military commissions, and is channeled in a manner appropriately tailored to—

(A): the circumstances of the conflicts between the United States and international terrorist organizations; and

(B)

the need to ensure fair treatment of those detained as enemy combatants, to minimize the diversion of members of the armed forces from other wartime duties, and

to protect the national security of the United States.

(9) In early 2002, as memorialized in a memorandum dated February 7, 2002, the President determined that common Article 3 of the Geneva Conventions did not apply with respect to the United States conflict with al Qaeda because al Qaeda was not a party to those treaties and the conflict with al Qaeda was an armed conflict of an international character. That was the interpretation of the United States prior to the Supreme Court’s decision in Hamdan on June 29, 2006. Hamdan’s statement to the contrary makes it appropriate to clarify the standards imposed by common Article

3. This Act makes clear that the prohibitions against cruel, inhuman, and degrading treatment found in the Detainee Treatment Act of 2005 fully satisfy the obligations of the United States with respect to the standards for detention and treatment established by section 1 of common Article 3, except for those obligations arising under paragraphs

(b) and (d). In addition, the Act makes clear that the Geneva Conventions are not a source of judicially enforceable individual rights, thereby reaffirming that enforcement of the obligations imposed by the Conventions is a matter between the nations that are parties to them.

SEC. 3. AUTHORIZATION FOR MILITARY COMMISSIONS.

(a): IN GENERAL.—The President is authorized to establish military commissions for violations of the law of war and other offenses triable by military commissions as provided in section 4 of this Act (chapter 47A of title 10).

(b)

CONSTRUCTION.—The authority granted in subsection (a) shall not be construed to limit the authority of the President under the Constitution of the United States or the laws thereof to establish military commissions on the battlefield, in occupied territories, or in other armed conflicts should circumstances so require.

(c)

SCOPE OF PUNISHMENT AUTHORITY.—A military commission established pursuant to subsection (a) shall have authority to impose upon any person found guilty after a proceeding under this Act a sentence that is appropriate to the offense or offenses for which there was a finding of guilt, which sentence may include death where authorized by this Act, imprisonment for life or a term of years, payment of a fine or restitution, or such other lawful punishment or condition of punishment as the commission shall determine to be proper.

1 (d) EXECUTION OF PUNISHMENT.—The Secretary of

2 Defense shall be authorized to carry out a sentence of 3 punishment decreed by a military commission pursuant 4 to subsection (a) in accordance with such procedures as 5 the Secretary may prescribe.

6 (e) ANNUAL REPORT ON TRIALS BY MILITARY

7 COMMISSION.—

8 (1) ANNUAL REPORT REQUIRED.—Not later

9 than December 31 each year, the Secretary of De10 fense shall submit to the Armed Services Commit11 tees of the House of Representatives and the Sen12 ate an annual report on the conduct of trials by 13 military commissions established pursuant to sub14 section (a) during such year. 15 (2) FORM.—Each such report shall be sub16 mitted in unclassified form, with classified annex, 17 if necessary and consistent with national security.

18 SEC. 4. MILITARY COMMISSIONS

19 (a) MILITARY COMMISSIONS.—

20 (1) IN GENERAL.—Subtitle A of title 10,

21 United States Code, is amended by inserting after

22 chapter 47 the following new chapter:

23 “CHAPTER 47A—MILITARY COMMISSIONS

24 “SUBCHAPTER I—GENERAL PROVISIONS “Sec. “948a. Definitions. “948b. Military commissions generally.

“948c. Persons subject to military commissions. “948d. Jurisdiction of military commissions.

“§ 948a. Definitions

“In this chapter: “(1) ALIEN.—The term ‘alien’ means an individual who is not a citizen of the United States.

“(2) CLASSIFIED INFORMATION.— The term

‘classified information’ means the following—

“(A) Any information or material that

has been determined by the United States

Government pursuant to statute, Executive

order, or regulation to require protection

against unauthorized disclosure for reasons

of national security.

“(B) Any restricted data, as that term

is defined in section 11 y. of the Atomic En

ergy Act of 1954 (42 U.S.C. 2014(y)).

“(3) COMMISSION.—The term ‘commission’ means a military commission established pursuant to chapter 47A of title 10, United States Code.

“(4) CONVENING AUTHORITY.—The term

‘convening authority’ shall be the Secretary of Defense or his designee.

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

“(6) SECRETARY.—The term ‘Secretary’ means the Secretary of Defense.

“(7) UNLAWFUL ENEMY COMBATANT.—The term ‘unlawful enemy combatant’ means an individual determined by or under the authority of the President or the Secretary of Defense—

“(A) to be part of or affiliated with a

force or organization—including but not

limited to al Qaeda, the Taliban, any interna

tional terrorist organization, or associated

forces—engaged in hostilities against the United States or its co-belligerents in violation of the law of war;

“(B) to have committed a hostile act in aid of such a force or organization so engaged; or

“(C) to have supported hostilities in

aid of such a force or organization so en

gaged.

“This definition includes any individual determined by a Combatant Status Review Tribunal, before the effective date of this Act, to have been properly detained as an enemy combatant, but excludes any alien determined by the President or the Secretary of Defense (whether on an individualized or collective basis), or by any competent tribunal established under their authority, to be (i) a lawful enemy combatant (including a prisoner of war), or (ii) a protected person whose trial by these military commissions would be inconsistent with Articles 64-76 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949. For purposes of this section, the term “protected person” refers to the category of persons described in Article 4 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949.

“(6) GENEVA CONVENTIONS.—The term ‘Geneva Conventions’ means the international conventions signed at Geneva on August 12, 1949, including common Article 3.

“§ 948b. Military commissions generally

“(a) PURPOSE.—This chapter codifies and establishes procedures governing the use of military commissions to try unlawful enemy combatants for violations of the law of war and other offenses triable by military commissions. Although military commissions traditionally have been constituted by order of the President, the decision of the Supreme Court in Hamdan v. Rumsfeld makes it both necessary and appropriate to codify procedures for military commissions as set forth herein.

“(b) RULE OF CONSTRUCTION.—The procedures for military commissions set forth in this chapter are modeled after the procedures established for courts-martial in the Uniform Code of Military Justice. However, it would be neither desirable nor practicable to try unlawful enemy combatants by court-martial procedures. The trial of such persons by military commission presents new challenges that require that interpretations of this Act not be unduly influenced by the rules and procedures developed for courts-martial. Therefore, no construction or application of chapter 47 of this title shall be binding in the construction or application of this chapter.

“(c) Alien unlawful enemy combatants may be tried for violations of the law of war and other offenses triable by military commissions committed against the United States or its co-belligerents before, on, or after September 11, 2001.

“(d) A military commission established under this chapter is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions. “§ 948c. Persons subject to military commissions

“Alien unlawful enemy combatants, as defined in section 948a of this title, shall be subject to trial by military commissions as set forth in this chapter. “§ 948d. Jurisdiction of military commissions

“(a) Military commissions shall have jurisdiction to try any offense made punishable under this chapter, when committed by an alien unlawful enemy combatant. Military commissions shall not have jurisdiction over lawful enemy combatants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of Title 10, United States Code. Courts-martial established

1 under chapter 47 shall have jurisdiction to try a lawful 2 enemy combatant for any offense made punishable under 3 this chapter. 4 “(b) Military commissions shall not have jurisdic5 tion over any individual determined by the President or 6 the Secretary of Defense (whether on an individualized 7 or collective basis), or by any competent tribunal estab8 lished under their authority, to be a “protected person” 9 whose trial by these military commissions would be in10 consistent with Articles 64-76 of the Geneva Convention 11 Relative to the Protection of Civilian Persons in Time of 12 War of August 12, 1949. Such persons shall be tried in 13 courts-martial or other tribunals consistent with their 14 status under the Geneva Conventions. For purposes of 15 this section, the term “protected person” refers to the 16 category of persons described in Article 4 of the Geneva 17 Convention Relative to the Protected of Civilian Persons 18 in Time of War of August 12, 1949. 19 “(c) Military commissions may, under such limita20 tions as the Secretary of Defense may prescribe, adjudge 21 any punishment not forbidden by this chapter, including 22 the penalty of death where authorized by this chapter. 23 “SUBCHAPTER II—COMPOSITION OF MILITARY 24 COMMISSIONS “Sec. “948h. Who may convene military commissions. “948i. Who may serve on military commissions.

“948j. Military judge of a military commission. “948k. Detail of trial counsel and defense counsel. “948l. Detail or employment of reporters and interpreters. “948m. Number of members; excuse of members; absent and additional members.

1 “§ 948h. Who may convene military commissions

2 “(a) The Secretary may issue orders convening

3 military commissions to try individuals under this chap

4 ter.

5 “(b) The Secretary may delegate his authority to

6 convene military commissions or to promulgate any

7 regulations under this chapter.

8 “§ 948i. Who may serve on military commissions

9 “(a) IN GENERAL.—Any commissioned officer of 10 the United States armed forces on active duty is eligible 11 to serve on a military commission. Eligible commis12 sioned officers shall include, without limitation, reserve 13 personnel on active duty, National Guard personnel on 14 active duty in Federal service, and retired personnel re15 called to active duty. 16 “(b) DETAIL OF MEMBERS.—When convening a 17 commission, the convening authority shall detail as 18 members thereof such members of the armed forces as, in 19 his opinion, are fully qualified for the duty by reason of 20 age, education, training, experience, length of service, 21 and judicial temperament. No member of an armed force 22 shall be eligible to serve as a member of a commission when he is the accuser or a witness for the prosecution or has acted as an investigator or counsel in the same case.

“(c) EXCUSE OF MEMBERS.—Before a commission is assembled for the trial of a case, the convening authority may excuse a member of the commission from participating in the case. “§ 948j. Military judge of a military commission

“(a) DETAIL OF A MILITARY JUDGE.—A military judge shall be detailed to each commission. The Secretary shall prescribe regulations providing for the manner in which military judges are detailed to such commissions. The military judge shall preside over each commission to which he has been detailed. The convening authority shall not prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed relating to his performance of duty as a military judge.

“(b) ELIGIBILITY.—A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State, and who is certified to be qualified for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member. A commissioned officer who is certified to be qualified for duty as a military judge of a commission may perform such other duties as are assigned to him by or with the approval of that Judge Advocate General or his designee.

“(c) INELIGIBILITY OF CERTAIN INDIVIDUALS.—No person is eligible to act as military judge in any case in which he is the accuser or a witness or has acted as investigator or a counsel in the same case.

“(d) CONSULTATION WITH MEMBERS; INELIGIBILITY TO VOTE.—Except as provided in section 949d of this title, the military judge detailed to the commission may not consult with the members of the commission except in the presence of the accused, trial counsel, and defense counsel, nor may he vote with the members of the commission. “§ 948k. Detail of trial counsel and defense counsel

“(a) DETAIL OF COUNSEL GENERALLY.— “(1) Trial counsel and military defense counsel shall be detailed for each commission.

“(2) Assistant trial counsel and assistant and associate military defense counsel may be detailed for each commission.

“(3) Military defense counsel shall be detailed as soon as practicable after the swearing of charges against the person accused.

“(4) The Secretary shall prescribe regula

tions providing for the manner in which counsel

are detailed for military commissions and for the

persons who are authorized to detail counsel for

such military commissions.

“(b) TRIAL COUNSEL.—Subject to subsection (d), trial counsel detailed for a military commission under this chapter must be— “(1) a judge advocate (as that term is defined in section 801 of this title) who is—

“(A) a graduate of an accredited law

school or is a member of the bar of a Federal

court or of the highest court of a State; and

“(B) certified as competent to perform duties as trial counsel before general courts-martial by the Judge Advocate General of the armed force of which he is a member; or “(2) a civilian who is—

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

“(B) otherwise qualified to practice

before the commission pursuant to regula

tions prescribed by the Secretary.

“(c) MILITARY DEFENSE COUNSEL.—Subject to subsection (d), military defense counsel detailed for a military commission under this chapter must be a judge advocate (as so defined) who is—

“(1) a graduate of an accredited law school

or a member of the bar of a Federal court or of the

highest court of a State; and

“(2) certified as competent to perform duties

as defense counsel before general courts-martial by

the Judge Advocate General of the armed force of

which he is a member.

“(d) INELIGIBILITY OF CERTAIN INDIVIDUALS.—No person who has acted as an investigator, military judge, or member of a military commission under this chapter may act later as trial counsel or defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution.

“§ 948l. Detail or employment of reporters and interpreters

“(a) COURT REPORTERS.—Under such regulations as the Secretary may prescribe, the convening authority of a military commission shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that commission.

“(b) INTERPRETERS.—Under like regulations the convening authority may detail or employ interpreters who shall interpret for the commission, and, as necessary, for trial counsel and defense counsel.

“(c) TRANSCRIPT; RECORD.—The transcript shall be under the control of the convening authority, which is responsible for preparing the record of the proceedings.

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

“(a) NUMBER OF MEMBERS.—(1) A military commission under this chapter shall, except as provided in paragraph (2), have at least five members.

“(2) In a case in which the death penalty is sought, the military commission shall have the number of members prescribed by section 949m(c) of this title.

“(b) EXCUSE OF MEMBERS.—No member of a military commission may be absent or excused after the commission has been assembled for the trial of the accused unless excused—

“(1) as a result of challenge;

“(2) by the military judge for physical dis

ability or other good cause; or

“(3) by order of the convening authority for

good cause.

1 “(c) ABSENT AND ADDITIONAL MEMBERS.—

2 Whenever a military commission is reduced below the 3 requisite number of members, the trial may not proceed 4 unless the convening authority details new members suf5 ficient to provide not less than the requisite number. The 6 trial may proceed with the new members present after the 7 recorded evidence previously introduced before the 8 members of the commission has been read to the com9 mission in the presence of the military judge, the accused 10 (except as provided by section 949d of this title), and 11 counsel for both sides. 12 “SUBCHAPTER III—PRE-TRIAL PROCEDURE “Sec. “948q. Charges and specifications. “948r. Compulsory self-incrimination prohibited; statements obtained by torture. “948s. Service of charges. 13 “§ 948q. Charges and specifications

14 “(a) CHARGES AND SPECIFICATIONS.—Charges and

15 specifications against an accused shall be signed by a 16 person subject to chapter 47 of this title under oath before 17 a commissioned officer of the armed forces authorized to 18 administer oaths and shall state— 19 “(1) that the signer has personal knowledge 20 of, or reason to believe, the matters set forth 21 therein; and 22 “(2) that they are true in fact to the best of 23 his knowledge and belief.

“(b) NOTICE TO ACCUSED.—Upon the swearing of the charges and specifications in accordance with subsection (a), the accused shall be informed of the charges and specifications against him as soon as practicable.

§ 948r. Compulsory self-incrimination prohibited; statements obtained by torture

“(a) IN GENERAL.—No person shall be required to testify against himself at a commission proceeding.

“(b) STATEMENTS OBTAINED BY TORTURE.—A statement obtained by use of torture, as defined in 18

U.S.C. § 2340, whether or not under color of law, shall not be admissible against the accused, except against a person accused of torture as evidence the statement was made.

“(c) STATEMENTS NOT OBTAINED BY TORTURE.— No otherwise admissible statement may be received in evidence, including statements allegedly obtained by coercion, if the military judge finds that the circumstances under which the statement was made render it unreliable or lacking in probative value.

“§ 948s. Service of charges

“The trial counsel assigned to the case shall cause to be served upon the accused and counsel a copy of the charges upon which trial is to be had in English and, if appropriate, in another language that the accused under1 stands, sufficiently in advance of trial to prepare a de

2 fense.

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

4 “§ 949a. Rules

5 “(a) PROCEDURES.—Pretrial, trial, and post-trial

6 procedures, including elements and modes of proof, for

7 cases triable by military commission under this chapter

8 shall be prescribed by the Secretary, but may not be con

9 trary to or inconsistent with this chapter.

10 “(b) RULES OF EVIDENCE.—Subject to such excep

11 tions and limitations as the Secretary may provide by

12 regulation, evidence in a military commission shall be

13 admissible if the military judge determines that the evi

14 dence would have probative value to a reasonable person.

15 “(c) HEARSAY EVIDENCE.—Hearsay evidence is

16 admissible, unless the military judge finds that the cir

17 cumstances render it unreliable or lacking in probative value, provided that the proponent of the evidence makes the evidence known to the adverse party in advance of trial or hearing.

“The military judge shall exclude any evidence the probative value of which is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members of the commission, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

“§ 949b. Unlawfully influencing action of military commission

“(a) IN GENERAL.—(1) No authority convening a military commission under this chapter may censure, reprimand, or admonish the commission or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the commission, or with respect to any other exercises of its or his functions in the conduct of the proceedings.

“(2) No person may attempt to coerce or, by any unauthorized means, influence the action of a commission or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.

“(3) The foregoing provisions of this subsection shall not apply with respect to—

“(A) general instructional or informational

courses in military justice if such courses are de

signed solely for the purpose of instructing mem

bers of a command in the substantive and proce

dural aspects of military commissions; or

“(B) statements and instructions given in

open proceedings by the military judge or counsel.

“(b) PROHIBITION ON CONSIDERATION OF ACTIONS ON COMMISSION IN EVALUATION OF FITNESS. In the preparation of an effectiveness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a commissioned officer of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of any such officer or in determining whether any such officer should be retained on active duty, no person may—

“(1) consider or evaluate the performance of

duty of any member of a military commission un

der this chapter; or

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

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

“(a) TRIAL COUNSEL.—The trial counsel of a military commission shall prosecute in the name of the United States.

“(b) DEFENSE COUNSEL.—(1) The accused shall be represented in his defense before a military commission as provided in this subsection.

“(2) The accused shall be represented by military counsel detailed under section 948k of this title.

“(3) The accused may be represented by civilian counsel if retained by him, provided that civilian counsel—

“(A) is a United States citizen;

“(B) is admitted to the practice of law in a State, district, territory, or possession of the United States, or before a Federal court;

“(C) has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct;

“(D) has been determined to be eligible for access to information classified at the level Secret or higher; and

“(E) has signed a written agreement to com

ply with all applicable regulations or instructions

for counsel, including any rules of court for con

duct during the proceedings.

“Civilian defense counsel shall protect any classified information received during the course of their representation of the accused in accordance with all applicable law governing the protection of classified information, and shall not divulge such information to any person not authorized to receive it.

“(4) If the accused is represented by civilian counsel, military counsel detailed shall act as associate counsel.

“(5) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 948k of this title to detail counsel in his sole discretion may detail additional military counsel.

“(6) Defense counsel may cross-examine each witness for the prosecution who testifies before the commission. “§ 949d. Sessions

“(a) SESSIONS WITHOUT PRESENCE OF MEMBERS.—

(1) At any time after the service of charges which have been referred for trial by military commission, the military judge may call the commission into session without the presence of the members for the purpose of—

“(A) hearing and determining motions rais

ing defenses or objections which are capable of de

termination without trial of the issues raised by a

plea of not guilty;

“(B) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the commission;

“(C) if permitted by regulations of the Secretary, receiving the pleas of the accused; and

“(D) performing any other procedural func

tion which may be performed by the military judge

under this chapter or under rules prescribed pursu

ant to section 949a of this title and which does not

require the presence of the members of the com

mission.

“(2) Except as provided in subsection (e), any proceedings under paragraph (1) shall be conducted in the presence of the accused, defense counsel, and trial counsel, and shall be made part of the record.

“(b) PROCEEDINGS IN PRESENCE OF ACCUSED.— Except as provided in subsections (c) and (e), all proceedings of a military commission under this chapter shall be in the presence of the accused, defense counsel, and trial counsel, and shall be made a part of the record.

“(c) DELIBERATIONS OR VOTE OF MEMBERS.— When the members of the commission deliberate or vote, only the members may be present.

“(d) PUBLIC PROCEEDINGS.—(1) The military commission shall hold open and public proceedings.

“(2) The military judge may close to the public all or a part of the proceedings of a military commission under this chapter only upon making a specific finding that such closure is necessary to—

“(A) protect information the disclosure of

which could reasonably be expected to cause iden

tifiable damage to the public interest or the na

tional security, including intelligence or law en

forcement sources, methods, or activities; or

“(B) ensure the physical safety of individu

als.

“(e) LIMITED EXCLUSION OF THE ACCUSED FOR THE PROTECTION OF CLASSIFIED INFORMATION.—(1) The military judge may, subject to the provisions of this subsection, permit the admission in a military commission under this chapter of classified information outside the presence of the accused.

“(2) The military judge shall not exclude the accused from any portion of the proceeding except upon a specific finding that extraordinary circumstances exist such that—

“(A) the exclusion of the accused—

“(i) is necessary to protect classified information the disclosure of which to the accused could reasonably be expected to cause identifiable damage to the national security, including intelligence or law enforcement sources, methods, or activities; or

“(ii) is necessary to ensure the physical safety of individuals; or

“(iii) is necessary to prevent disruption of the proceedings by the accused; and “(B) the exclusion of the accused—

“(i) is no broader than necessary; and

“(ii) will not deprive the accused of a

full and fair trial.

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

“(B) Before trial counsel may make a presentation described in subparagraph (A) requesting the admission of classified evidence outside the presence of the accused, the head of the executive or military department or governmental agency which has control over the matter (after personal consideration by that officer) shall certify in writing to the military judge that—

“(i) the disclosure of such classified infor

mation to the accused could reasonably be ex

pected to prejudice the national security; and

“(ii) such evidence has been declassified to

the maximum extent possible, consistent with the

requirements of national security.

“(4)(A) No evidence shall be admitted if the accused is not present for its admission or the evidence is not otherwise provided to the accused, unless the evidence is classified information and the military judge makes a specific finding that—

“(i) consideration of the evidence by the

commission, without the presence of the accused,

is warranted; and

“(ii) admission of an unclassified summary or redacted version of that evidence would not be an adequate substitute and, in the case of testimony, alternative methods to obscure the identity of the witness are not adequate; and

“(iii) admission of the evidence would not

deprive the accused of a full and fair trial.

“(B) If the accused is excluded from a portion of the proceeding, the accused shall be provided with a redacted transcript of the proceeding and, to the extent practicable, an unclassified summary of any evidence introduced. Under no circumstances shall such a summary or redacted transcript compromise the interests warranting the exclusion of the accused under this subsection.

“(5)(A) Military defense counsel shall be present and able to participate in all trial proceedings, and shall be given access to all evidence admitted under subparagraph (4).

“(B) Civilian defense counsel shall be permitted to be present and to participate in all trial proceedings, and shall be given access to evidence admitted under subparagraph (4), provided that civilian defense counsel has obtained the necessary security clearances and that such presence and access are consistent with regulations that the Secretary may prescribe to protect classified information.

“(C) Notwithstanding any other provision of law, any defense counsel who receives classified information admitted pursuant to subparagraph (4) shall not be obligated to, and may not, disclose that evidence to the accused.

“(f) ADMISSION OF STATEMENTS OF ACCUSED.—(1) Notwithstanding any other provision in this chapter, no statement made by the accused during an interrogation, even if otherwise classified, may be admitted into evidence in a military commission under this chapter unless the accused is present for its admission or the evidence is otherwise provided to the accused.

“(2) For purposes of this subsection, a ‘statement’ is a statement communicated knowingly and directly by the accused in response to questioning by foreign or United States military, intelligence, or criminal investigative personnel. This paragraph shall not be construed to prevent the redaction of intelligence sources or methods, which do not constitute statements of the accused, from any document provided to the accused or admitted into evidence. “§ 949e. Continuances

“The military judge may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just. “§ 949f. Challenges

“(a) CHALLENGES AUTHORIZED.—The military judge and members of the commission may be challenged by the accused or the trial counsel for cause stated to the commission. The military judge shall determine the relevance and validity of the challenges for cause, and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.

“(b) PEREMPTORY CHALLENGES.—Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge may not be challenged except for cause.

“(c) CHALLENGES AGAINST ADDITIONAL MEM-BERS.—Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to one peremptory challenge against members not previously subject to peremptory challenge. “§ 949g. Oaths

“(a) IN GENERAL.—(1) Before performing their respective duties, military judges, members of commissions, trial counsel, defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully.

“(2) The form of the oath required by paragraph (1), the time and place of the taking thereof, the manner of recording the same, and whether the oath shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulations of the Secretary. These regulations may provide that—

“(A) an oath to perform faithfully duties as a

military judge, trial counsel, or defense counsel,

may be taken at any time by any judge advocate or

other person certified to be qualified or competent

for duty; and

“(B) if such an oath is taken it need not

again be taken at the time the judge advocate, or

other person is detailed to that duty.

“(b) WITNESSES.—Each witness before a military commission under this chapter shall be examined on oath.

“(c) OATH DEFINED.—As used in this section, “oath” includes an affirmation. “§ 949h. Former jeopardy

“(a) IN GENERAL.—No person may, without his consent, be tried by a commission a second time for the same offense.

“(b) SCOPE OF TRIAL.—No proceeding in which the accused has been found guilty by military commission upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed. “§ 949i. Pleas of the accused

“(a) PLEA OF NOT GUILTY.—If an accused after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the commission shall proceed as though he had pleaded not guilty.

“(b) FINDING OF GUILT AFTER GUILTY PLEA.— With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without a vote. This finding shall constitute the finding of the commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

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

“(a) IN GENERAL.—(1) Defense counsel in a military commission under this chapter shall have a reasonable opportunity to obtain witnesses and other evidence, including evidence in the possession of the United States, as specified in regulations prescribed by the Secretary.

“(2) Process issued in military commissions to compel witnesses to appear and testify and to compel the production of other evidence—

“(A) shall be similar to that which courts of

the United States having criminal jurisdiction may

lawfully issue; and

“(B) shall run to any place where the United

States shall have jurisdiction thereof.

“(b) TREATMENT OF CERTAIN ITEMS.—The military judge in a military commission under this chapter may, upon a sufficient showing, authorize trial counsel in making documents available to the defense through discovery conducted pursuant to such rules as the Secretary shall prescribe—

“(1) to delete specified items of classified

information from such documents;

“(2) to substitute an unclassified summary of

the information for such classified documents; or

“(3) to substitute an unclassified statement admitting relevant facts that classified information would tend to prove. “(c) DISCLOSURE OF EXCULPATORY EVIDENCE.—

(1) As soon as practicable, trial counsel in a military commission under this chapter shall disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused.

“(2) Exculpatory evidence that is classified may be provided solely to defense counsel, and not the accused, after in camera review by the military judge.

“(3) Before classified evidence may be withheld from the accused under this subsection, the executive or military department or governmental agency which has control over the matter shall ensure and shall certify in writing to the military judge that the disclosure of such evidence to the accused could reasonably be expected to prejudice the national security and that such evidence has been declassified to the maximum extent possible, consistent with the requirements of national security.

“(4) Any classified exculpatory evidence that is not disclosed to the accused under this subsection— “(A) shall be provided to military defense counsel; and

“(B) shall be provided to civilian defense counsel, provided that civilian defense counsel has obtained the necessary security clearances and access to such evidence is consistent with regulations that the Secretary may prescribe to protect classified information; and

“(C) shall be provided to the accused in a

redacted or summary form, if it is possible to do so

without compromising intelligence sources, meth

ods, or activities, or other national security inter

ests.

“(5) Notwithstanding any other provision of law, any defense counsel who receives evidence under this subsection shall not be obligated to, and may not, disclose that evidence to the accused. “§ 949k. Defense of lack of mental responsibility

“(a) AFFIRMATIVE DEFENSE.—It is an affirmative defense in a trial by military commission that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.

“(b) BURDEN OF PROOF.—The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.

“(c) FINDINGS FOLLOWING ASSERTION OF DE-FENSE.—Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall instruct the members of the commission as to the defense of lack of mental responsibility under this section and shall charge them to find the accused—

“(1) guilty;

“(2) not guilty; or

“(3) not guilty only by reason of lack of

mental responsibility.

“(d) MAJORITY VOTE REQUIRED FOR FINDING.— The accused shall be found not guilty only by reason of lack of mental responsibility under subsection (c)(3) only if a majority of the members of the commission at the time the vote is taken determines that the defense of lack of mental responsibility has been established. “§ 949l. Voting and rulings

“(a) VOTE BY SECRET WRITTEN BALLOT.—Voting by members of a military commission on the findings and on the sentence shall be by secret written ballot.

“(b) RULINGS.—(1) The military judge shall rule upon all questions of law, including the admissibility of evidence, and all interlocutory questions arising during the proceedings.

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

“(c) INSTRUCTIONS PRIOR TO VOTE.—Before a vote is taken of the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the commission as to the elements of the offense and charge them—

“(1) that the accused must be presumed to be

innocent until his guilt is established by legal and

competent evidence beyond reasonable doubt;

“(2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted;

“(3) that, if there is reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and

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

“§ 949m. Number of votes required

“(a) CONVICTION.—No person may be convicted of any offense, except as provided in section 949i(b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken.

“(b) SENTENCES.—(1) Except as provided in paragraphs (2) and (3), sentences shall be determined by a military commission by the concurrence of two-thirds of the members present at the time the vote is taken.

“(2) No person may be sentenced to suffer death, except insofar as—

“(A) death has been expressly authorized

under this Act for an offense of which the accused

has been found guilty;

“(B) the charges referred to the commission expressly sought the penalty of death;

“(C) the accused was convicted of the offense by the concurrence of all the members of the military commission present at the time the vote is taken; and

“(D) all members of the military commis

sion present at the time the vote was taken con

curred in the sentence of death.

“(3) No person may be sentenced to life imprisonment or to confinement for more than 10 years, except by the concurrence of three-fourths of the members at the time the vote is taken.

“(c) NUMBER OF MEMBERS REQUIRED FOR PENALTY OF DEATH.—(1) Except as provided in paragraph (2), in a case in which the penalty of death is sought, the number of members shall be not less than 12.

“(2) In any case described in paragraph (1) in which 12 members are not reasonably available because of physical conditions or military exigencies, the convening authority shall specify a lesser number of members for the military commission (but not fewer than 5 members), and the military commission may be assembled and the trial held with not fewer than the number of members so specified. In such a case, the convening authority shall make a detailed written statement, to be appended to the record, stating why a greater number of members were not reasonably available. “§ 949n. Military commission to announce action

“A military commission shall announce its findings and sentence to the parties as soon as determined.

“§ 949o. Record of trial

“(a) RECORD; AUTHENTICATION.—Each military commission shall keep a separate, substantially verbatim, record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member of the commission if the trial counsel is unable to authenticate it by reason of his death, disability, or absence. Where appropriate, and as provided by regulation, the record of the military commission may contain a classified annex.

“(b) COMPLETE RECORD REQUIRED.—A complete record of the proceedings and testimony shall be prepared in every military commission established under this chapter.

“(c) PROVISION OF C