[111th Congress Public Law 84]
[From the U.S. Government Printing Office]
TITLE XVIII--MILITARY <<NOTE: Military Commissions Act of
2009.>> COMMISSIONS
Sec. 1801. Short title.
Sec. 1802. Military commissions.
Sec. 1803. Conforming amendments.
Sec. 1804. Proceedings under prior statute.
Sec. 1805. Submittal to Congress of revised rules for military
commissions.
Sec. 1806. Annual reports to Congress on trials by military commission.
Sec. 1807. Sense of Congress on military commission system.
SEC. 1801. <<NOTE: 10 USC 948a note.>> SHORT TITLE.
This title may be cited as the ``Military Commissions Act of 2009''.
SEC. 1802. MILITARY COMMISSIONS.
Chapter 47A of title 10, United States Code, is amended to read as
follows:
``CHAPTER 47A--MILITARY COMMISSIONS
``SUBCHAPTER Sec.
``I. General Provisions........................................... 948a.
``II. Composition of Military Commissions......................... 948h.
``III. Pre-Trial Procedure........................................ 948q.
``IV. Trial Procedure............................................. 949a.
``V. Classified Information Procedures...........................949p-1.
``VI. Sentences................................................... 949s.
``VII. Post-Trial Procedures and Review of Military Commissions... 950a.
``VIII. Punitive Matters.......................................... 950p.
``SUBCHAPTER I--GENERAL PROVISIONS
``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``Sec. 948a. Definitions
``In this chapter:
``(1) Alien.--The term `alien' means an individual who is
not a citizen of the United States.
``(2) Classified information.--The term `classified
information' means the following:
``(A) Any information or material that has been
determined by the United States Government pursuant to
statute, Executive order, or regulation to require
protection against unauthorized disclosure for reasons
of national security.
``(B) Any restricted data, as that term is defined
in section 11 y. of the Atomic Energy Act of 1954 (42
U.S.C. 2014(y)).
[[Page 123 STAT. 2575]]
``(3) Coalition partner.--The term `coalition partner', with
respect to hostilities engaged in by the United States, means
any State or armed force directly engaged along with the United
States in such hostilities or providing direct operational
support to the United States in connection with such
hostilities.
``(4) Geneva convention relative to the treatment of
prisoners of war.--The term `Geneva Convention Relative to the
Treatment of Prisoners of War' means the Convention Relative to
the Treatment of Prisoners of War, done at Geneva August 12,
1949 (6 UST 3316).
``(5) Geneva conventions.--The term `Geneva Conventions'
means the international conventions signed at Geneva on August
12, 1949.
``(6) Privileged belligerent.--The term `privileged
belligerent' means an individual belonging to one of the eight
categories enumerated in Article 4 of the Geneva Convention
Relative to the Treatment of Prisoners of War.
``(7) Unprivileged enemy belligerent.--The term
`unprivileged enemy belligerent' means an individual (other than
a privileged belligerent) who--
``(A) has engaged in hostilities against the United
States or its coalition partners;
``(B) has purposefully and materially supported
hostilities against the United States or its coalition
partners; or
``(C) was a part of al Qaeda at the time of the
alleged offense under this chapter.
``(8) National security.--The term `national security' means
the national defense and foreign relations of the United States.
``(9) Hostilities.--The term `hostilities' means any
conflict subject to the laws of war.
``Sec. 948b. Military commissions generally
``(a) Purpose.--This chapter establishes procedures governing the
use of military commissions to try alien unprivileged enemy belligerents
for violations of the law of war and other offenses triable by military
commission.
``(b) Authority for Military Commissions Under This Chapter.--The
President is authorized to establish military commissions under this
chapter for offenses triable by military commission as provided in this
chapter.
``(c) Construction of Provisions.--The procedures for military
commissions set forth in this chapter are based upon the procedures for
trial by general courts-martial under chapter 47 of this title (the
Uniform Code of Military Justice). Chapter 47 of this title does not, by
its terms, apply to trial by military commission except as specifically
provided therein or in this chapter, and many of the provisions of
chapter 47 of this title are by their terms inapplicable to military
commissions. The judicial construction and application of chapter 47 of
this title, while instructive, is therefore not of its own force binding
on military commissions established under this chapter.
``(d) Inapplicability of Certain Provisions.--(1) The following
provisions of this title shall not apply to trial by military commission
under this chapter:
[[Page 123 STAT. 2576]]
``(A) Section 810 (article 10 of the Uniform Code of
Military Justice), relating to speedy trial, including any rule
of courts-martial relating to speedy trial.
``(B) Sections 831(a), (b), and (d) (articles 31(a), (b),
and (d) of the Uniform Code of Military Justice), relating to
compulsory self-incrimination.
``(C) Section 832 (article 32 of the Uniform Code of
Military Justice), relating to pretrial investigation.
``(2) <<NOTE: Applicability.>> Other provisions of chapter 47 of
this title shall apply to trial by military commission under this
chapter only to the extent provided by the terms of such provisions or
by this chapter.
``(e) Geneva Conventions Not Establishing Private Right of Action.--
No alien unprivileged enemy belligerent subject to trial by military
commission under this chapter may invoke the Geneva Conventions as a
basis for a private right of action.
``Sec. 948c. Persons subject to military commissions
``Any alien unprivileged enemy belligerent is subject to trial by
military commission as set forth in this chapter.
``Sec. 948d. Jurisdiction of military commissions
``A military commission under this chapter shall have jurisdiction
to try persons subject to this chapter for any offense made punishable
by this chapter, sections 904 and 906 of this title (articles 104 and
106 of the Uniform Code of Military Justice), or the law of war, whether
such offense was committed before, on, or after September 11, 2001, and
may, under such limitations as the President may prescribe, adjudge any
punishment not forbidden by this chapter, including the penalty of death
when specifically authorized under this chapter. A military commission
is a competent tribunal to make a finding sufficient for jurisdiction.
``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS
``Sec.
``948h. Who may convene military commissions.
``948i. Who may serve on military commissions.
``948j. Military judge of a military commission.
``948k. Detail of trial counsel and defense counsel.
``948l. Detail or employment of reporters and interpreters.
``948m. Number of members; excuse of members; absent and additional
members.
``Sec. 948h. Who may convene military commissions
``Military commissions under this chapter may be convened by the
Secretary of Defense or by any officer or official of the United States
designated by the Secretary for that purpose.
``Sec. 948i. Who may serve on military commissions
``(a) In General.--Any commissioned officer of the armed forces on
active duty is eligible to serve on a military commission under this
chapter, including commissioned officers of the reserve components of
the armed forces on active duty, commissioned officers of the National
Guard on active duty in Federal service, or retired commissioned
officers recalled to active duty.
``(b) Detail of Members.--When convening a military commission under
this chapter, the convening authority shall detail as members thereof
such members of the armed forces eligible under subsection (a) who, in
the opinion of the convening authority, are
[[Page 123 STAT. 2577]]
best qualified for the duty by reason of age, education, training,
experience, length of service, and judicial temperament. No member of an
armed force is eligible to serve as a member of a military commission
when such member is the accuser or a witness for the prosecution or has
acted as an investigator or counsel in the same case.
``(c) Excuse of Members.--Before a military commission under this
chapter is assembled for the trial of a case, the convening authority
may excuse a member from participating in the case.
``Sec. 948j. Military judge of a military commission
``(a) Detail of Military Judge.-- <<NOTE: Regulations.>> A military
judge shall be detailed to each military commission under this chapter.
The Secretary of Defense shall prescribe regulations providing for the
manner in which military judges are so detailed to military commissions.
The military judge shall preside over each military commission to which
such military judge has been detailed.
``(b) Eligibility.--A military judge shall be a commissioned officer
of the armed forces who is a member of the bar of a Federal court, or a
member of the bar of the highest court of a State, and who is certified
to be qualified for duty under section 826 of this title (article 26 of
the Uniform Code of Military Justice) as a military judge of general
courts-martial by the Judge Advocate General of the armed force of which
such military judge is a member.
``(c) Ineligibility of Certain Individuals.--No person is eligible
to act as military judge in a case of a military commission under this
chapter if such person is the accuser or a witness or has acted as
investigator or a counsel in the same case.
``(d) Consultation With Members; Ineligibility to Vote.--A military
judge detailed to a military commission under this chapter may not
consult with the members except in the presence of the accused (except
as otherwise provided in section 949d of this title), trial counsel, and
defense counsel, nor may such military judge vote with the members.
``(e) Other Duties.--A commissioned officer who is certified to be
qualified for duty as a military judge of a military commission under
this chapter may perform such other duties as are assigned to such
officer by or with the approval of the Judge Advocate General of the
armed force of which such officer is a member or the designee of such
Judge Advocate General.
``(f) Prohibition on Evaluation of Fitness by Convening Authority.--
The convening authority of a military commission under this chapter may
not prepare or review any report concerning the effectiveness, fitness,
or efficiency of a military judge detailed to the military commission
which relates to such judge's performance of duty as a military judge on
the military commission.
``Sec. 948k. Detail of trial counsel and defense counsel
``(a) Detail of Counsel Generally.--(1) Trial counsel and military
defense counsel shall be detailed for each military commission under
this chapter.
``(2) Assistant trial counsel and assistant and associate defense
counsel may be detailed for a military commission under this chapter.
``(3) Military defense counsel for a military commission under this
chapter shall be detailed as soon as practicable.
[[Page 123 STAT. 2578]]
``(4) <<NOTE: Regulations.>> The Secretary of Defense shall
prescribe regulations providing for the manner in which trial counsel
and military defense counsel are detailed for military commissions under
this chapter and for the persons who are authorized to detail such
counsel for such military commissions.
``(b) Trial Counsel.--Subject to subsection (e), a trial counsel
detailed for a military commission under this chapter shall be--
``(1) a judge advocate (as that term is defined in section
801 of this title (article 1 of the Uniform Code of Military
Justice)) who is--
``(A) a graduate of an accredited law school or 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 such judge
advocate is a member; or
``(2) a civilian who is--
``(A) a member of the bar of a Federal court or of
the highest court of a State; and
``(B) otherwise qualified to practice before the
military commission pursuant to regulations prescribed
by the Secretary of Defense.
``(c) Defense Counsel.--(1) Subject to subsection (e), a military
defense counsel detailed for a military commission under this chapter
shall be a judge advocate (as so defined) who is--
``(A) 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
``(B) certified as competent to perform duties as defense
counsel before general courts-martial by the Judge Advocate
General of the armed force of which such judge advocate is a
member.
``(2) <<NOTE: Regulations.>> The Secretary of Defense shall
prescribe regulations for the appointment and performance of defense
counsel in capital cases under this chapter.
``(d) Chief Prosecutor; Chief Defense Counsel.--(1) The Chief
Prosecutor in a military commission under this chapter shall meet the
requirements set forth in subsection (b)(1).
``(2) The Chief Defense Counsel in a military commission under this
chapter shall meet the requirements set forth in subsection (c)(1).
``(e) Ineligibility of Certain Individuals.--No person who has acted
as an investigator, military judge, or member of a military commission
under this chapter in any case may act later as trial counsel or
military defense counsel in the same case. No person who has acted for
the prosecution before a military commission under this chapter may act
later in the same case for the defense, nor may any person who has acted
for the defense before a military commission under this chapter act
later in the same case for the prosecution.
``Sec. 948l. Detail or employment of reporters and interpreters
``(a) Court Reporters.--Under such regulations as the Secretary of
Defense may prescribe, the convening authority of a military commission
under this chapter shall detail to or employ for the military commission
qualified court reporters, who shall prepare
[[Page 123 STAT. 2579]]
a verbatim record of the proceedings of and testimony taken before the
military commission.
``(b) Interpreters.--Under such regulations as the Secretary of
Defense may prescribe, the convening authority of a military commission
under this chapter may detail to or employ for the military commission
interpreters who shall interpret for the military commission, and, as
necessary, for trial counsel and defense counsel for the military
commission, and for the accused.
``(c) Transcript; Record.--The transcript of a military commission
under this chapter shall be under the control of the convening authority
of the military commission, who shall also be responsible for preparing
the record of the proceedings of the military commission.
``Sec. 948m. Number of members; excuse of members; absent and
additional members
``(a) Number of Members.--(1) Except as provided in paragraph (2), a
military commission under this chapter shall have at least five members.
``(2) In a case in which the accused before a military commission
under this chapter may be sentenced to a penalty of death, the military
commission shall have the number of members prescribed by section
949m(c) of this title.
``(b) Excuse of Members.--No member of a military commission under
this chapter may be absent or excused after the military commission has
been assembled for the trial of a case unless excused--
``(1) as a result of challenge;
``(2) by the military judge for physical disability or other
good cause; or
``(3) by order of the convening authority for good cause.
``(c) Absent and Additional Members.--Whenever a military commission
under this chapter is reduced below the number of members required by
subsection (a), the trial may not proceed unless the convening authority
details new members sufficient to provide not less than such number. The
trial may proceed with the new members present after the recorded
evidence previously introduced before the members has been read to the
military commission in the presence of the military judge, the accused
(except as provided in section 949d of this title), and counsel for both
sides.
``SUBCHAPTER III--PRE-TRIAL PROCEDURE
``Sec.
``948q. Charges and specifications.
``948r. Exclusion of statements obtained by torture or cruel, inhuman,
or degrading treatment; prohibition of self-incrimination;
admission of other statements of the accused.
``948s. Service of charges.
``Sec. 948q. Charges and specifications
``(a) Charges and Specifications.--Charges and specifications
against an accused in a military commission under this chapter shall be
signed by a person subject to chapter 47 of this title under oath before
a commissioned officer of the armed forces authorized to administer
oaths and shall state--
``(1) that the signer has personal knowledge of, or reason
to believe, the matters set forth therein; and
[[Page 123 STAT. 2580]]
``(2) that such matters are true in fact to the best of the
signer's knowledge and belief.
``(b) Notice to Accused.--Upon the swearing of the charges and
specifications in accordance with subsection (a), the accused shall be
informed of the charges and specifications against the accused as soon
as practicable.
``Sec. 948r. Exclusion of statements obtained by torture or cruel,
inhuman, or degrading treatment; prohibition of
self-incrimination; admission of other
statements of the accused
``(a) Exclusion of Statements Obtain by Torture or Cruel, Inhuman,
or Degrading Treatment.--No statement obtained by the use of torture or
by cruel, inhuman, or degrading treatment (as defined by section 1003 of
the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not
under color of law, shall be admissible in a military commission under
this chapter, except against a person accused of torture or such
treatment as evidence that the statement was made.
``(b) Self-incrimination Prohibited.--No person shall be required to
testify against himself or herself at a proceeding of a military
commission under this chapter.
``(c) Other Statements of the Accused.--A statement of the accused
may be admitted in evidence in a military commission under this chapter
only if the military judge finds--
``(1) that the totality of the circumstances renders the
statement reliable and possessing sufficient probative value;
and
``(2) that--
``(A) the statement was made incident to lawful
conduct during military operations at the point of
capture or during closely related active combat
engagement, and the interests of justice would best be
served by admission of the statement into evidence; or
``(B) the statement was voluntarily given.
``(d) Determination of Voluntariness.--In determining for purposes
of subsection (c)(2)(B) whether a statement was voluntarily given, the
military judge shall consider the totality of the circumstances,
including, as appropriate, the following:
``(1) The details of the taking of the statement, accounting
for the circumstances of the conduct of military and
intelligence operations during hostilities.
``(2) The characteristics of the accused, such as military
training, age, and education level.
``(3) The lapse of time, change of place, or change in
identity of the questioners between the statement sought to be
admitted and any prior questioning of the accused.
``Sec. 948s. Service of charges
``The trial counsel assigned to a case before a military commission
under this chapter shall cause to be served upon the accused and
military defense counsel a copy of the charges upon which trial is to be
had in English and, if appropriate, in another language that the accused
understands, sufficiently in advance of trial to prepare a defense.
[[Page 123 STAT. 2581]]
``SUBCHAPTER IV--TRIAL PROCEDURE
``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission and United
States Court of Military Commission Review.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.
``Sec. 949a. Rules
``(a) Procedures and Rules of Evidence.--Pretrial, trial, and post-
trial procedures, including elements and modes of proof, for cases
triable by military commission under this chapter may be prescribed by
the Secretary of Defense. Such procedures may not be contrary to or
inconsistent with this chapter. <<NOTE: Applicability.>> Except as
otherwise provided in this chapter or chapter 47 of this title, the
procedures and rules of evidence applicable in trials by general courts-
martial of the United States shall apply in trials by military
commission under this chapter.
``(b) Exceptions.--(1) In trials by military commission under this
chapter, the Secretary of Defense, in consultation with the Attorney
General, may make such exceptions in the applicability of the procedures
and rules of evidence otherwise applicable in general courts-martial as
may be required by the unique circumstances of the conduct of military
and intelligence operations during hostilities or by other practical
need consistent with this chapter.
``(2) Notwithstanding any exceptions authorized by paragraph (1),
the procedures and rules of evidence in trials by military commission
under this chapter shall include, at a minimum, the following rights of
the accused:
``(A) To present evidence in the accused's defense, to
cross-examine the witnesses who testify against the accused, and
to examine and respond to all evidence admitted against the
accused on the issue of guilt or innocence and for sentencing,
as provided for by this chapter.
``(B) To be present at all sessions of the military
commission (other than those for deliberations or voting),
except when excluded under section 949d of this title.
``(C)(i) When none of the charges preferred against the
accused are capital, to be represented before a military
commission by civilian counsel if provided at no expense to the
Government, and by either the defense counsel detailed or the
military counsel of the accused's own selection, if reasonably
available.
``(ii) When any of the charges preferred against the accused
are capital, to be represented before a military commission in
accordance with clause (i) and, to the greatest extent
practicable, by at least one additional counsel who is learned
in applicable law relating to capital cases and who, if
necessary, may be a civilian and compensated in accordance with
regulations prescribed by the Secretary of Defense.
[[Page 123 STAT. 2582]]
``(D) To self-representation, if the accused knowingly and
competently waives the assistance of counsel, subject to the
provisions of paragraph (4).
``(E) To the suppression of evidence that is not reliable or
probative.
``(F) To the suppression of evidence the probative value of
which is substantially outweighed by--
``(i) the danger of unfair prejudice, confusion of
the issues, or misleading the members; or
``(ii) considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.
``(3) In making exceptions in the applicability in trials by
military commission under this chapter from the procedures and rules
otherwise applicable in general courts-martial, the Secretary of Defense
may provide the following:
``(A) Evidence seized outside the United States shall not be
excluded from trial by military commission on the grounds that
the evidence was not seized pursuant to a search warrant or
authorization.
``(B) A statement of the accused that is otherwise
admissible shall not be excluded from trial by military
commission on grounds of alleged coercion or compulsory self-
incrimination so long as the evidence complies with the
provisions of section 948r of this title.
``(C) Evidence shall be admitted as authentic so long as--
``(i) the military judge of the military commission
determines that there is sufficient evidence that the
evidence is what it is claimed to be; and
``(ii) the military judge instructs the members that
they may consider any issue as to authentication or
identification of evidence in determining the weight, if
any, to be given to the evidence.
``(D) Hearsay evidence not otherwise admissible under the
rules of evidence applicable in trial by general courts-martial
may be admitted in a trial by military commission only if--
``(i) the proponent of the evidence makes known to
the adverse party, sufficiently in advance to provide
the adverse party with a fair opportunity to meet the
evidence, the proponent's intention to offer the
evidence, and the particulars of the evidence (including
information on the circumstances under which the
evidence was obtained); and
``(ii) <<NOTE: Determination.>> the military judge,
after taking into account all of the circumstances
surrounding the taking of the statement, including the
degree to which the statement is corroborated, the
indicia of reliability within the statement itself, and
whether the will of the declarant was overborne,
determines that--
``(I) the statement is offered as evidence of
a material fact;
``(II) the statement is probative on the point
for which it is offered;
``(III) direct testimony from the witness is
not available as a practical matter, taking into
consideration the physical location of the
witness, the unique circumstances of military and
intelligence operations during hostilities, and
the adverse impacts on military
[[Page 123 STAT. 2583]]
or intelligence operations that would likely
result from the production of the witness; and
``(IV) the general purposes of the rules of
evidence and the interests of justice will best be
served by admission of the statement into
evidence.
``(4)(A) The accused in a military commission under this chapter who
exercises the right to self-representation under paragraph (2)(D) shall
conform the accused's deportment and the conduct of the defense to the
rules of evidence, procedure, and decorum applicable to trials by
military commission.
``(B) Failure of the accused to conform to the rules described in
subparagraph (A) may result in a partial or total revocation by the
military judge of the right of self-representation under paragraph
(2)(D). In such case, the military counsel of the accused or an
appropriately authorized civilian counsel shall perform the functions
necessary for the defense.
``(c) Delegation of Authority To Prescribe Regulations.--The
Secretary of Defense may delegate the authority of the Secretary to
prescribe regulations under this chapter.
``(d) <<NOTE: Deadline. Reports.>> Notice to Congress of
Modification of Rules.--Not later than 60 days before the date on which
any proposed modification of the rules in effect for military
commissions under this chapter goes into effect, the Secretary of
Defense shall submit to the Committee on Armed Services of the Senate
and the Committee on Armed Services of the House of Representatives a
report describing the proposed modification.
``Sec. 949b. Unlawfully influencing action of military commission
and United States Court of Military Commission
Review
``(a) Military Commissions.--(1) No authority convening a military
commission under this chapter may censure, reprimand, or admonish the
military commission, or any member, military judge, or counsel thereof,
with respect to the findings or sentence adjudged by the military
commission, or with respect to any other exercises of its or their
functions in the conduct of the proceedings.
``(2) No person may attempt to coerce or, by any unauthorized means,
influence--
``(A) the action of a military commission under this
chapter, or any member thereof, in reaching the findings or
sentence in any case;
``(B) the action of any convening, approving, or reviewing
authority with respect to their judicial acts; or
``(C) the exercise of professional judgment by trial counsel
or defense counsel.
``(3) The provisions of this subsection shall not apply with respect
to--
``(A) general instructional or informational courses in
military justice if such courses are designed solely for the
purpose of instructing members of a command in the substantive
and procedural aspects of military commissions; or
``(B) statements and instructions given in open proceedings
by a military judge or counsel.
``(b) United States Court of Military Commission Review.--(1) No
person may attempt to coerce or, by any unauthorized means, influence--
[[Page 123 STAT. 2584]]
``(A) the action of a military appellate judge or other duly
appointed judge under this chapter on the United States Court of
Military Commissions Review in reaching a decision on the
findings or sentence on appeal in any case; or
``(B) the exercise of professional judgment by trial counsel
or defense counsel appearing before the United States Court of
Military Commission Review.
``(2) No person may censure, reprimand, or admonish a military
appellate judge on the United States Court of Military Commission
Review, or counsel thereof, with respect to any exercise of their
functions in the conduct of proceedings under this chapter.
``(3) The provisions of this subsection shall not apply with respect
to--
``(A) general instructional or informational courses in
military justice if such courses are designed solely for the
purpose of instructing members of a command in the substantive
and procedural aspects of military commissions; or
``(B) statements and instructions given in open proceedings
by an appellate military judge or a duly appointed appellate
judge on the United States Court of Military Commission Review,
or counsel.
``(4) No appellate military judge on the United States Court of
Military Commission Review may be reassigned to other duties, except
under circumstances as follows:
``(A) The appellate military judge voluntarily requests to
be reassigned to other duties and the Secretary of Defense, or
the designee of the Secretary, in consultation with the Judge
Advocate General of the armed force of which the appellate
military judge is a member, approves such reassignment.
``(B) The appellate military judge retires or otherwise
separates from the armed forces.
``(C) The appellate military judge is reassigned to other
duties by the Secretary of Defense, or the designee of the
Secretary, in consultation with the Judge Advocate General of
the armed force of which the appellate military judge is a
member, based on military necessity and such reassignment is
consistent with service rotation regulations (to the extent such
regulations are applicable).
``(D) The appellate military judge is withdrawn by the
Secretary of Defense, or the designee of the Secretary, in
consultation with the Judge Advocate General of the armed force
of which the appellate military judge is a member, for good
cause consistent with applicable procedures under chapter 47 of
this title (the Uniform Code of Military Justice).
``(c) Prohibition on Consideration of Actions on Commission in
Evaluation of Fitness.--In the preparation of an effectiveness, fitness,
or efficiency report or any other report or document used in whole or in
part for the purpose of determining whether a commissioned officer of
the armed forces is qualified to be advanced in grade, or in determining
the assignment or transfer of any such officer or whether any such
officer should be retained on active duty, no person may--
``(1) consider or evaluate the performance of duty of any
member of a military commission under this chapter; or
``(2) give a less favorable rating or evaluation to any
commissioned officer because of the zeal with which such
officer,
[[Page 123 STAT. 2585]]
in acting as counsel, represented any accused before a military
commission under this chapter.
``Sec. 949c. Duties of trial counsel and defense counsel
``(a) Trial Counsel.--The trial counsel of a military commission
under this chapter shall prosecute in the name of the United States.
``(b) Defense Counsel.--(1) The accused shall be represented in the
accused's defense before a military commission under this chapter as
provided in this subsection.
``(2) The accused may be represented by military counsel detailed
under section 948k of this title or by military counsel of the accused's
own selection, if reasonably available.
``(3) The accused may be represented by civilian counsel if retained
by the accused, provided that such civilian counsel--
``(A) is a United States citizen;
``(B) is admitted to the practice of law in a State,
district, or possession of the United States, or before a
Federal court;
``(C) has not been the subject of any sanction of
disciplinary action by any court, bar, or other competent
governmental authority for relevant misconduct;
``(D) has been determined to be eligible for access to
information classified at the level Secret or higher; and
``(E) has signed a written agreement to comply with all
applicable regulations or instructions for counsel, including
any rules of court for conduct during the proceedings.
``(4) If the accused is represented by civilian counsel, military
counsel shall act as associate counsel.
``(5) The accused is not entitled to be represented by more than one
military counsel. However, the person authorized under regulations
prescribed under section 948k of this title to detail counsel, in such
person's sole discretion, may detail additional military counsel to
represent the accused.
``(6) Defense counsel may cross-examine each witness for the
prosecution who testifies before a military commission under this
chapter.
``(7) Civilian defense counsel shall protect any classified
information received during the course of representation of the accused
in accordance with all applicable law governing the protection of
classified information, and may not divulge such information to any
person not authorized to receive it.
``Sec. 949d. Sessions
``(a) Sessions Without Presence of Members.--(1) At any time after
the service of charges which have been referred for trial by military
commission under this chapter, the military judge may call the military
commission into session without the presence of the members for the
purpose of--
``(A) hearing and determining motions raising defenses or
objections which are capable of determination without trial of
the issues raised by a plea of not guilty;
``(B) hearing and ruling upon any matter which may be ruled
upon by the military judge under this chapter, whether or not
the matter is appropriate for later consideration or decision by
the members;
``(C) <<NOTE: Regulations.>> if permitted by regulations
prescribed by the Secretary of Defense, receiving the pleas of
the accused; and
[[Page 123 STAT. 2586]]
``(D) performing any other procedural function which may be
performed by the military judge under this chapter or under
rules prescribed pursuant to section 949a of this title and
which does not require the presence of the members.
``(2) <<NOTE: Records.>> Except as provided in subsections (b), (c),
and (d), any proceedings under paragraph (1) shall be conducted in the
presence of the accused, defense counsel, and trial counsel, and shall
be made part of the record.
``(b) Deliberation or Vote of Members.--When the members of a
military commission under this chapter deliberate or vote, only the
members may be present.
``(c) Closure of Proceedings.--(1) The military judge may close to
the public all or part of the proceedings of a military commission under
this chapter.
``(2) The military judge may close to the public all or a portion of
the proceedings under paragraph (1) only upon making a specific finding
that such closure is necessary to--
``(A) protect information the disclosure of which could
reasonably be expected to cause damage to the national security,
including intelligence or law enforcement sources, methods, or
activities; or
``(B) ensure the physical safety of individuals.
``(3) A finding under paragraph (2) may be based upon a
presentation, including a presentation ex parte or in camera, by either
trial counsel or defense counsel.
``(d) Exclusion of Accused From Certain Proceedings.--
The <<NOTE: Determination.>> military judge may exclude the accused from
any portion of a proceeding upon a determination that, after being
warned by the military judge, the accused persists in conduct that
justifies exclusion from the courtroom--
``(1) to ensure the physical safety of individuals; or
``(2) to prevent disruption of the proceedings by the
accused.
``Sec. 949e. Continuances
``The military judge in a military commission under this chapter
may, for reasonable cause, grant a continuance to any party for such
time, and as often, as may appear to be just.
``Sec. 949f. Challenges
``(a) Challenges Authorized.-- <<NOTE: Determination.>> The military
judge and members of a military commission under this chapter may be
challenged by the accused or trial counsel for cause stated to the
military commission. The military judge shall determine the relevance
and validity of challenges for cause, and may not receive a challenge to
more than one person at a time. Challenges by trial counsel shall
ordinarily be presented and decided before those by the accused are
offered.
``(b) Peremptory Challenges.--The accused and trial counsel are each
entitled to one peremptory challenge, but the military judge may not be
challenged except for cause.
``(c) Challenges Against Additional Members.--Whenever additional
members are detailed to a military commission under this chapter, and
after any challenges for cause against such additional members are
presented and decided, the accused and trial counsel are each entitled
to one peremptory challenge against members not previously subject to
peremptory challenge.
[[Page 123 STAT. 2587]]
``Sec. 949g. Oaths
``(a) In General.--(1) Before performing their respective duties in
a military commission under this chapter, military judges, members,
trial counsel, defense counsel, reporters, and interpreters shall take
an oath to perform their duties faithfully.
``(2) <<NOTE: Regulations.>> The form of the oath required by
paragraph (1), the time and place of the taking thereof, the manner of
recording thereof, and whether the oath shall be taken for all cases in
which duties are to be performed or for a particular case, shall be as
provided in regulations prescribed by the Secretary of Defense. The
regulations may provide that--
``(A) an oath to perform faithfully duties as a military
judge, trial counsel, or defense counsel may be taken at any
time by any judge advocate or other person certified to be
qualified or competent for the duty; and
``(B) if such an oath is taken, such oath need not again be
taken at the time the judge advocate or other person is detailed
to that duty.
``(b) Witnesses.--Each witness before a military commission under
this chapter shall be examined on oath.
``(c) Oath Defined.--In this section, the term `oath' includes an
affirmation.
``Sec. 949h. Former jeopardy
``(a) In General.--No person may, without the person's consent, be
tried by a military commission under this chapter a second time for the
same offense.
``(b) Scope of Trial.--No proceeding in which the accused has been
found guilty by military commission under this chapter upon any charge
or specification is a trial in the sense of this section until the
finding of guilty has become final after review of the case has been
fully completed.
``Sec. 949i. Pleas of the accused
``(a) Plea of Not Guilty.--If an accused in a military commission
under this chapter after a plea of guilty sets up matter inconsistent
with the plea, or if it appears that the accused has entered the plea of
guilty through lack of understanding of its meaning and effect, or if
the accused fails or refuses to plead, a plea of not guilty shall be
entered in the record, and the military commission shall proceed as
though the accused had pleaded not guilty.
``(b) Finding of Guilt After Guilty Plea.--With respect to any
charge or specification to which a plea of guilty has been made by the
accused in a military commission under this chapter and accepted by the
military judge, a finding of guilty of the charge or specification may
be entered immediately without a vote. The finding shall constitute the
finding of the military commission unless the plea of guilty is
withdrawn prior to announcement of the sentence, in which event the
proceedings shall continue as though the accused had pleaded not guilty.
``Sec. 949j. Opportunity to obtain witnesses and other evidence
``(a) In General.--(1) <<NOTE: Regulations.>> Defense counsel in a
military commission under this chapter shall have a reasonable
opportunity to obtain witnesses and other evidence as provided in
regulations prescribed by the Secretary of Defense. The opportunity to
obtain witnesses and evidence shall be comparable to the opportunity
available to
[[Page 123 STAT. 2588]]
a criminal defendant in a court of the United States under article III
of the Constitution.
``(2) Process issued in military commissions under this chapter to
compel witnesses to appear and testify and to compel the production of
other evidence--
``(A) shall be similar to that which courts of the United
States having criminal jurisdiction may lawfully issue; and
``(B) shall run to any place where the United States shall
have jurisdiction thereof.
``(b) 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 that
reasonably tends to--
``(A) negate the guilt of the accused of an offense charged;
or
``(B) reduce the degree of guilt of the accused with respect
to an offense charged.
``(2) The trial counsel shall, as soon as practicable, disclose to
the defense the existence of evidence that reasonably tends to impeach
the credibility of a witness whom the government intends to call at
trial.
``(3) The trial counsel shall, as soon as practicable upon a finding
of guilt, disclose to the defense the existence of evidence that is not
subject to paragraph (1) or paragraph (2) but that reasonably may be
viewed as mitigation evidence at sentencing.
``(4) The disclosure obligations under this subsection encompass
evidence that is known or reasonably should be known to any government
officials who participated in the investigation and prosecution of the
case against the defendant.
``Sec. 949k. Defense of lack of mental responsibility
``(a) Affirmative Defense.--It is an affirmative defense in a trial
by military commission under this chapter that, at the time of the
commission of the acts constituting the offense, the accused, as a
result of a severe mental disease or defect, was unable to appreciate
the nature and quality or the wrongfulness of the acts. Mental disease
or defect does not otherwise constitute a defense.
``(b) Burden of Proof.--The accused in a military commission under
this chapter has the burden of proving the defense of lack of mental
responsibility by clear and convincing evidence.
``(c) Findings Following Assertion of Defense.--Whenever lack of
mental responsibility of the accused with respect to an offense is
properly at issue in a military commission under this chapter, the
military judge shall instruct the members as to the defense of lack of
mental responsibility under this section and shall charge the members to
find the accused--
``(1) guilty;
``(2) not guilty; or
``(3) subject to subsection (d), not guilty by reason of
lack of mental responsibility.
``(d) Majority Vote <<NOTE: Determination.>> Required for Finding.--
The accused shall be found not guilty by reason of lack of mental
responsibility under subsection (c)(3) only if a majority of the members
present at the time the vote is taken determines that the defense of
lack of mental responsibility has been established.
[[Page 123 STAT. 2589]]
``Sec. 949l. Voting and rulings
``(a) Vote by Secret Written Ballot.--Voting by members of a
military commission under this chapter on the findings and on the
sentence shall be by secret written ballot.
``(b) Rulings.--(1) The military judge in a military commission
under this chapter shall rule upon all questions of law, including the
admissibility of evidence and all interlocutory questions arising during
the proceedings.
``(2) Any ruling made by the military judge upon a question of law
or an interlocutory question (other than the factual issue of mental
responsibility of the accused) is conclusive and constitutes the ruling
of the military commission. However, a military judge may change such a
ruling at any time during the trial.
``(c) Instructions Prior to Vote.--Before a vote is taken of the
findings of a military commission under this chapter, the military judge
shall, in the presence of the accused and counsel, instruct the members
as to the elements of the offense and charge the members--
``(1) that the accused must be presumed to be innocent until
the accused's 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 the accused must be
acquitted;
``(3) that, if there is reasonable doubt as to the degree of
guilt, the finding must be in a lower degree as to which there
is no reasonable doubt; and
``(4) that the burden of proof to establish the guilt of the
accused beyond a reasonable doubt is upon the United States.
``Sec. 949m. Number of votes required
``(a) Conviction.--No person may be convicted by a military
commission under this chapter of any offense, except as provided in
section 949i(b) of this title or by concurrence of two-thirds of the
members present at the time the vote is taken.
``(b) Sentences.--(1) <<NOTE: Determination.>> Except as provided in
paragraphs (2) and (3), sentences shall be determined by a military
commission by the concurrence of two-thirds of the members present at
the time the vote is taken.
``(2) No person may be sentenced to death by a military commission,
except insofar as--
``(A) the penalty of death has been expressly authorized
under this chapter, chapter 47 of this title, or the law of war
for an offense of which the accused has been found guilty;
``(B) trial counsel expressly sought the penalty of death by
filing an appropriate notice in advance of trial;
``(C) the accused was convicted of the offense by the
concurrence of all the members present at the time the vote is
taken; and
``(D) all members present at the time the vote was taken
concurred in the sentence of death.
``(3) No person may be sentenced to life imprisonment, or to
confinement for more than 10 years, by a military commission under this
chapter except by the concurrence of three-fourths of the members
present at the time the vote is taken.
[[Page 123 STAT. 2590]]
``(c) Number of Members Required for Penalty of Death.--(1) Except
as provided in paragraph (2), in a case in which the penalty of death is
sought, the number of members of the military commission under this
chapter shall be not less than 12 members.
``(2) In any case described in paragraph (1) in which 12 members are
not reasonably available for a military commission because of physical
conditions or military exigencies, the convening authority shall specify
a lesser number of members for the military commission (but not fewer
than 9 members), and the military commission may be assembled, and the
trial held, with not less than the number of members so specified. In
any such case, the convening authority shall make a detailed written
statement, to be appended to the record, stating why a greater number of
members were not reasonably available.
``Sec. 949n. Military commission to announce action
``A military commission under this chapter shall announce its
findings and sentence to the parties as soon as determined.
``Sec. 949o. Record of trial
``(a) Record; Authentication.--Each military commission under this
chapter shall keep a separate, verbatim, record of the proceedings in
each case brought before it, and the record shall be authenticated by
the signature of the military judge. If the record cannot be
authenticated by the military judge by reason of death, disability, or
absence, it shall be authenticated by the signature of the trial counsel
or by a member of the commission if the trial counsel is unable to
authenticate it by reason of death, disability, or
absence. <<NOTE: Regulations.>> Where appropriate, and as provided in
regulations prescribed by the Secretary of Defense, the record of a
military commission under this chapter may contain a classified annex.
``(b) Complete Record Required.--A complete record of the
proceedings and testimony shall be prepared in every military commission
under this chapter.
``(c) Provision of Copy to Accused.--A copy of the record of the
proceedings of the military commission under this chapter shall be given
the accused as soon as it is authenticated. If the record contains
classified information, or a classified annex, the accused shall receive
a redacted version of the record consistent with the requirements of
subchapter V of this chapter. Defense counsel shall have access to the
unredacted record, as provided in regulations prescribed by the
Secretary of Defense.
``SUBCHAPTER V--CLASSIFIED INFORMATION PROCEDURES
``Sec.
``949p-1. Protection of classified information: applicability of
subchapter.
``949p-2. Pretrial conference.
``949p-3. Protective orders.
``949p-4. Discovery of, and access to, classified information by the
accused.
``949p-5. Notice by accused of intention to disclose classified
information.
``949p-6. Procedure for cases involving classified information.
``949p-7. Introduction of classified information into evidence.
``Sec. 949p-1. Protection of classified information: applicability
of subchapter
``(a) Protection of Classified Information.--Classified information
shall be protected and is privileged from disclosure if disclosure would
be detrimental to the national security. Under
[[Page 123 STAT. 2591]]
no circumstances may a military judge order the release of classified
information to any person not authorized to receive such information.
``(b) Access to Evidence.--Any information admitted into evidence
pursuant to any rule, procedure, or order by the military judge shall be
provided to the accused.
``(c) Declassification.--Trial counsel shall work with the original
classification authorities for evidence that may be used at trial to
ensure that such evidence is declassified to the maximum extent
possible, consistent with the requirements of national security. A
decision not to declassify evidence under this section shall not be
subject to review by a military commission or upon appeal.
``(d) Construction of Provisions.--The judicial construction of the
Classified Information Procedures Act (18 U.S.C. App.) shall be
authoritative in the interpretation of this subchapter, except to the
extent that such construction is inconsistent with the specific
requirements of this chapter.
``Sec. 949p-2. Pretrial conference
``(a) Motion.--At any time after service of charges, any party may
move for a pretrial conference to consider matters relating to
classified information that may arise in connection with the
prosecution.
``(b) Conference.--Following a motion under subsection (a), or sua
sponte, the military judge shall promptly hold a pretrial conference.
Upon request by either party, the court shall hold such conference ex
parte to the extent necessary to protect classified information from
disclosure, in accordance with the practice of the Federal courts under
the Classified Information Procedures Act (18 U.S.C. App.).
``(c) Matters To Be Established at Pretrial Conference.--
``(1) Timing of subsequent actions.--At the pretrial
conference, the military judge shall establish the timing of--
``(A) requests for discovery;
``(B) the provision of notice required by section
949p-5 of this title; and
``(C) the initiation of the procedure established by
section 949p-6 of this title.
``(2) Other matters.--At the pretrial conference, the
military judge may also consider any matter--
``(A) which relates to classified information; or
``(B) which may promote a fair and expeditious
trial.
``(d) Effect of Admissions by Accused at Pretrial Conference.--No
admission made by the accused or by any counsel for the accused at a
pretrial conference under this section may be used against the accused
unless the admission is in writing and is signed by the accused and by
the counsel for the accused.
``Sec. 949p-3. Protective orders
``Upon motion of the trial counsel, the military judge shall issue
an order to protect against the disclosure of any classified information
that has been disclosed by the United States to any accused in any
military commission under this chapter or that has otherwise been
provided to, or obtained by, any such accused in any such military
commission.
[[Page 123 STAT. 2592]]
``Sec. 949p-4. Discovery of, and access to, classified information
by the accused
``(a) Limitations on Discovery or Access by the Accused.--
``(1) Declarations by the united states of damage to
national security.--In any case before a military commission in
which the United States seeks to delete, withhold, or otherwise
obtain other relief with respect to the discovery of or access
to any classified information, the trial counsel shall submit a
declaration invoking the United States' classified information
privilege and setting forth the damage to the national security
that the discovery of or access to such information reasonably
could be expected to cause. The declaration shall be signed by a
knowledgeable United States official possessing authority to
classify information.
``(2) Standard for authorization of discovery or access.--
Upon the submission of a declaration under paragraph (1), the
military judge may not authorize the discovery of or access to
such classified information unless the military judge determines
that such classified information would be noncumulative,
relevant, and helpful to a legally cognizable defense, rebuttal
of the prosecution's case, or to sentencing, in accordance with
standards generally applicable to discovery of or access to
classified information in Federal criminal cases. If the
discovery of or access to such classified information is
authorized, it shall be addressed in accordance with the
requirements of subsection (b).
``(b) Discovery of Classified Information.--
``(1) Substitutions and other relief.--The military judge,
in assessing the accused's discovery of or access to classified
information under this section, may authorize the United
States--
``(A) to delete or withhold specified items of
classified information;
``(B) to substitute a summary for classified
information; or
``(C) to substitute a statement admitting relevant
facts that the classified information or material would
tend to prove.
``(2) Ex parte presentations.--The military judge shall
permit the trial counsel to make a request for an authorization
under paragraph (1) in the form of an ex parte presentation to
the extent necessary to protect classified information, in
accordance with the practice of the Federal courts under the
Classified Information Procedures Act (18 U.S.C. App.). If the
military judge enters an order granting relief following such an
ex parte showing, the entire presentation (including the text of
any written submission, verbatim transcript of the ex parte oral
conference or hearing, and any exhibits received by the court as
part of the ex parte presentation) shall be sealed and preserved
in the records of the military commission to be made available
to the appellate court in the event of an appeal.
``(3) Action by military judge.--The military judge shall
grant the request of the trial counsel to substitute a summary
or to substitute a statement admitting relevant facts, or to
provide other relief in accordance with paragraph (1), if the
military judge finds that the summary, statement, or other
[[Page 123 STAT. 2593]]
relief would provide the accused with substantially the same
ability to make a defense as would discovery of or access to the
specific classified information.
``(c) Reconsideration.--An order of a military judge authorizing a
request of the trial counsel to substitute, summarize, withhold, or
prevent access to classified information under this section is not
subject to a motion for reconsideration by the accused, if such order
was entered pursuant to an ex parte showing under this section.
``Sec. 949p-5. Notice by accused of intention to disclose
classified information
``(a) Notice by Accused.--
``(1) Notification of trial counsel and military judge.--
<<NOTE: Deadline.>> If an accused reasonably expects to
disclose, or to cause the disclosure of, classified information
in any manner in connection with any trial or pretrial
proceeding involving the prosecution of such accused, the
accused shall, within the time specified by the military judge
or, where no time is specified, within 30 days before trial,
notify the trial counsel and the military judge in writing. Such
notice shall include a brief description of the classified
information. Whenever the accused learns of additional
classified information the accused reasonably expects to
disclose, or to cause the disclosure of, at any such proceeding,
the accused shall notify trial counsel and the military judge in
writing as soon as possible thereafter and shall include a brief
description of the classified information.
``(2) Limitation on disclosure by accused.--No accused shall
disclose, or cause the disclosure of, any information known or
believed to be classified in connection with a trial or pretrial
proceeding until--
``(A) notice has been given under paragraph (1); and
``(B) the United States has been afforded a
reasonable opportunity to seek a determination pursuant
to the procedure set forth in section 949p-6 of this
title and the time for the United States to appeal such
determination under section 950d of this title has
expired or any appeal under that section by the United
States is decided.
``(b) Failure To Comply.--If the accused fails to comply with the
requirements of subsection (a), the military judge--
``(1) may preclude disclosure of any classified information
not made the subject of notification; and
``(2) may prohibit the examination by the accused of any
witness with respect to any such information.
``Sec. 949p-6. Procedure for cases involving classified
information
``(a) Motion for Hearing.--
``(1) Request for hearing.--Within the time specified by the
military judge for the filing of a motion under this section,
either party may request the military judge to conduct a hearing
to make all determinations concerning the use, relevance, or
admissibility of classified information that would otherwise be
made during the trial or pretrial proceeding.
``(2) Conduct of hearing.--Upon a request by either party
under paragraph (1), the military judge shall conduct such
[[Page 123 STAT. 2594]]
a hearing and shall rule prior to conducting any further
proceedings.
``(3) In camera hearing upon declaration to court by
appropriate official of risk of disclosure of classified
information.--Any hearing held pursuant to this subsection (or
any portion of such hearing specified in the request of a
knowledgeable United States official) shall be held in camera if
a knowledgeable United States official possessing authority to
classify information submits to the military judge a declaration
that a public proceeding may result in the disclosure of
classified information. Classified information is not subject to
disclosure under this section unless the information is relevant
and necessary to an element of the offense or a legally
cognizable defense and is otherwise admissible in evidence.
``(4) Military judge to make determinations in writing.--As
to each item of classified information, the military judge shall
set forth in writing the basis for the determination.
``(b) Notice and Use of Classified Information by the Government.--
``(1) Notice to accused.--Before any hearing is conducted
pursuant to a request by the trial counsel under subsection (a),
trial counsel shall provide the accused with notice of the
classified information that is at issue. Such notice shall
identify the specific classified information at issue whenever
that information previously has been made available to the
accused by the United States. When the United States has not
previously made the information available to the accused in
connection with the case the information may be described by
generic category, in such forms as the military judge may
approve, rather than by identification of the specific
information of concern to the United States.
``(2) Order by military judge upon request of accused.--
Whenever the trial counsel requests a hearing under subsection
(a), the military judge, upon request of the accused, may order
the trial counsel to provide the accused, prior to trial, such
details as to the portion of the charge or specification at
issue in the hearing as are needed to give the accused fair
notice to prepare for the hearing.
``(c) Substitutions.--
``(1) In camera pretrial hearing.--Upon request of the trial
counsel pursuant to the Military Commission Rules of Evidence,
and in accordance with the security procedures established by
the military judge, the military judge shall conduct a
classified in camera pretrial hearing concerning the
admissibility of classified information.
``(2) Protection of sources, methods, and activities by
which evidence acquired.--When trial counsel seeks to introduce
evidence before a military commission under this chapter and the
Executive branch has classified the sources, methods, or
activities by which the United States acquired the evidence, the
military judge shall permit trial counsel to introduce the
evidence, including a substituted evidentiary foundation
pursuant to the procedures described in subsection (d), while
protecting from disclosure information identifying those
sources, methods, or activities, if--
``(A) the evidence is otherwise admissible; and
``(B) the military judge finds that--
[[Page 123 STAT. 2595]]
``(i) the evidence is reliable; and
``(ii) the redaction is consistent with
affording the accused a fair trial.
``(d) Alternative Procedure for Disclosure of Classified
Information.--
``(1) Motion by the united states.--Upon any determination
by the military judge authorizing the disclosure of specific
classified information under the procedures established by this
section, the trial counsel may move that, in lieu of the
disclosure of such specific classified information, the military
judge order--
``(A) the substitution for such classified
information of a statement admitting relevant facts that
the specific classified information would tend to prove;
``(B) the substitution for such classified
information of a summary of the specific classified
information; or
``(C) any other procedure or redaction limiting the
disclosure of specific classified information.
``(2) Action on motion.--The military judge shall grant such
a motion of the trial counsel if the military judge finds that
the statement, summary, or other procedure or redaction will
provide the defendant with substantially the same ability to
make his defense as would disclosure of the specific classified
information.
``(3) Hearing on motion.--The military judge shall hold a
hearing on any motion under this subsection. Any such hearing
shall be held in camera at the request of a knowledgeable United
States official possessing authority to classify information.
``(4) Submission of statement of damage to national security
if disclosure ordered.-- <<NOTE: Certification.>> The trial
counsel may, in connection with a motion under paragraph (1),
submit to the military judge a declaration signed by a
knowledgeable United States official possessing authority to
classify information certifying that disclosure of classified
information would cause identifiable damage to the national
security of the United States and explaining the basis for the
classification of such information. If so requested by the trial
counsel, the military judge shall examine such declaration
during an ex parte presentation.
``(e) Sealing of Records of in Camera Hearings.--If at the close of
an in camera hearing under this section (or any portion of a hearing
under this section that is held in camera), the military judge
determines that the classified information at issue may not be disclosed
or elicited at the trial or pretrial proceeding, the record of such in
camera hearing shall be sealed and preserved for use in the event of an
appeal. The accused may seek reconsideration of the military judge's
determination prior to or during trial.
``(f) Prohibition on Disclosure of Classified Information by the
Accused; Relief for Accused When the United States Opposes Disclosure.--
``(1) Order to prevent disclosure by accused.--Whenever the
military judge denies a motion by the trial counsel that the
judge issue an order under subsection (a), (c), or (d) and the
trial counsel files with the military judge a declaration signed
by a knowledgeable United States official possessing authority
to classify information objecting to disclosure of the
classified information at issue, the military judge shall order
[[Page 123 STAT. 2596]]
that the accused not disclose or cause the disclosure of such
information.
``(2) Result of order under paragraph (1).--Whenever an
accused is prevented by an order under paragraph (1) from
disclosing or causing the disclosure of classified information,
the military judge shall dismiss the case, except that, when the
military judge determines that the interests of justice would
not be served by dismissal of the case, the military judge shall
order such other action, in lieu of dismissing the charge or
specification, as the military judge determines is appropriate.
Such action may include, but need not be limited to, the
following:
``(A) Dismissing specified charges or
specifications.
``(B) Finding against the United States on any issue
as to which the excluded classified information relates.
``(C) Striking or precluding all or part of the
testimony of a witness.
``(3) Time for the united states to seek interlocutory
appeal.--An order under paragraph (2) shall not take effect
until the military judge has afforded the United States--
``(A) an opportunity to appeal such order under
section 950d of this title; and
``(B) an opportunity thereafter to withdraw its
objection to the disclosure of the classified
information at issue.
``(g) Reciprocity.--
``(1) Disclosure of rebuttal information.--Whenever the
military judge determines that classified information may be
disclosed in connection with a trial or pretrial proceeding, the
military judge shall, unless the interests of fairness do not so
require, order the United States to provide the accused with the
information it expects to use to rebut the classified
information. The military judge may place the United States
under a continuing duty to disclose such rebuttal information.
``(2) Sanction for failure to comply.--If the United States
fails to comply with its obligation under this subsection, the
military judge--
``(A) may exclude any evidence not made the subject
of a required disclosure; and
``(B) may prohibit the examination by the United
States of any witness with respect to such information.
``Sec. 949p-7. Introduction of classified information into
evidence
``(a) Preservation of Classification Status.--Writings, recordings,
and photographs containing classified information may be admitted into
evidence in proceedings of military commissions under this chapter
without change in their classification status.
``(b) Precautions by Military Judges.--
``(1) Precautions in admitting classified information into
evidence.--The military judge in a trial by military commission,
in order to prevent unnecessary disclosure of classified
information, may order admission into evidence of only part of a
writing, recording, or photograph, or may order admission into
evidence of the whole writing, recording, or photograph with
excision of some or all of the classified information contained
therein, unless the whole ought in fairness be considered.
[[Page 123 STAT. 2597]]
``(2) Classified information kept under seal.--The military
judge shall allow classified information offered or accepted
into evidence to remain under seal during the trial, even if
such evidence is disclosed in the military commission, and may,
upon motion by the United States, seal exhibits containing
classified information for any period after trial as necessary
to prevent a disclosure of classified information when a
knowledgeable United States official possessing authority to
classify information submits to the military judge a declaration
setting forth the damage to the national security that the
disclosure of such information reasonably could be expected to
cause.
``(c) Taking of Testimony.--
``(1) Objection by trial counsel.--During the examination of
a witness, trial counsel may object to any question or line of
inquiry that may require the witness to disclose classified
information not previously found to be admissible.
``(2) Action by military judge.--Following an objection
under paragraph (1), the military judge shall take such suitable
action to determine whether the response is admissible as will
safeguard against the compromise of any classified information.
Such action may include requiring trial counsel to provide the
military judge with a proffer of the witness' response to the
question or line of inquiry and requiring the accused to provide
the military judge with a proffer of the nature of the
information sought to be elicited by the accused. Upon request,
the military judge may accept an ex parte proffer by trial
counsel to the extent necessary to protect classified
information from disclosure, in accordance with the practice of
the Federal courts under the Classified Information Procedures
Act (18 U.S.C. App.).
``(d) Disclosure at Trial of Certain Statements Previously Made by a
Witness.--
``(1) Motion for production of statements in possession of
the united states.--After a witness called by the trial counsel
has testified on direct examination, the military judge, on
motion of the accused, may order production of statements of the
witness in the possession of the United States which relate to
the subject matter as to which the witness has testified. This
paragraph does not preclude discovery or assertion of a
privilege otherwise authorized.
``(2) Invocation of privilege by the united states.--If the
United States invokes a privilege, the trial counsel may provide
the prior statements of the witness to the military judge during
an ex parte presentation to the extent necessary to protect
classified information from disclosure, in accordance with the
practice of the Federal courts under the Classified Information
Procedures Act (18 U.S.C. App.).
``(3) Action by military judge on motion.--If the military
judge finds that disclosure of any portion of the statement
identified by the United States as classified would be
detrimental to the national security in the degree to warrant
classification under the applicable Executive Order, statute, or
regulation, that such portion of the statement is consistent
with the testimony of the witness, and that the disclosure of
such portion is not necessary to afford the accused a fair
trial, the military judge shall excise that portion from the
statement.
[[Page 123 STAT. 2598]]
If the military judge finds that such portion of the statement
is inconsistent with the testimony of the witness or that its
disclosure is necessary to afford the accused a fair trial, the
military judge, shall, upon the request of the trial counsel,
review alternatives to disclosure in accordance with section
949p-6(d) of this title.
``SUBCHAPTER VI--SENTENCES
``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.
``Sec. 949s. Cruel or unusual punishments prohibited
``Punishment by flogging, or by branding, marking, or tattooing on
the body, or any other cruel or unusual punishment, may not be adjudged
by a military commission under this chapter or inflicted under this
chapter upon any person subject to this chapter. The use of irons,
single or double, except for the purpose of safe custody, is prohibited
under this chapter.
``Sec. 949t. Maximum limits
``The punishment which a military commission under this chapter may
direct for an offense may not exceed such limits as the President or
Secretary of Defense may prescribe for that offense.
``Sec. 949u. Execution of confinement
``(a) In General.-- <<NOTE: Regulations.>> Under such regulations as
the Secretary of Defense may prescribe, a sentence of confinement
adjudged by a military commission under this chapter may be carried into
execution by confinement--
``(1) in any place of confinement under the control of any
of the armed forces; or
``(2) in any penal or correctional institution under the
control of the United States or its allies, or which the United
States may be allowed to use.
``(b) Treatment During Confinement by Other Than the Armed Forces.--
Persons confined under subsection (a)(2) in a penal or correctional
institution not under the control of an armed force are subject to the
same discipline and treatment as persons confined or committed by the
courts of the United States or of the State, District of Columbia, or
place in which the institution is situated.
``SUBCHAPTER VII--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY
COMMISSIONS
``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Appellate referral; waiver or withdrawal of appeal.
``950d. Interlocutory appeals by the United States.
``950e. Rehearings.
``950f. Review by United States Court of Military Commission Review.
``950g. Review by United States Court of Court of Appeals for the
District of Columbia Circuit; writ of certiorari to Supreme
Court.
``950h. Appellate counsel.
``950i. Execution of sentence; suspension of sentence.
``950j. Finality of proceedings, findings, and sentences.
[[Page 123 STAT. 2599]]
``Sec. 950a. Error of law; lesser included offense
``(a) Error of Law.--A finding or sentence of a military commission
under this chapter may not be held incorrect on the ground of an error
of law unless the error materially prejudices the substantial rights of
the accused.
``(b) Lesser Included Offense.--Any reviewing authority with the
power to approve or affirm a finding of guilty by a military commission
under this chapter may approve or affirm, instead, so much of the
finding as includes a lesser included offense.
``Sec. 950b. Review by the convening authority
``(a) Notice to Convening Authority of Findings and Sentence.--
<<NOTE: Reports.>> The findings and sentence of a military commission
under this chapter shall be reported in writing promptly to the
convening authority after the announcement of the sentence.
``(b) Submittal of Matters by Accused to Convening Authority.--(1)
The accused may submit to the convening authority matters for
consideration by the convening authority with respect to the findings
and the sentence of the military commission under this chapter.
``(2)(A) <<NOTE: Deadline.>> Except as provided in subparagraph (B),
a submittal under paragraph (1) shall be made in writing within 20 days
after the accused has been give an authenticated record of trial under
section 949o(c) of this title.
``(B) If the accused shows that additional time is required for the
accused to make a submittal under paragraph (1), the convening authority
may, for good cause, extend the applicable period under subparagraph (A)
for not more than an additional 20 days.
``(3) The accused may waive the accused's right to make a submittal
to the convening authority under paragraph (1). Such a waiver shall be
made in writing, and may not be revoked. For the purposes of subsection
(c)(2), the time within which the accused may make a submittal under
this subsection shall be deemed to have expired upon the submittal of a
waiver under this paragraph to the convening authority.
``(c) Action by Convening Authority.--(1) The authority under this
subsection to modify the findings and sentence of a military commission
under this chapter is a matter of the sole discretion and prerogative of
the convening authority.
``(2) The convening authority is not required to take action on the
findings of a military commission under this chapter. If the convening
authority takes action on the findings, the convening authority may, in
the sole discretion of the convening authority, only--
``(A) dismiss any charge or specification by setting aside a
finding of guilty thereto; or
``(B) change a finding of guilty to a charge to a finding of
guilty to an offense that is a lesser included offense of the
offense stated in the charge.
``(3)(A) The convening authority shall take action on the sentence
of a military commission under this chapter.
``(B) <<NOTE: Regulations.>> Subject to regulations prescribed by
the Secretary of Defense, action under this paragraph may be taken only
after consideration of any matters submitted by the accused under
subsection (b) or after the time for submitting such matters expires,
whichever is earlier.
[[Page 123 STAT. 2600]]
``(C) In taking action under this paragraph, the convening authority
may, in the sole discretion of the convening authority, approve,
disapprove, commute, or suspend the sentence in whole or in part. The
convening authority may not increase a sentence beyond that which is
found by the military commission.
``(4) The convening authority shall serve on the accused or on
defense counsel notice of any action taken by the convening authority
under this subsection.
``(d) Order of Revision or Rehearing.--(1) Subject to paragraphs (2)
and (3), the convening authority of a military commission under this
chapter may, in the sole discretion of the convening authority, order a
proceeding in revision or a rehearing.
``(2)(A) Except as provided in subparagraph (B), a proceeding in
revision may be ordered by the convening authority if--
``(i) there is an apparent error or omission in the record;
or
``(ii) the record shows improper or inconsistent action by
the military commission with respect to the findings or sentence
that can be rectified without material prejudice to the
substantial rights of the accused.
``(B) In no case may a proceeding in revision--
``(i) reconsider a finding of not guilty of a specification
or a ruling which amounts to a finding of not guilty;
``(ii) reconsider a finding of not guilty of any charge,
unless there has been a finding of guilty under a specification
laid under that charge, which sufficiently alleges a violation;
or
``(iii) increase the severity of the sentence unless the
sentence prescribed for the offense is mandatory.
``(3) A rehearing may be ordered by the convening authority if the
convening authority disapproves the findings and sentence and states the
reasons for disapproval of the findings. If the convening authority
disapproves the finding and sentence and does not order a rehearing, the
convening authority shall dismiss the charges. A rehearing as to the
findings may not be ordered by the convening authority when there is a
lack of sufficient evidence in the record to support the findings. A
rehearing as to the sentence may be ordered by the convening authority
if the convening authority disapproves the sentence.
``Sec. 950c. Appellate referral; waiver or withdrawal of appeal
``(a) Automatic Referral for Appellate Review.--Except as provided
in subsection (b), in each case in which the final decision of a
military commission under this chapter (as approved by the convening
authority) includes a finding of guilty, the convening authority shall
refer the case to the United States Court of Military Commission
Review. <<NOTE: Regulations.>> Any such referral shall be made in
accordance with procedures prescribed under regulations of the
Secretary.
``(b) Waiver of Right of Review.--(1) Except in a case in which the
sentence as approved under section 950b of this title extends to death,
an accused may file with the convening authority a statement expressly
waiving the right of the accused to appellate review by the United
States Court of Military Commission Review under section 950f of this
title of the final decision of the military commission under this
chapter.
``(2) A waiver under paragraph (1) shall be signed by both the
accused and a defense counsel.
[[Page 123 STAT. 2601]]
``(3) <<NOTE: Deadline.>> A waiver under paragraph (1) must be
filed, if at all, within 10 days after notice of the action is served on
the accused or on defense counsel under section 950b(c)(4) of this
title. The convening authority, for good cause, may extend the period
for such filing by not more than 30 days.
``(c) Withdrawal of Appeal.--Except in a case in which the sentence
as approved under section 950b of this title extends to death, the
accused may withdraw an appeal at any time.
``(d) Effect of Waiver or Withdrawal.--A waiver of the right to
appellate review or the withdrawal of an appeal under this section bars
review under section 950f of this title.
``Sec. 950d. Interlocutory appeals by the United States
``(a) Interlocutory Appeal.--Except as provided in subsection (b),
in a trial by military commission under this chapter, the United States
may take an interlocutory appeal to the United States Court of Military
Commission Review of any order or ruling of the military judge--
``(1) that terminates proceedings of the military commission
with respect to a charge or specification;
``(2) that excludes evidence that is substantial proof of a
fact material in the proceeding;
``(3) that relates to a matter under subsection (c) or (d)
of section 949d of this title; or
``(4) that, with respect to classified information--
``(A) authorizes the disclosure of such information;
``(B) imposes sanctions for nondisclosure of such
information; or
``(C) refuses a protective order sought by the
United States to prevent the disclosure of such
information.
``(b) Limitation.--The United States may not appeal under subsection
(a) 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.
``(c) Scope of Appeal Right With Respect to Classified
Information.--The United States has the right to appeal under paragraph
(4) of subsection (a) whenever the military judge enters an order or
ruling that would require the disclosure of classified information,
without regard to whether the order or ruling appealed from was entered
under this chapter, another provision of law, a rule, or otherwise. Any
such appeal may embrace any preceding order, ruling, or reasoning
constituting the basis of the order or ruling that would authorize such
disclosure.
``(d) Timing and Action on Interlocutory Appeals Relating to
Classified Information.--
``(1) Appeal to be expedited.--An appeal taken pursuant to
paragraph (4) of subsection (a) shall be expedited by the United
States Court of Military Commission Review.
``(2) Appeals before trial.-- <<NOTE: Deadline.>> If such an
appeal is taken before trial, the appeal shall be taken within
10 days after the order or ruling from which the appeal is made
and the trial shall not commence until the appeal is decided.
``(3) Appeals during trial.--If such an appeal is taken
during trial, the military judge shall adjourn the trial until
the appeal is decided, and the court of appeals--
[[Page 123 STAT. 2602]]
``(A) <<NOTE: Deadline.>> shall hear argument on
such appeal within 4 days of the adjournment of the
trial (excluding weekends and holidays);
``(B) may dispense with written briefs other than
the supporting materials previously submitted to the
military judge;
``(C) shall render its decision within four days of
argument on appeal (excluding weekends and holidays);
and
``(D) may dispense with the issuance of a written
opinion in rendering its decision.
``(e) Notice and Timing of Other Appeals.-- <<NOTE: Deadline.>> The
United States shall take an appeal of an order or ruling under
subsection (a), other than an appeal under paragraph (4) of that
subsection, by filing a notice of appeal with the military judge within
5 days after the date of the order or ruling.
``(f) Method of Appeal.-- <<NOTE: Regulations.>> An appeal under
this section shall be forwarded, by means specified in regulations
prescribed by the Secretary of Defense, directly to the United States
Court of Military Commission Review.
``(g) Appeals Court To Act Only With Respect to Matter of Law.--In
ruling on an appeal under paragraph (1), (2), or (3) of subsection (a),
the appeals court may act only with respect to matters of law.
``(h) Subsequent Appeal Rights of Accused Not Affected.--An appeal
under paragraph (4) of subsection (a), and a decision on such appeal,
shall not affect the right of the accused, in a subsequent appeal from a
judgment of conviction, to claim as error reversal by the military judge
on remand of a ruling appealed from during trial.
``Sec. 950e. Rehearings
``(a) Composition of Military Commission for Rehearing.--Each
rehearing under this chapter shall take place before a military
commission under this chapter composed of members who were not members
of the military commission which first heard the case.
``(b) Scope of Rehearing.--(1) Upon a rehearing--
``(A) the accused may not be tried for any offense of which
the accused was found not guilty by the first military
commission; and
``(B) no sentence in excess of or more than the original
sentence may be imposed unless--
``(i) the sentence is based upon a finding of guilty
of an offense not considered upon the merits in the
original proceedings; or
``(ii) the sentence prescribed for the offense is
mandatory.
``(2) Upon a rehearing, if the sentence approved after the first
military commission was in accordance with a pretrial agreement and the
accused at the rehearing changes his plea with respect to the charges or
specifications upon which the pretrial agreement was based, or otherwise
does not comply with pretrial agreement, the sentence as to those
charges or specifications may include any punishment not in excess of
that lawfully adjudged at the first military commission.
[[Page 123 STAT. 2603]]
``Sec. 950f. Review by United States Court of Military Commission
Review
``(a) Establishment.--There is a court of record to be known as the
`United States Court of Military Commission Review' (in this section
referred to as the `Court'). The Court shall consist of one or more
panels, each composed of not less than three appellate military judges.
For the purpose of reviewing decisions of military commissions under
this chapter, the Court may sit in panels or as a whole, in accordance
with rules prescribed by the Secretary of Defense.
``(b) Judges.--(1) Judges on the Court shall be assigned or
appointed in a manner consistent with the provisions of this subsection.
``(2) The Secretary of Defense may assign persons who are appellate
military judges to be judges on the Court. Any judge so assigned shall
be a commissioned officer of the armed forces, and shall meet the
qualifications for military judges prescribed by section 948j(b) of this
title.
``(3) The President may appoint, by and with the advice and consent
of the Senate, additional judges to the United States Court of Military
Commission Review.
``(4) No person may serve as a judge on the Court in any case in
which that person acted as a military judge, counsel, or reviewing
official.
``(c) Cases To Be Reviewed.-- <<NOTE: Regulations.>> The Court
shall, in accordance with procedures prescribed under regulations of the
Secretary, review the record in each case that is referred to the Court
by the convening authority under section 950c of this title with respect
to any matter properly raised by the accused.
``(d) Standard and Scope of Review.--In a case reviewed by the Court
under this section, the Court may act only with respect to the findings
and sentence as approved by the convening authority. The Court may
affirm only such findings of guilty, and the sentence or such part or
amount of the sentence, as the Court finds correct in law and fact and
determines, on the basis of the entire record, should be approved. In
considering the record, the Court may weigh the evidence, judge the
credibility of witnesses, and determine controverted questions of fact,
recognizing that the military commission saw and heard the witnesses.
``(e) Rehearings.--If the Court sets aside the findings or sentence,
the Court may, except where the setting aside is based on lack of
sufficient evidence in the record to support the findings, order a
rehearing. If the Court sets aside the findings or sentence and does not
order a rehearing, the Court shall order that the charges be dismissed.
``Sec. 950g. Review by United States Court of Appeals for the
District of Columbia Circuit; writ of certiorari
to Supreme Court
``(a) Exclusive Appellate Jurisdiction.--Except as provided in
subsection (b), the United States Court of Appeals for the District of
Columbia Circuit shall have exclusive jurisdiction to determine the
validity of a final judgment rendered by a military commission (as
approved by the convening authority and, where applicable, the United
States Court of Military Commission Review) under this chapter.
[[Page 123 STAT. 2604]]
``(b) Exhaustion of Other Appeals.--The United States Court of
Appeals for the District of Columbia Circuit may not review a final
judgment described in subsection (a) until all other appeals under this
chapter have been waived or exhausted.
``(c) Time for Seeking Review.-- <<NOTE: Deadline. Notice.>> A
petition for review by the United States Court of Appeals for the
District of Columbia Circuit must be filed by the accused in the Court
of Appeals not later than 20 days after the date on which--
``(1) written notice of the final decision of the United
States Court of Military Commission Review is served on the
accused or on defense counsel; or
``(2) the accused submits, in the form prescribed by section
950c of this title, a written notice waiving the right of the
accused to review by the United States Court of Military
Commission Review.
``(d) Scope and Nature of Review.--The United States Court of
Appeals for the District of Columbia Circuit may act under this section
only with respect to the findings and sentence as approved by the
convening authority and as affirmed or set aside as incorrect in law by
the United States Court of Military Commission Review, and shall take
action only with respect to matters of law, including the sufficiency of
the evidence to support the verdict.
``(e) Review by Supreme Court.--The Supreme Court may review by writ
of certiorari pursuant to section 1254 of title 28 the final judgment of
the United States Court of Appeals for the District of Columbia Circuit
under this section.
``Sec. 950h. Appellate counsel
``(a) Appointment.-- <<NOTE: Regulations. Procedures.>> The
Secretary of Defense shall, by regulation, establish procedures for the
appointment of appellate counsel for the United States and for the
accused in military commissions under this chapter. Appellate counsel
shall meet the qualifications of counsel for appearing before military
commissions under this chapter.
``(b) Representation of United States.--Appellate counsel appointed
under subsection (a)--
``(1) shall represent the United States in any appeal or
review proceeding under this chapter before the United States
Court of Military Commission Review; and
``(2) may, when requested to do so by the Attorney General
in a case arising under this chapter, represent the United
States before the United States Court of Appeals for the
District of Columbia Circuit or the Supreme Court.
``(c) Representation of Accused.--The accused shall be represented
by appellate counsel appointed under subsection (a) before the United
States Court of Military Commission Review, the United States Court of
Appeals for the District of Columbia Circuit, and the Supreme Court, and
by civilian counsel if retained by the accused. Any such civilian
counsel shall meet the qualifications under paragraph (3) of section
949c(b) of this title for civilian counsel appearing before military
commissions under this chapter and shall be subject to the requirements
of paragraph (7) of that section.
[[Page 123 STAT. 2605]]
``Sec. 950i. Execution of sentence; suspension of sentence
``(a) In General.--The Secretary of Defense is authorized to carry
out a sentence imposed by a military commission under this chapter in
accordance with such procedures as the Secretary may prescribe.
``(b) Execution of Sentence of Death Only Upon Approval by the
President.--If the sentence of a military commission under this chapter
extends to death, that part of the sentence providing for death may not
be executed until approved by the President. In such a case, the
President may commute, remit, or suspend the sentence, or any part
thereof, as he sees fit.
``(c) Execution of Sentence of Death Only Upon Final Judgment of
Legality of Proceedings.--(1) If the sentence of a military commission
under this chapter extends to death, the sentence may not be executed
until there is a final judgment as to the legality of the proceedings
(and with respect to death, approval under subsection (b)).
``(2) A judgment as to legality of proceedings is final for purposes
of paragraph (1) when review is completed in accordance with the
judgment of the United States Court of Military Commission Review and--
``(A) the time for the accused to file a petition for review
by the United States Court of Appeals for the District of
Columbia Circuit has expired, the accused has not filed a timely
petition for such review, and the case is not otherwise under
review by the Court of Appeals; or
``(B) review is completed in accordance with the judgment of
the United States Court of Appeals for the District of Columbia
Circuit and--
``(i) a petition for a writ of certiorari is not
timely filed;
``(ii) such a petition is denied by the Supreme
Court; or
``(iii) review is otherwise completed in accordance
with the judgment of the Supreme Court.
``(d) Suspension of Sentence.--The Secretary of the Defense, or the
convening authority acting on the case (if other than the Secretary),
may suspend the execution of any sentence or part thereof in the case,
except a sentence of death.
``Sec. 950j. Finality of proceedings, findings, and sentences
``The appellate review of records of trial provided by this chapter,
and the proceedings, findings, and sentences of military commissions as
approved, reviewed, or affirmed as required by this chapter, are final
and conclusive. Orders publishing the proceedings of military
commissions under this chapter are binding upon all departments, courts,
agencies, and officers of the United States, subject only to action by
the Secretary or the convening authority as provided in section 950i(c)
of this title and the authority of the President.
``SUBCHAPTER VIII--PUNITIVE MATTERS
``Sec.
``950p. Definitions; construction of certain offenses; common
circumstances.
``950q. Principals.
``950r. Accessory after the fact.
[[Page 123 STAT. 2606]]
``950s. Conviction of lesser offenses.
``950t. Crimes triable by military commission.
``Sec. 950p. Definitions; construction of certain offenses; common
circumstances
``(a) Definitions.--In this subchapter:
``(1) The term `military objective' means combatants and
those objects during hostilities which, by their nature,
location, purpose, or use, effectively contribute to the war-
fighting or war-sustaining capability of an opposing force and
whose total or partial destruction, capture, or neutralization
would constitute a definite military advantage to the attacker
under the circumstances at the time of an attack.
``(2) The term `protected person' means any person entitled
to protection under one or more of the Geneva Conventions,
including civilians not taking an active part in hostilities,
military personnel placed out of combat by sickness, wounds, or
detention, and military medical or religious personnel.
``(3) The term `protected property' means any property
specifically protected by the law of war, including buildings
dedicated to religion, education, art, science, or charitable
purposes, historic monuments, hospitals, and places where the
sick and wounded are collected, but only if and to the extent
such property is not being used for military purposes or is not
otherwise a military objective. The term includes objects
properly identified by one of the distinctive emblems of the
Geneva Conventions, but does not include civilian property that
is a military objective.
``(b) Construction of Certain Offenses.--The intent required for
offenses under paragraphs (1), (2), (3), (4), and (12) of section 950t
of this title precludes the applicability of such offenses with regard
to collateral damage or to death, damage, or injury incident to a lawful
attack.
``(c) Common Circumstances.--An offense specified in this subchapter
is triable by military commission under this chapter only if the offense
is committed in the context of and associated with hostilities.
``(d) Effect.--The provisions of this subchapter codify offenses
that have traditionally been triable by military commission. This
chapter does not establish new crimes that did not exist before the date
of the enactment of this subchapter, as amended by the National Defense
Authorization Act for Fiscal Year 2010, but rather codifies those crimes
for trial by military commission. Because the provisions of this
subchapter codify offenses that have traditionally been triable under
the law of war or otherwise triable by military commission, this
subchapter does not preclude trial for offenses that occurred before the
date of the enactment of this subchapter, as so amended.
``Sec. 950q. Principals
``Any person punishable 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 by this chapter, knew, had reason to know, or
[[Page 123 STAT. 2607]]
should have known, that a subordinate was about to commit such
acts or had done so and who failed to take the necessary and
reasonable measures to prevent such acts or to punish the
perpetrators thereof,
is a principal.
``Sec. 950r. Accessory after the fact
``Any person subject to this chapter who, knowing that an offense
punishable by this chapter has been committed, receives, comforts, or
assists the offender in order to hinder or prevent his apprehension,
trial, or punishment shall be punished as a military commission under
this chapter may direct.
``Sec. 950s. Conviction of lesser offenses
``An accused may be found guilty of an offense necessarily included
in the offense charged or of an attempt to commit either the offense
charged or an attempt to commit either the offense charged or an offense
necessarily included therein.
``Sec. 950t. Crimes triable by military commission
``The following offenses shall be triable by military commission
under this chapter at any time without limitation:
``(1) Murder of protected persons.--Any person subject to
this chapter who intentionally kills one or more protected
persons shall be punished by death or such other punishment as a
military commission under this chapter may direct.
``(2) Attacking civilians.--Any person subject to this
chapter who intentionally engages in an attack upon a civilian
population as such, or individual civilians not taking active
part in hostilities, shall be punished, if death results to one
or more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if death
does not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``(3) Attacking civilian objects.--Any person subject to
this chapter who intentionally engages in an attack upon a
civilian object that is not a military objective shall be
punished as a military commission under this chapter may direct.
``(4) Attacking protected property.--Any person subject to
this chapter who intentionally engages in an attack upon
protected property shall be punished as a military commission
under this chapter may direct.
``(5) Pillaging.--Any person subject to this chapter who
intentionally and in the absence of military necessity
appropriates or seizes property for private or personal use,
without the consent of a person with authority to permit such
appropriation or seizure, shall be punished as a military
commission under this chapter may direct.
``(6) Denying quarter.--Any person subject to this chapter
who, with effective command or control over subordinate groups,
declares, orders, or otherwise indicates to those groups that
there shall be no survivors or surrender accepted, with the
intent to threaten an adversary or to conduct hostilities such
that there would be no survivors or surrender accepted, shall be
punished as a military commission under this chapter may direct.
[[Page 123 STAT. 2608]]
``(7) Taking hostages.--Any person subject to this chapter
who, having knowingly seized or detained one or more persons,
threatens to kill, injure, or continue to detain such person or
persons with the intent of compelling any nation, person other
than the hostage, or group of persons to act or refrain from
acting as an explicit or implicit condition for the safety or
release of such person or persons, shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims, by
such punishment, other than death, as a military commission
under this chapter may direct.
``(8) Employing poison or similar weapons.--Any person
subject to this chapter who intentionally, as a method of
warfare, employs a substance or weapon that releases a substance
that causes death or serious and lasting damage to health in the
ordinary course of events, through its asphyxiating,
bacteriological, or toxic properties, shall be punished, if
death results to one or more of the victims, by death or such
other punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims, by
such punishment, other than death, as a military commission
under this chapter may direct.
``(9) Using protected persons as a shield.--Any person
subject to this chapter who positions, or otherwise takes
advantage of, a protected person with the intent to shield a
military objective from attack. or to shield, favor, or impede
military operations, shall be punished, if death results to one
or more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if death
does not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``(10) Using protected property as a shield.--Any person
subject to this chapter who positions, or otherwise takes
advantage of the location of, protected property with the intent
to shield a military objective from attack, or to shield, favor,
or impede military operations, shall be punished as a military
commission under this chapter may direct.
``(11) Torture.--
``(A) Offense.--Any person subject to this chapter
who commits an act specifically intended to inflict
severe physical or mental pain or suffering (other than
pain or suffering incidental to lawful sanctions) upon
another person within his custody or physical control
for the purpose of obtaining information or a
confession, punishment, intimidation, coercion, or any
reason based on discrimination of any kind, shall be
punished, if death results to one or more of the
victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death
does not result to any of the victims, by such
punishment, other than death, as a military commission
under this chapter may direct.
``(B) Severe mental pain or suffering defined.--In
this paragraph, the term `severe mental pain or
suffering' has the meaning given that term in section
2340(2) of title 18.
[[Page 123 STAT. 2609]]
``(12) Cruel or inhuman treatment.--Any person subject to
this chapter who subjects another person in their custody or
under their physical control, regardless of nationality or
physical location, to cruel or inhuman treatment that
constitutes a grave breach of common Article 3 of the Geneva
Conventions shall be punished, if death results to the victim,
by death or such other punishment as a military commission under
this chapter may direct, and, if death does not result to the
victim, by such punishment, other than death, as a military
commission under this chapter may direct.
``(13) Intentionally causing serious bodily injury.--
``(A) Offense.--Any person subject to this chapter
who intentionally causes serious bodily injury to one or
more persons, including privileged belligerents, in
violation of the law of war shall be punished, if death
results to one or more of the victims, by death or such
other punishment as a military commission under this
chapter may direct, and, if death does not result to any
of the victims, by such punishment, other than death, as
a military commission under this chapter may direct.
``(B) Serious bodily injury defined.--In this
paragraph, the term `serious bodily injury' means bodily
injury which involves--
``(i) a substantial risk of death;
``(ii) extreme physical pain;
``(iii) protracted and obvious disfigurement;
or
``(iv) protracted loss or impairment of the
function of a bodily member, organ, or mental
faculty.
``(14) Mutilating or maiming.--Any person subject to this
chapter who intentionally injures one or more protected persons
by disfiguring the person or persons by any mutilation of the
person or persons, or by permanently disabling any member, limb,
or organ of the body of the person or persons, without any
legitimate medical or dental purpose, shall be punished, if
death results to one or more of the victims, by death or such
other punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims, by
such punishment, other than death, as a military commission
under this chapter may direct.
``(15) Murder in violation of the law of war.--Any person
subject to this chapter who intentionally kills one or more
persons, including privileged belligerents, in violation of the
law of war shall be punished by death or such other punishment
as a military commission under this chapter may direct.
``(16) Destruction of property in violation of the law of
war.--Any person subject to this chapter who intentionally
destroys property belonging to another person in violation of
the law of war shall punished as a military commission under
this chapter may direct.
``(17) Using treachery or perfidy.--Any person subject to
this chapter who, after inviting the confidence or belief of one
or more persons that they were entitled to, or obliged to
accord, protection under the law of war, intentionally makes use
of that confidence or belief in killing, injuring, or capturing
such person or persons shall be punished, if death results
[[Page 123 STAT. 2610]]
to one or more of the victims, by death or such other punishment
as a military commission under this chapter may direct, and, if
death does not result to any of the victims, by such punishment,
other than death, as a military commission under this chapter
may direct.
``(18) Improperly using a flag of truce.--Any person subject
to this chapter who uses a flag of truce to feign an intention
to negotiate, surrender, or otherwise suspend hostilities when
there is no such intention shall be punished as a military
commission under this chapter may direct.
``(19) Improperly using a distinctive emblem.--Any person
subject to this chapter who intentionally uses a distinctive
emblem recognized by the law of war for combatant purposes in a
manner prohibited by the law of war shall be punished as a
military commission under this chapter may direct.
``(20) Intentionally mistreating a dead body.--Any person
subject to this chapter who intentionally mistreats the body of
a dead person, without justification by legitimate military
necessary, shall be punished as a military commission under this
chapter may direct.
``(21) Rape.--Any person subject to this chapter who
forcibly or with coercion or threat of force wrongfully invades
the body of a person by penetrating, however slightly, the anal
or genital opening of the victim with any part of the body of
the accused, or with any foreign object, shall be punished as a
military commission under this chapter may direct.
``(22) Sexual assault or abuse.--Any person subject to this
chapter who forcibly or with coercion or threat of force engages
in sexual contact with one or more persons, or causes one or
more persons to engage in sexual contact, shall be punished as a
military commission under this chapter may direct
``(23) Hijacking or hazarding a vessel or aircraft.--Any
person subject to this chapter who intentionally seizes,
exercises unauthorized control over, or endangers the safe
navigation of a vessel or aircraft that is not a legitimate
military objective shall be punished, if death results to one or
more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if death
does not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``(24) Terrorism.--Any person subject to this chapter who
intentionally kills or inflicts great bodily harm on one or more
protected persons, or intentionally engages in an act that
evinces a wanton disregard for human life, in a manner
calculated to influence or affect the conduct of government or
civilian population by intimidation or coercion, or to retaliate
against government conduct, shall be punished, if death results
to one or more of the victims, by death or such other punishment
as a military commission under this chapter may direct, and, if
death does not result to any of the victims, by such punishment,
other than death, as a military commission under this chapter
may direct.
``(25) Providing material support for terrorism.--
``(A) Offense.--Any person subject to this chapter
who provides material support or resources, knowing or
[[Page 123 STAT. 2611]]
intending that they are to be used in preparation for,
or in carrying out, an act of terrorism (as set forth in
paragraph (24) of this section), 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 so
set forth), shall be punished as a military commission
under this chapter may direct.
``(B) Material support or resources defined.--In
this paragraph, the term `material support or resources'
has the meaning given that term in section 2339A(b) of
title 18.
``(26) Wrongfully aiding the enemy.--Any person subject to
this chapter who, in breach of an allegiance or duty to the
United States, knowingly and intentionally aids an enemy of the
United States, or one of the co-belligerents of the enemy, shall
be punished as a military commission under this chapter may
direct.
``(27) Spying.--Any person subject to this chapter who, in
violation of the law of war and with intent or reason to believe
that it is to be used to the injury of the United States or to
the advantage of a foreign power, collects or attempts to
collect information by clandestine means or while acting under
false pretenses, for the purpose of conveying such information
to an enemy of the United States, or one of the co-belligerents
of the enemy, shall be punished by death or such other
punishment as a military commission under this chapter may
direct.
``(28) Attempts.--
``(A) In general.--Any person subject to this
chapter who attempts to commit any offense punishable by
this chapter shall be punished as a military commission
under this chapter may direct.
``(B) Scope of offense.--An act, done with specific
intent to commit an offense under this chapter,
amounting to more than mere preparation and tending,
even though failing, to effect its commission, is an
attempt to commit that offense.
``(C) Effect of consummation.--Any person subject to
this chapter may be convicted of an attempt to commit an
offense although it appears on the trial that the
offense was consummated.
``(29) Conspiracy.--Any person subject to this chapter who
conspires to commit one or more substantive offenses triable by
military commission under this subchapter, and who knowingly
does any overt act to effect the object of the conspiracy, shall
be punished, if death results to one or more of the victims, by
death or such other punishment as a military commission under
this chapter may direct, and, if death does not result to any of
the victims, by such punishment, other than death, as a military
commission under this chapter may direct.
``(30) Solicitation.--Any person subject to this chapter who
solicits or advises another or others to commit one or more
substantive offenses triable by military commission under this
chapter shall, if the offense solicited or advised is attempted
or committed, be punished with the punishment provided for the
commission of the offense, but, if the offense solicited or
[[Page 123 STAT. 2612]]
advised is not committed or attempted, shall be punished as a
military commission under this chapter may direct.
``(31) Contempt.--A military commission under this chapter
may punish for contempt any person who uses any menacing word,
sign, or gesture in its presence, or who disturbs its
proceedings by any riot or disorder.
``(32) Perjury and obstruction of justice.--A military
commission under this chapter may try offenses and impose such
punishment as the military commission may direct for perjury,
false testimony, or obstruction of justice related to the
military commission.''.
SEC. 1803. CONFORMING AMENDMENTS.
(a) Uniform Code of Military Justice.--
(1) Persons subject to ucmj.--Paragraph (13) of section
802(a) of title 10, United States Code (article 2(a) of the
Uniform Code of Military Justice), is amended to read as
follows:
``(13) Individuals belonging to one of the eight categories
enumerated in Article 4 of the Convention Relative to the
Treatment of Prisoners of War, done at Geneva August 12, 1949 (6
UST 3316), who violate the law of war.''.
(2) Construction of military commissions with courts-
martial.--Section 839 of such title (article 39 of the Uniform
Code of Military Justice) is amended by adding at the end the
following new subsection:
``(d) The findings, holdings, interpretations, and other precedents
of military commissions under chapter 47A of this title--
``(1) may not be introduced or considered in any hearing,
trial, or other proceeding of a court-martial under this
chapter; and
``(2) may not form the basis of any holding, decision, or
other determination of a court-martial.''.
(b) Appellate Review Under Detainee Treatment Act of 2005.--Section
1005(e) of the Detainee Treatment Act of 2005 (title X of Public Law
109-359; 10 U.S.C. 801 note) is amended by striking paragraph (3).
SEC. 1804. <<NOTE: 10 USC 948a note.>> PROCEEDINGS UNDER PRIOR
STATUTE.
(a) Prior Convictions.--The amendment made by section 1802 shall
have no effect on the validity of any conviction pursuant to chapter 47A
of title 10, United States Code (as such chapter was in effect on the
day before the date of the enactment of this Act).
(b) Composition of Military Commissions.--Notwithstanding the
amendment made by section 1802--
(1) any commission convened pursuant to chapter 47A of title
10, United States Code (as such chapter was in effect on the day
before the date of the enactment of this Act), shall be deemed
to have been convened pursuant to chapter 47A of title 10,
United States Code (as amended by section 1802);
(2) any member of the Armed Forces detailed to serve on a
commission pursuant to chapter 47A of title 10, United States
Code (as in effect on the day before the date of the enactment
of this Act), shall be deemed to have been detailed pursuant to
chapter 47A of title 10, United States Code (as so amended);
[[Page 123 STAT. 2613]]
(3) any military judge detailed to a commission pursuant to
chapter 47A of title 10, United States Code (as in effect on the
day before the date of the enactment of this Act), shall be
deemed to have been detailed pursuant to chapter 47A of title
10, United States Code (as so amended);
(4) any trial counsel or defense counsel detailed for a
commission pursuant to chapter 47A of title 10, United States
Code (as in effect on the day before the date of the enactment
of this Act), shall be deemed to have been detailed pursuant to
chapter 47A of title 10, United States Code (as so amended);
(5) any court reporters detailed to or employed by a
commission pursuant to chapter 47A of title 10, United States
Code (as in effect on the day before the date of the enactment
of this Act), shall be deemed to have been detailed or employed
pursuant to chapter 47A of title 10, United States Code (as so
amended); and
(6) any appellate military judge or other duly appointed
appellate judge on the Court of Military Commission Review
pursuant to chapter 47A of title 10, United States Code (as in
effect on the day before the date of the enactment of this Act),
shall be deemed to have been detailed or appointed to the United
States Court of Military Commission Review pursuant to chapter
47A of title 10, United States Code (as so amended).
(c) Charges and Specifications.--Notwithstanding the amendment made
by section 1802--
(1) any charges or specifications sworn or referred pursuant
to chapter 47A of title 10, United States Code (as such chapter
was in effect on the day before the date of the enactment of
this Act), shall be deemed to have been sworn or referred
pursuant to chapter 47A of title 10, United States Code (as
amended by section 1802); and
(2) any charges or specifications described in paragraph (1)
may be amended, without prejudice, as needed to properly allege
jurisdiction under chapter 47A of title 10, United States Code
(as so amended), and crimes triable under such chapter.
(d) Procedures and Requirements.--
(1) In general.--Except as provided in subsections (a)
through (c) and subject to paragraph (2), any commission
convened pursuant to chapter 47A of title 10, United States Code
(as such chapter was in effect on the day before the date of the
enactment of this Act), shall be conducted after the date of the
enactment of this Act in accordance with the procedures and
requirements of chapter 47A of title 10, United States Code (as
amended by section 1802).
(2) Temporary continuation of prior procedures and
requirements.--Any military commission described in paragraph
(1) may be conducted in accordance with any procedures and
requirements of chapter 47A of title 10, United States Code (as
in effect on the day before the date of the enactment of this
Act), that are not inconsistent with the provisions of chapter
47A of title 10, United States Code, (as so amended), until the
earlier of--
(A) the date of the submittal to Congress under
section 1805 of the revised rules for military
commissions under chapter 47A of title 10, United States
Code (as so amended); or
[[Page 123 STAT. 2614]]
(B) the date that is 90 days after the date of the
enactment of this Act.
SEC. 1805. <<NOTE: 10 USC 948a note.>> SUBMITTAL TO CONGRESS OF
REVISED RULES FOR MILITARY COMMISSIONS.
(a) Deadline for Submittal.--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 the revised rules for military commissions prescribed by
the Secretary for purposes of chapter 47A of title 10, United States
Code (as amended by section 1802).
(b) Treatment of Revised Rules Under Requirement for Notice and Wait
Regarding Modification of Rules.--The revised rules submitted to
Congress under subsection (a) shall not be treated as a modification of
the rules in effect for military commissions for purposes of section
949a(d) of title 10, United States Code (as so amended).
SEC. 1806. <<NOTE: 10 USC 948a note.>> ANNUAL REPORTS TO CONGRESS
ON TRIALS BY MILITARY COMMISSION.
(a) Annual Reports Required.--Not later than January 31 of each
year, the Secretary of Defense shall submit to the Committees on Armed
Services of the Senate and the House of Representatives a report on any
trials conducted by military commissions under chapter 47A of title 10,
United States Code (as amended by section 1802), during the preceding
year.
(b) Form.--Each report under this section shall be submitted in
unclassified form, but may include a classified annex.
SEC. 1807. SENSE OF CONGRESS ON MILITARY COMMISSION SYSTEM.
It is the sense of Congress that--
(1) the fairness and effectiveness of the military
commissions system under chapter 47A of title 10, United States
Code (as amended by section 1802), will depend to a significant
degree on the adequacy of defense counsel and associated
resources for individuals accused, particularly in the case of
capital cases, under such chapter 47A; and
(2) defense counsel in military commission cases,
particularly in capital cases, under such chapter 47A of title
10, United States Code (as so amended), should be fully
resourced as provided in such chapter 47A.
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