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Case 1:05-cv-01429-UNA Document 63-2 Filed 10/18/2006 Page 1 of 39

ATTACHMENT

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S. 3930

One Hundred Ninth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday,

the third day of January, two thousand and six

An Act

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

for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE.—This Act may be cited as the ‘‘Military

Commissions Act of 2006’’.

(b) TABLE OF CONTENTS.—The table of contents for this Act

is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Construction of Presidential authority to establish military commissions.
Sec. 3. Military commissions.
Sec. 4. Amendments to Uniform Code of Military Justice.
Sec. 5. Treaty obligations not establishing grounds for certain claims.
Sec. 6. Implementation of treaty obligations.
Sec. 7. Habeas corpus matters.
Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to protection of certain

United States Government personnel.

Sec. 9. Review of judgments of military commissions.
Sec. 10. Detention covered by review of decisions of Combatant Status Review Tri-

bunals of propriety of detention.

SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH

MILITARY COMMISSIONS.

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

(a) MILITARY COMMISSIONS.—

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

‘‘CHAPTER 47A—MILITARY COMMISSIONS

‘‘Subchapter
‘‘I. General Provisions ............................................................................................
948a
‘‘II. Composition of Military Commissions ........................................................... 948h
948q
‘‘III. Pre-Trial Procedure ........................................................................................
949a
‘‘IV. Trial Procedure ...............................................................................................
‘‘V. Sentences ..........................................................................................................
949s

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S. 3930—2

‘‘VI. Post-Trial Procedure and Review of Military Commissions ........................
‘‘VII. Punitive Matters ...........................................................................................

950a
950p

‘‘SUBCHAPTER I—GENERAL PROVISIONS

‘‘Sec.
‘‘948a. Definitions.
‘‘948b. Military commissions generally.
‘‘948c. Persons subject to military commissions.
‘‘948d. Jurisdiction of military commissions.
‘‘948e. Annual report to congressional committees.
‘‘§ 948a. Definitions
‘‘In this chapter:

‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlaw-

ful enemy combatant’ means—

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

‘‘(ii) a person who, before, on, or after the date of
the enactment of the Military Commissions Act of 2006,
has been determined to be an unlawful enemy combatant
by a Combatant Status Review Tribunal or another com-
petent tribunal established under the authority of the
President or the Secretary of Defense.
‘‘(B) CO-BELLIGERENT.—In this paragraph, the term ‘co-
belligerent’, with respect to the United States, means any State
or armed force joining and directly engaged with the United
States in hostilities or directly supporting hostilities against
a common enemy.

‘‘(2) LAWFUL ENEMY COMBATANT.—The term ‘lawful enemy

combatant’ means a person who is—

‘‘(A) a member of the regular forces of a State party

engaged in hostilities against the United States;

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

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

a citizen of the United States.

‘‘(4) CLASSIFIED

INFORMATION.—The

term

‘classified

information’ means the following:

‘‘(A) Any information or material that has been deter-
mined by the United States Government pursuant to
statute, Executive order, or regulation to require protection
against unauthorized disclosure for reasons of national
security.

‘‘(B) Any restricted data, as that term is defined in
section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C.
2014(y)).

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S. 3930—3

‘‘(5) GENEVA CONVENTIONS.—The term ‘Geneva Conven-
tions’ means the international conventions signed at Geneva
on August 12, 1949.

‘‘§ 948b. Military commissions generally

‘‘(a) PURPOSE.—This chapter establishes procedures governing
the use of military commissions to try alien unlawful enemy combat-
ants engaged in hostilities against the United States for violations
of the law of war and other offenses triable by military commission.
‘‘(b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS
CHAPTER.—The President
is authorized to establish military
commissions under this chapter for offenses triable by military
commission as provided in this chapter.

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

‘‘(d) INAPPLICABILITY OF CERTAIN PROVISIONS.—(1) The fol-
lowing provisions of this title shall not apply to trial by military
commission under this chapter:

‘‘(A) Section 810 (article 10 of the Uniform Code of Military
Justice), relating to speedy trial, including any rule of courts-
martial relating to speedy trial.

‘‘(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and
(d) of the Uniform Code of Military Justice), relating to compul-
sory self-incrimination.

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

Justice), relating to pretrial investigation.
‘‘(2) Other provisions of chapter 47 of this title shall apply
to trial by military commission under this chapter only to the
extent provided by this chapter.

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

‘‘(f) STATUS OF COMMISSIONS UNDER COMMON ARTICLE 3.—
A military commission established under this chapter is a regularly
constituted court, affording all the necessary ‘judicial guarantees
which are recognized as indispensable by civilized peoples’ for pur-
poses of common Article 3 of the Geneva Conventions.

‘‘(g) GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF
RIGHTS.—No alien unlawful enemy combatant subject to trial by
military commission under this chapter may invoke the Geneva
Conventions as a source of rights.

‘‘§ 948c. Persons subject to military commissions

‘‘Any alien unlawful enemy combatant is subject to trial by

military commission under this chapter.

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‘‘§ 948d. Jurisdiction of military commissions

S. 3930—4

‘‘(a) JURISDICTION.—A military commission under this chapter
shall have jurisdiction to try any offense made punishable by this
chapter or the law of war when committed by an alien unlawful
enemy combatant before, on, or after September 11, 2001.

‘‘(b) LAWFUL ENEMY COMBATANTS.—Military commissions under
this chapter shall not have jurisdiction over lawful enemy combat-
ants. Lawful enemy combatants who violate the law of war are
subject to chapter 47 of this title. Courts-martial established under
that chapter shall have jurisdiction to try a lawful enemy combatant
for any offense made punishable under this chapter.

‘‘(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS
DISPOSITIVE.—A finding, whether before, on, or after the date of
the enactment of the Military Commissions Act of 2006, by a
Combatant Status Review Tribunal or another competent tribunal
established under the authority of the President or the Secretary
of Defense that a person is an unlawful enemy combatant is disposi-
tive for purposes of jurisdiction for trial by military commission
under this chapter.

‘‘(d) PUNISHMENTS.—A military commission under this chapter
may, under such limitations as the Secretary of Defense may pre-
scribe, adjudge any punishment not forbidden by this chapter,
including the penalty of death when authorized under this chapter
or the law of war.
‘‘§ 948e. Annual report to congressional committees

‘‘(a) ANNUAL REPORT REQUIRED.—Not later than December 31
each year, the Secretary of Defense shall submit to the Committees
on Armed Services of the Senate and the House of Representatives
a report on any trials conducted by military commissions under
this chapter during such year.

‘‘(b) FORM.—Each report under this section shall be submitted

in unclassified form, but may include a classified annex.

‘‘SUBCHAPTER II—COMPOSITION OF MILITARY

COMMISSIONS

‘‘Sec.
‘‘948h. Who may convene military commissions.
‘‘948i. Who may serve on military commissions.
‘‘948j. Military judge of a military commission.
‘‘948k. Detail of trial counsel and defense counsel.
‘‘948l. Detail or employment of reporters and interpreters.
‘‘948m. Number of members; excuse of members; absent and additional members.
‘‘§ 948h. Who may convene military commissions

‘‘Military commissions under this chapter may be convened
by the Secretary of Defense or by any officer or official of the
United States designated by the Secretary for that purpose.
‘‘§ 948i. Who may serve on military commissions

‘‘(a) IN GENERAL.—Any commissioned officer of the armed forces
on active duty is eligible to serve on a military commission under
this chapter.

‘‘(b) DETAIL OF MEMBERS.—When convening a military commis-
sion under this chapter, the convening authority shall detail as
members of the commission such members of the armed forces
eligible under subsection (a), as in the opinion of the convening

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S. 3930—5

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

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

‘‘§ 948j. Military judge of a military commission

‘‘(a) DETAIL OF MILITARY JUDGE.—A military judge shall be
detailed to each military commission under this chapter. The Sec-
retary of Defense shall prescribe regulations providing for the
manner in which military judges are so detailed to military commis-
sions. The military judge shall preside over each military commis-
sion to which he has been detailed.

‘‘(b) QUALIFICATIONS.—A military judge shall be a commissioned
officer of the armed forces who is a member of the bar of a Federal
court, or a member of the bar of the highest court of a State,
and who is certified to be qualified for duty under section 826
of this title (article 26 of the Uniform Code of Military Justice)
as a military judge in general courts-martial by the Judge Advocate
General of the armed force of which such military judge is a
member.

‘‘(c) INELIGIBILITY OF CERTAIN INDIVIDUALS.—No person is
eligible to act as military judge in a case of a military commission
under this chapter if he is the accuser or a witness or has acted
as investigator or a counsel in the same case.

‘‘(d) CONSULTATION WITH MEMBERS; INELIGIBILITY TO VOTE.—
A military judge detailed to a military commission under this
chapter may not consult with the members of the commission
except in the presence of the accused (except as otherwise provided
in section 949d of this title), trial counsel, and defense counsel,
nor may he vote with the members of the commission.

‘‘(e) OTHER DUTIES.—A commissioned officer who is certified
to be qualified for duty as a military judge of a military commission
under this chapter may perform such other duties as are assigned
to him by or with the approval of the Judge Advocate General
of the armed force of which such officer is a member or the designee
of such Judge Advocate General.

‘‘(f) PROHIBITION ON EVALUATION OF FITNESS BY CONVENING
AUTHORITY.—The convening authority of a military commission
under this chapter shall not prepare or review any report concerning
the effectiveness, fitness, or efficiency of a military judge detailed
to the military commission which relates to his performance of
duty as a military judge on the military commission.

‘‘§ 948k. Detail of trial counsel and defense counsel

‘‘(a) DETAIL OF COUNSEL GENERALLY.—(1) Trial counsel and
military defense counsel shall be detailed for each military commis-
sion under this chapter.

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

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S. 3930—6

‘‘(3) Military defense counsel for a military commission under
this chapter shall be detailed as soon as practicable after the
swearing of charges against the accused.

‘‘(4) The Secretary of Defense shall prescribe regulations pro-
viding for the manner in which trial counsel and military defense
counsel are detailed for military commissions under this chapter
and for the persons who are authorized to detail such counsel
for such commissions.

‘‘(b) TRIAL COUNSEL.—Subject to subsection (e), trial counsel
detailed for a military commission under this chapter must be—
‘‘(1) a judge advocate (as that term is defined in section
801 of this title (article 1 of the Uniform Code of Military
Justice) who—

‘‘(A) is a graduate of an accredited law school or is
a member of the bar of a Federal court or of the highest
court of a State; and

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

‘‘(A) is a member of the bar of a Federal court or

of the highest court of a State; and

‘‘(B) is otherwise qualified to practice before the mili-
tary commission pursuant to regulations prescribed by the
Secretary of Defense.

‘‘(c) MILITARY DEFENSE COUNSEL.—Subject to subsection (e),
military defense counsel detailed for a military commission under
this chapter must be a judge advocate (as so defined) who is—
‘‘(1) a graduate of an accredited law school or is a member
of the bar of a Federal court or of the highest court of a
State; and

‘‘(2) certified as competent to perform duties as defense
counsel before general courts-martial by the Judge Advocate
General of the armed force of which he is a member.
‘‘(d) CHIEF PROSECUTOR; CHIEF DEFENSE COUNSEL.—(1) The
Chief Prosecutor in a military commission under this chapter shall
meet the requirements set forth in subsection (b)(1).

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

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

‘‘§ 948l. Detail or employment of reporters and interpreters
‘‘(a) COURT REPORTERS.—Under such regulations as the Sec-
retary of Defense may prescribe, the convening authority of a mili-
tary commission under this chapter shall detail to or employ for
the commission qualified court reporters, who shall make a verbatim

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S. 3930—7

recording of the proceedings of and testimony taken before the
commission.

‘‘(b) INTERPRETERS.—Under such regulations as the Secretary
of Defense may prescribe, the convening authority of a military
commission under this chapter may detail to or employ for the
military commission interpreters who shall interpret for the
commission and, as necessary, for trial counsel and defense counsel
and for the accused.

‘‘(c) TRANSCRIPT; RECORD.—The transcript of a military commis-
sion under this chapter shall be under the control of the convening
authority of the commission, who shall also be responsible for
preparing the record of the proceedings.
‘‘§ 948m. Number of members; excuse of members; absent

and additional members

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

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

‘‘(b) EXCUSE OF MEMBERS.—No member of a military commis-
sion under this chapter may be absent or excused after the military
commission has been assembled for the trial of a case unless
excused—

‘‘(1) as a result of challenge;
‘‘(2) by the military judge for physical disability or other

good cause; or

‘‘(3) by order of the convening authority for good cause.
‘‘(c) ABSENT AND ADDITIONAL MEMBERS.—Whenever a military
commission under this chapter is reduced below the number of
members required by subsection (a), the trial may not proceed
unless the convening authority details new members sufficient to
provide not less than such number. The trial may proceed with
the new members present after the recorded evidence previously
introduced before the members has been read to the military
commission in the presence of the military judge, the accused
(except as provided in section 949d of this title), and counsel for
both sides.

‘‘SUBCHAPTER III—PRE-TRIAL PROCEDURE

‘‘Sec.
‘‘948q. Charges and specifications.
‘‘948r. Compulsory self-incrimination prohibited; treatment of statements obtained

by torture and other statements.

‘‘948s. Service of charges.
‘‘§ 948q. Charges and specifications

‘‘(a) CHARGES AND SPECIFICATIONS.—Charges and specifications
against an accused in a military commission under this chapter
shall be signed by a person subject to chapter 47 of this title
under oath before a commissioned officer of the armed forces author-
ized to administer oaths and shall state—

‘‘(1) that the signer has personal knowledge of, or reason

to believe, the matters set forth therein; and

‘‘(2) that they are true in fact to the best of the signer’s

knowledge and belief.

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S. 3930—8

‘‘(b) NOTICE TO ACCUSED.—Upon the swearing of the charges
and specifications in accordance with subsection (a), the accused
shall be informed of the charges against him as soon as practicable.
‘‘§ 948r. Compulsory self-incrimination prohibited; treatment
of statements obtained by torture and other
statements

‘‘(a) IN GENERAL.—No person shall be required to testify against
himself at a proceeding of a military commission under this chapter.
‘‘(b) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE.—A
statement obtained by use of torture shall not be admissible in
a military commission under this chapter, except against a person
accused of torture as evidence that the statement was made.

‘‘(c) STATEMENTS OBTAINED BEFORE ENACTMENT OF DETAINEE
TREATMENT ACT OF 2005.—A statement obtained before December
30, 2005 (the date of the enactment of the Defense Treatment
Act of 2005) in which the degree of coercion is disputed may be
admitted only if the military judge finds that—

‘‘(1) the totality of the circumstances renders the statement

reliable and possessing sufficient probative value; and

‘‘(2) the interests of justice would best be served by admis-

sion of the statement into evidence.
‘‘(d) STATEMENTS OBTAINED AFTER ENACTMENT OF DETAINEE
TREATMENT ACT OF 2005.—A statement obtained on or after
December 30, 2005 (the date of the enactment of the Defense
Treatment Act of 2005) in which the degree of coercion is disputed
may be admitted only if the military judge finds that—

‘‘(1) the totality of the circumstances renders the statement

reliable and possessing sufficient probative value;

‘‘(2) the interests of justice would best be served by admis-

sion of the statement into evidence; and

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

‘‘§ 948s. Service of charges

‘‘The trial counsel assigned to a case before a military commis-
sion under this chapter shall cause to be served upon the accused
and military defense counsel a copy of the charges upon which
trial is to be had. Such charges shall be served in English and,
if appropriate, in another language that the accused understands.
Such service shall be made sufficiently in advance of trial to prepare
a defense.

‘‘SUBCHAPTER IV—TRIAL PROCEDURE

‘‘Sec.
‘‘949a. Rules.
‘‘949b. Unlawfully influencing action of military commission.
‘‘949c. Duties of trial counsel and defense counsel.
‘‘949d. Sessions.
‘‘949e. Continuances.
‘‘949f. Challenges.
‘‘949g. Oaths.
‘‘949h. Former jeopardy.
‘‘949i. Pleas of the accused.
‘‘949j. Opportunity to obtain witnesses and other evidence.
‘‘949k. Defense of lack of mental responsibility.
‘‘949l. Voting and rulings.

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S. 3930—9

‘‘949m. Number of votes required.
‘‘949n. Military commission to announce action.
‘‘949o. Record of trial.
‘‘§ 949a. Rules

as provided for by section 948k.

‘‘(D) The accused shall be permitted to represent himself,

as provided for by paragraph (3).
‘‘(2) In establishing procedures and rules of evidence for military
commission proceedings, the Secretary of Defense may prescribe
the following provisions:

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

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

‘‘(B) The accused shall be present at all sessions of the
military commission (other than those for deliberations or
voting), except when excluded under section 949d of this title.
‘‘(C) The accused shall receive the assistance of counsel

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

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

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

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

‘‘(ii) the military judge instructs the members that
they may consider any issue as to authentication or identi-
fication of evidence in determining the weight, if any, to
be given to the evidence.
‘‘(E)(i) Except as provided in clause (ii), hearsay evidence
not otherwise admissible under the rules of evidence applicable
in trial by general courts-martial may be admitted in a trial
by military commission if the proponent of the evidence makes
known to the adverse party, sufficiently in advance to provide

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S. 3930—10

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

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

probative value of which is substantially outweighed—

‘‘(i) by the danger of unfair prejudice, confusion of

the issues, or misleading the commission; or

‘‘(ii) by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.

‘‘(3)(A) The accused in a military commission under this chapter
who exercises the right to self-representation under paragraph
(1)(D) shall conform his deportment and the conduct of the defense
to the rules of evidence, procedure, and decorum applicable to
trials by military commission.

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

‘‘(c) DELEGATION OF AUTHORITY TO PRESCRIBE REGULATIONS.—
The Secretary of Defense may delegate the authority of the Sec-
retary to prescribe regulations under this chapter.

‘‘(d) NOTIFICATION TO CONGRESSIONAL COMMITTEES OF CHANGES
TO PROCEDURES.—Not later than 60 days before the date on which
any proposed modification of the procedures in effect for military
commissions under this chapter goes into effect, the Secretary of
Defense shall submit to the Committee on Armed Services of the
Senate and the Committee on Armed Services of the House of
Representatives a report describing the modification.
‘‘§ 949b. Unlawfully influencing action of military commission
‘‘(a) IN GENERAL.—(1) No authority convening a military
commission under this chapter may censure, reprimand, or
admonish the military commission, or any member, military judge,
or counsel thereof, with respect to the findings or sentence adjudged
by the military commission, or with respect to any other exercises
of its or his functions in the conduct of the proceedings.

‘‘(2) No person may attempt to coerce or, by any unauthorized

means, influence—

‘‘(A) the action of a military commission under this chapter,
or any member thereof, in reaching the findings or sentence
in any case;

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

authority with respect to his judicial acts; or

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

or defense counsel.

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S. 3930—11

‘‘(3) Paragraphs (1) and (2) do not apply with respect to—
‘‘(A) general instructional or informational courses in mili-
tary justice if such courses are designed solely for the purpose
of instructing members of a command in the substantive and
procedural aspects of military commissions; or

‘‘(B) statements and instructions given in open proceedings

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

‘‘(1) consider or evaluate the performance of duty of any

member of a military commission under this chapter; or

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

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

‘‘(a) TRIAL COUNSEL.—The trial counsel of a military commis-
sion under this chapter shall prosecute in the name of the United
States.

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

‘‘(2) The accused shall be represented by military counsel

detailed under section 948k of this title.

‘‘(3) The accused may be represented by civilian counsel if

retained by the accused, but only if such civilian counsel—

‘‘(A) is a United States citizen;
‘‘(B) is admitted to the practice of law in a State, district,
or possession of the United States or before a Federal court;
‘‘(C) has not been the subject of any sanction of disciplinary
action by any court, bar, or other competent governmental
authority for relevant misconduct;

‘‘(D) has been determined to be eligible for access to classi-
fied information that is classified at the level Secret or higher;
and

‘‘(E) has signed a written agreement to comply with all
applicable regulations or instructions for counsel, including any
rules of court for conduct during the proceedings.
‘‘(4) Civilian defense counsel shall protect any classified
information received during the course of representation of the
accused in accordance with all applicable law governing the protec-
tion of classified information and may not divulge such information
to any person not authorized to receive it.

‘‘(5) If the accused is represented by civilian counsel, detailed

military counsel shall act as associate counsel.

‘‘(6) The accused is not entitled to be represented by more
than one military counsel. However, the person authorized under
regulations prescribed under section 948k of this title to detail
counsel, in that person’s sole discretion, may detail additional mili-
tary counsel to represent the accused.

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S. 3930—12

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

‘‘§ 949d. Sessions

‘‘(a) SESSIONS WITHOUT PRESENCE OF MEMBERS.—(1) At any
time after the service of charges which have been referred for
trial by military commission under this chapter, the military judge
may call the military commission into session without the presence
of the members for the purpose of—

‘‘(A) hearing and determining motions raising defenses or
objections which are capable of determination without trial
of the issues raised by a plea of not guilty;

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

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

of Defense, receiving the pleas of the accused; and

‘‘(D) performing any other procedural function which may
be performed by the military judge under this chapter or under
rules prescribed pursuant to section 949a of this title and
which does not require the presence of the members.
‘‘(2) Except as provided in subsections (c) and (e), any pro-

ceedings under paragraph (1) shall—

‘‘(A) be conducted in the presence of the accused, defense

counsel, and trial counsel; and

‘‘(B) be made part of the record.

‘‘(b) PROCEEDINGS IN PRESENCE OF ACCUSED.—Except as pro-
vided in subsections (c) and (e), all proceedings of a military commis-
sion under this chapter, including any consultation of the members
with the military judge or counsel, shall—

‘‘(1) be in the presence of the accused, defense counsel,

and trial counsel; and

‘‘(2) be made a part of the record.

‘‘(c) DELIBERATION OR VOTE OF MEMBERS.—When the members
of a military commission under this chapter deliberate or vote,
only the members may be present.

‘‘(d) CLOSURE OF PROCEEDINGS.—(1) The military judge may
close to the public all or part of the proceedings of a military
commission under this chapter, but only in accordance with this
subsection.

‘‘(2) The military judge may close to the public all or a portion
of the proceedings under paragraph (1) only upon making a specific
finding that such closure is necessary to—

‘‘(A) protect information the disclosure of which could
reasonably be expected to cause damage to the national secu-
rity, including intelligence or law enforcement sources, methods,
or activities; or

‘‘(B) ensure the physical safety of individuals.

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

‘‘(e) EXCLUSION OF ACCUSED FROM CERTAIN PROCEEDINGS.—
The military judge may exclude the accused from any portion of
a proceeding upon a determination that, after being warned by

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S. 3930—13

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

‘‘(1) to ensure the physical safety of individuals; or
‘‘(2) to prevent disruption of the proceedings by the accused.

‘‘(f) PROTECTION OF CLASSIFIED INFORMATION.—

SECURITY

‘‘(1) NATIONAL

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

‘‘(i) the information is properly classified; and
‘‘(ii) disclosure of the information would be detrimental

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

‘‘(2) INTRODUCTION OF CLASSIFIED INFORMATION.—

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

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

‘‘(ii) the substitution of a portion or summary of

the information for such classified documents; or

‘‘(iii) the substitution of a statement of relevant
facts that the classified information would tend to
prove.
‘‘(B) PROTECTION OF SOURCES, METHODS, OR ACTIVI-
TIES.—The military judge, upon motion of trial counsel,
shall permit trial counsel to introduce otherwise admissible
evidence before the military commission, while protecting
from disclosure the sources, methods, or activities by which
the United States acquired the evidence if the military
judge finds that (i) the sources, methods, or activities by
which the United States acquired the evidence are classi-
fied, and (ii) the evidence is reliable. The military judge
may require trial counsel to present to the military commis-
sion and the defense, to the extent practicable and con-
sistent with national security, an unclassified summary
of the sources, methods, or activities by which the United
States acquired the evidence.

‘‘(C) ASSERTION OF NATIONAL SECURITY PRIVILEGE AT
TRIAL.—During the examination of any witness, trial
counsel may object to any question, line of inquiry, or
motion to admit evidence that would require the disclosure
of classified information. Following such an objection, the
military judge shall take suitable action to safeguard such
classified information. Such action may include the review

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S. 3930—14

of trial counsel’s claim of privilege by the military judge
in camera and on an ex parte basis, and the delay of
proceedings to permit trial counsel to consult with the
department or agency concerned as to whether the national
security privilege should be asserted.
‘‘(3) CONSIDERATION OF PRIVILEGE AND RELATED MATE-
RIALS.—A claim of privilege under this subsection, and any
materials submitted in support thereof, shall, upon request
of the Government, be considered by the military judge in
camera and shall not be disclosed to the accused.

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

‘‘§ 949e. Continuances

‘‘The military judge in a military commission under this chapter
may, for reasonable cause, grant a continuance to any party for
such time, and as often, as may appear to be just.
‘‘§ 949f. Challenges

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

‘‘(b) PEREMPTORY CHALLENGES.—Each accused and the trial
counsel are entitled to one peremptory challenge. The military
judge may not be challenged except for cause.

‘‘(c) CHALLENGES AGAINST ADDITIONAL MEMBERS.—Whenever
additional members are detailed to a military commission under
this chapter, and after any challenges for cause against such addi-
tional members are presented and decided, each accused and the
trial counsel are entitled to one peremptory challenge against mem-
bers not previously subject to peremptory challenge.
‘‘§ 949g. Oaths

‘‘(a) IN GENERAL.—(1) Before performing their respective duties
in a military commission under this chapter, military judges, mem-
bers, trial counsel, defense counsel, reporters, and interpreters shall
take an oath to perform their duties faithfully.

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

‘‘(A) an oath to perform faithfully duties as a military
judge, trial counsel, or defense counsel may be taken at any

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S. 3930—15

time by any judge advocate or other person certified to be
qualified or competent for the duty; and

‘‘(B) if such an oath is taken, such oath need not again
be taken at the time the judge advocate or other person is
detailed to that duty.
‘‘(b) WITNESSES.—Each witness before a military commission

under this chapter shall be examined on oath.
‘‘§ 949h. Former jeopardy

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

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

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

‘‘(b) FINDING OF GUILT AFTER GUILTY PLEA.—With respect to
any charge or specification to which a plea of guilty has been
made by the accused in a military commission under this chapter
and accepted by the military judge, a finding of guilty of the
charge or specification may be entered immediately without a vote.
The finding shall constitute the finding of the commission unless
the plea of guilty is withdrawn prior to announcement of the sen-
tence, in which event the proceedings shall continue as though
the accused had pleaded not guilty.
‘‘§ 949j. Opportunity to obtain witnesses and other evidence
‘‘(a) RIGHT OF DEFENSE COUNSEL.—Defense counsel in a mili-
tary commission under this chapter shall have a reasonable oppor-
tunity to obtain witnesses and other evidence as provided in regula-
tions prescribed by the Secretary of Defense.

‘‘(b) PROCESS FOR COMPULSION.—Process issued in a military
commission under this chapter to compel witnesses to appear and
testify and to compel the production of other evidence—

‘‘(1) shall be similar to that which courts of the United
States having criminal jurisdiction may lawfully issue; and
‘‘(2) shall run to any place where the United States shall

have jurisdiction thereof.
‘‘(c) PROTECTION OF CLASSIFIED INFORMATION.—(1) With respect
to the discovery obligations of trial counsel under this section,
the military judge, upon motion of trial counsel, shall authorize,
to the extent practicable—

‘‘(A) the deletion of specified items of classified information

from documents to be made available to the accused;

‘‘(B) the substitution of a portion or summary of the

information for such classified documents; or

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S. 3930—16

‘‘(C) the substitution of a statement admitting relevant

facts that the classified information would tend to prove.
‘‘(2) The military judge, upon motion of trial counsel, shall
authorize trial counsel, in the course of complying with discovery
obligations under this section, to protect from disclosure the sources,
methods, or activities by which the United States acquired evidence
if the military judge finds that the sources, methods, or activities
by which the United States acquired such evidence are classified.
The military judge may require trial counsel to provide, to the
extent practicable, an unclassified summary of the sources, methods,
or activities by which the United States acquired such evidence.
‘‘(d) EXCULPATORY EVIDENCE.—(1) As soon as practicable, trial
counsel shall disclose to the defense the existence of any evidence
known to trial counsel that reasonably tends to exculpate the
accused. Where exculpatory evidence is classified, the accused shall
be provided with an adequate substitute in accordance with the
procedures under subsection (c).

‘‘(2) In this subsection, the term ‘evidence known to trial
counsel’, in the case of exculpatory evidence, means exculpatory
evidence that the prosecution would be required to disclose in
a trial by general court-martial under chapter 47 of this title.
‘‘§ 949k. Defense of lack of mental responsibility

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

‘‘(b) BURDEN OF PROOF.—The accused in a military commission
under this chapter has the burden of proving the defense of lack
of mental responsibility by clear and convincing evidence.

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

‘‘(1) guilty;
‘‘(2) not guilty; or
‘‘(3) subject to subsection (d), not guilty by reason of lack

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

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S. 3930—17

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

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

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

‘‘(2) that in the case being considered, if there is a reason-
able doubt as to the guilt of the accused, the doubt must
be resolved in favor of the accused and he must be acquit