About Me
I
109THCONGRESS
2DSESSION
H. R. 6166
To amend title 10, United States Code, to authorize trial by military
commission for violations of the law of war, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER25, 2006
Mr. HUNTER(for himself and Mr. SENSENBRENNER) introduced the following
bill; which was referred to the Committee on Armed Services, and in ad-
dition to the Committees on the Judiciary and International Relations,
for a period to be subsequently determined by the Speaker, in each case
for consideration of such provisions as fall within the jurisdiction of the
committee concerned
A BILL
To amend title 10, United States Code, 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 Representa-1
tives of the United States of America in Congress assembled, 2
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3
(a) SHORTTITLE.—This Act may be cited as the 4
‘‘Military Commissions Act of 2006’’. 5
(b) TABLEOFCONTENTS.—The table of contents for 6
this Act is as follows: 7
Sec. 1. Short title; table of contents.
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
2
•HR 6166 IH
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
Tribunals of propriety of detention.
SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO 1
ESTABLISH MILITARY COMMISSIONS. 2
The authority to establish military commissions 3
under chapter 47A of title 10, United States Code, as 4
added by section 3(a), may not be construed to alter or 5
limit the authority of the President under the Constitution 6
of the United States and laws of the United States to es-7
tablish military commissions for areas declared to be 8
under martial law or in occupied territories should cir-9
cumstances so require. 10
SEC. 3. MILITARY COMMISSIONS. 11
(a) MILITARYCOMMISSIONS.— 12
(1) IN GENERAL.—Subtitle A of title 10, 13
United States Code, is amended by inserting after 14
chapter 47 the following new chapter: 15
‘‘CHAPTER 47A—MILITARY COMMISSIONS 16
‘‘Subchapter
‘‘I. General Provisions ............................................................
.................. 948a
‘‘II. Composition of Military Commissions ............................................... 948h
‘‘III. Pre-Trial Procedure ............................................................
............. 948q
‘‘IV. Trial Procedure...................................................
.............................. 949a
‘‘V. Sentences...................................................
......................................... 949s
‘‘VI. Post-Trial Procedure and Review of Military Commissions............. 950a
‘‘VII. Punitive Matters ............................................................
................. 950p
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
3
•HR 6166 IH
‘‘SUBCHAPTER I—GENERAL PROVISIONS 1
‘‘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 2
‘‘In this chapter: 3
‘‘(1) UNLAWFULENEMYCOMBATANT.—(A) The 4
term ‘unlawful enemy combatant’ means— 5
‘‘(i) a person who has engaged in hos-6
tilities or who has purposefully and materially 7
supported hostilities against the United States 8
or its co-belligerents who is not a lawful enemy 9
combatant (including a person who is part of 10
the Taliban, al Qaeda, or associated forces); or 11
‘‘(ii) a person who, before, on, or after the 12
date of the enactment of the Military Commis-13
sions Act of 2006, has been determined to be 14
an unlawful enemy combatant by a Combatant 15
Status Review Tribunal or another competent 16
tribunal established under the authority of the 17
President or the Secretary of Defense. 18
‘‘(B) CO-BELLIGERENT.—In this paragraph, 19
the term ‘co-belligerent’, with respect to the United 20
States, means any State or armed force joining and 21
directly engaged with the United States in hostilities 22
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
4
•HR 6166 IH
or directly supporting hostilities against a common 1
enemy. 2
‘‘(2) LAWFULENEMYCOMBATANT.—The term 3
‘lawful enemy combatant’ means a person who is— 4
‘‘(A) a member of the regular forces of a 5
State party engaged in hostilities against the 6
United States; 7
‘‘(B) a member of a militia, volunteer 8
corps, or organized resistance movement belong-9
ing to a State party engaged in such hostilities, 10
which are under responsible command, wear a 11
fixed distinctive sign recognizable at a distance, 12
carry their arms openly, and abide by the law 13
of war; or 14
‘‘(C) a member of a regular armed force 15
who professes allegiance to a government en-16
gaged in such hostilities, but not recognized by 17
the United States. 18
‘‘(3) ALIEN.—The term ‘alien’ means a person 19
who is not a citizen of the United States. 20
‘‘(4) CLASSIFIED INFORMATION.—The term 21
‘classified information’ means the following: 22
‘‘(A) Any information or material that has 23
been determined by the United States Govern-24
ment pursuant to statute, Executive order, or 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
5
•HR 6166 IH
regulation to require protection against unau-1
thorized disclosure for reasons of national secu-2
rity. 3
‘‘(B) Any restricted data, as that term is 4
defined in section 11 y. of the Atomic Energy 5
Act of 1954 (42 U.S.C. 2014(y)). 6
‘‘(5) GENEVACONVENTIONS.—The term ‘Gene-7
va Conventions’ means the international conventions 8
signed at Geneva on August 12, 1949. 9
‘‘§948b. Military commissions generally 10
‘‘(a) PURPOSE.—This chapter establishes procedures 11
governing the use of military commissions to try alien un-12
lawful enemy combatants engaged in hostilities against the 13
United States for violations of the law of war and other 14
offenses triable by military commission. 15
‘‘(b) AUTHORITY FOR MILITARY COMMISSIONS 16
UNDERTHISCHAPTER.—The President is authorized to 17
establish military commissions under this chapter for of-18
fenses triable by military commission as provided in this 19
chapter. 20
‘‘(c) CONSTRUCTION OF PROVISIONS.—The proce-21
dures for military commissions set forth in this chapter 22
are based upon the procedures for trial by general courts- 23
martial under chapter 47 of this title (the Uniform Code 24
of Military Justice). Chapter 47 of this title does not, by 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
6
•HR 6166 IH
its terms, apply to trial by military commission except as 1
specifically provided in this chapter. The judicial construc-2
tion and application of that chapter are not binding on 3
military commissions established under this chapter. 4
‘‘(d) INAPPLICABILITYOFCERTAINPROVISIONS.— 5
(1) The following provisions of this title shall not apply 6
to trial by military commission under this chapter: 7
‘‘(A) Section 810 (article 10 of the Uniform 8
Code of Military Justice), relating to speedy trial, 9
including any rule of courts-martial relating to 10
speedy trial. 11
‘‘(B) Sections 831(a), (b), and (d) (articles 12
31(a), (b), and (d) of the Uniform Code of Military 13
Justice), relating to compulsory self-incrimination. 14
‘‘(C) Section 832 (article 32 of the Uniform 15
Code of Military Justice), relating to pretrial inves-16
tigation. 17
‘‘(2) Other provisions of chapter 47 of this title shall 18
apply to trial by military commission under this chapter 19
only to the extent provided by this chapter. 20
‘‘(e) TREATMENTOFRULINGSANDPRECEDENTS.— 21
The findings, holdings, interpretations, and other prece-22
dents of military commissions under this chapter may not 23
be introduced or considered in any hearing, trial, or other 24
proceeding of a court-martial convened under chapter 47 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
7
•HR 6166 IH
of this title. The findings, holdings, interpretations, and 1
other precedents of military commissions under this chap-2
ter may not form the basis of any holding, decision, or 3
other determination of a court-martial convened under 4
that chapter. 5
‘‘(f) STATUSOFCOMMISSIONSUNDERCOMMONAR-6
TICLE3.—A military commission established under this 7
chapter is a regularly constituted court, affording all the 8
necessary ‘judicial guarantees which are recognized as in-9
dispensable by civilized peoples’ for purposes of common 10
Article 3 of the Geneva Conventions. 11
‘‘(g) GENEVA CONVENTIONS NOT ESTABLISHING 12
SOURCEOFRIGHTS.—No alien unlawful enemy combat-13
ant subject to trial by military commission under this 14
chapter may invoke the Geneva Conventions as a source 15
of rights. 16
‘‘§948c. Persons subject to military commissions 17
‘‘Any alien unlawful enemy combatant is subject to 18
trial by military commission under this chapter. 19
‘‘§948d. Jurisdiction of military commissions 20
‘‘(a) JURISDICTION.—A military commission under 21
this chapter shall have jurisdiction to try any offense made 22
punishable by this chapter or the law of war when com-23
mitted by an alien unlawful enemy combatant before, on, 24
or after September 11, 2001. 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
8
•HR 6166 IH
‘‘(b) LAWFULENEMYCOMBATANTS.—Military com-1
missions under this chapter shall not have jurisdiction 2
over lawful enemy combatants. Lawful enemy combatants 3
who violate the law of war are subject to chapter 47 of 4
this title. Courts-martial established under that chapter 5
shall have jurisdiction to try a lawful enemy combatant 6
for any offense made punishable under this chapter. 7
‘‘(c) DETERMINATIONOFUNLAWFULENEMYCOM-8
BATANT STATUS DISPOSITIVE.—A finding, whether be-9
fore, on, or after the date of the enactment of the Military 10
Commissions Act of 2006, by a Combatant Status Review 11
Tribunal or another competent tribunal established under 12
the authority of the President or the Secretary of Defense 13
that a person is an unlawful enemy combatant is disposi-14
tive for purposes of jurisdiction for trial by military com-15
mission under this chapter. 16
‘‘(d) PUNISHMENTS.—A military commission under 17
this chapter may, under such limitations as the Secretary 18
of Defense may prescribe, adjudge any punishment not 19
forbidden by this chapter, including the penalty of death 20
when authorized under this chapter or the law of war. 21
‘‘§948e. Annual report to congressional committees 22
‘‘(a) ANNUALREPORTREQUIRED.—Not later than 23
December 31 each year, the Secretary of Defense shall 24
submit to the Committees on Armed Services of the Sen-25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
9
•HR 6166 IH
ate and the House of Representatives a report on any 1
trials conducted by military commissions under this chap-2
ter during such year. 3
‘‘(b) FORM.—Each report under this section shall be 4
submitted in unclassified form, but may include a classi-5
fied annex. 6
‘‘SUBCHAPTER II—COMPOSITION OF MILITARY 7
COMMISSIONS 8
‘‘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 mem-
bers.
‘‘§948h. Who may convene military commissions 9
‘‘Military commissions under this chapter may be 10
convened by the Secretary of Defense or by any officer 11
or official of the United States designated by the Secretary 12
for that purpose. 13
‘‘§948i. Who may serve on military commissions 14
‘‘(a) INGENERAL.—Any commissioned officer of the 15
armed forces on active duty is eligible to serve on a mili-16
tary commission under this chapter. 17
‘‘(b) DETAILOFMEMBERS.—When convening a mili-18
tary commission under this chapter, the convening author-19
ity shall detail as members of the commission such mem-20
bers of the armed forces eligible under subsection (a), as 21
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
10
•HR 6166 IH
in the opinion of the convening authority, are best quali-1
fied for the duty by reason of age, education, training, 2
experience, length of service, and judicial temperament. 3
No member of an armed force is eligible to serve as a 4
member of a military commission when such member is 5
the accuser or a witness for the prosecution or has acted 6
as an investigator or counsel in the same case. 7
‘‘(c) EXCUSEOFMEMBERS.—Before a military com-8
mission under this chapter is assembled for the trial of 9
a case, the convening authority may excuse a member 10
from participating in the case. 11
‘‘§948j. Military judge of a military commission 12
‘‘(a) DETAILOFMILITARYJUDGE.—A military judge 13
shall be detailed to each military commission under this 14
chapter. The Secretary of Defense shall prescribe regula-15
tions providing for the manner in which military judges 16
are so detailed to military commissions. The military judge 17
shall preside over each military commission to which he 18
has been detailed. 19
‘‘(b) QUALIFICATIONS.—A military judge shall be a 20
commissioned officer of the armed forces who is a member 21
of the bar of a Federal court, or a member of the bar 22
of the highest court of a State, and who is certified to 23
be qualified for duty under section 826 of this title (article 24
26 of the Uniform Code of Military Justice) as a military 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
11
•HR 6166 IH
judge in general courts-martial by the Judge Advocate 1
General of the armed force of which such military judge 2
is a member. 3
‘‘(c) INELIGIBILITYOFCERTAININDIVIDUALS.—No 4
person is eligible to act as military judge in a case of a 5
military commission under this chapter if he is the accuser 6
or a witness or has acted as investigator or a counsel in 7
the same case. 8
‘‘(d) CONSULTATION WITH MEMBERS; INELIGI-9
BILITYTOVOTE.—A military judge detailed to a military 10
commission under this chapter may not consult with the 11
members of the commission except in the presence of the 12
accused (except as otherwise provided in section 949d of 13
this title), trial counsel, and defense counsel, nor may he 14
vote with the members of the commission. 15
‘‘(e) OTHERDUTIES.—A commissioned officer who 16
is certified to be qualified for duty as a military judge of 17
a military commission under this chapter may perform 18
such other duties as are assigned to him by or with the 19
approval of the Judge Advocate General of the armed 20
force of which such officer is a member or the designee 21
of such Judge Advocate General. 22
‘‘(f) PROHIBITIONONEVALUATIONOFFITNESSBY 23
CONVENINGAUTHORITY.—The convening authority of a 24
military commission under this chapter shall not prepare 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
12
•HR 6166 IH
or review any report concerning the effectiveness, fitness, 1
or efficiency of a military judge detailed to the military 2
commission which relates to his performance of duty as 3
a military judge on the military commission. 4
‘‘§948k. Detail of trial counsel and defense counsel 5
‘‘(a) DETAILOFCOUNSELGENERALLY.—(1) Trial 6
counsel and military defense counsel shall be detailed for 7
each military commission under this chapter. 8
‘‘(2) Assistant trial counsel and assistant and asso-9
ciate defense counsel may be detailed for a military com-10
mission under this chapter. 11
‘‘(3) Military defense counsel for a military commis-12
sion under this chapter shall be detailed as soon as prac-13
ticable after the swearing of charges against the accused. 14
‘‘(4) The Secretary of Defense shall prescribe regula-15
tions providing for the manner in which trial counsel and 16
military defense counsel are detailed for military commis-17
sions under this chapter and for the persons who are au-18
thorized to detail such counsel for such commissions. 19
‘‘(b) TRIAL COUNSEL.—Subject to subsection (e), 20
trial counsel detailed for a military commission under this 21
chapter must be— 22
‘‘(1) a judge advocate (as that term is defined 23
in section 801 of this title (article 1 of the Uniform 24
Code of Military Justice) who— 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
13
•HR 6166 IH
‘‘(A) is a graduate of an accredited law 1
school or is a member of the bar of a Federal 2
court or of the highest court of a State; and 3
‘‘(B) is certified as competent to perform 4
duties as trial counsel before general courts- 5
martial by the Judge Advocate General of the 6
armed force of which he is a member; or 7
‘‘(2) a civilian who— 8
‘‘(A) is a member of the bar of a Federal 9
court or of the highest court of a State; and 10
‘‘(B) is otherwise qualified to practice be-11
fore the military commission pursuant to regu-12
lations prescribed by the Secretary of Defense. 13
‘‘(c) MILITARYDEFENSECOUNSEL.—Subject to sub-14
section (e), military defense counsel detailed for a military 15
commission under this chapter must be a judge advocate 16
(as so defined) who is— 17
‘‘(1) a graduate of an accredited law school or 18
is a member of the bar of a Federal court or of the 19
highest court of a State; and 20
‘‘(2) certified as competent to perform duties as 21
defense counsel before general courts-martial by the 22
Judge Advocate General of the armed force of which 23
he is a member. 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
14
•HR 6166 IH
‘‘(d) CHIEFPROSECUTOR; CHIEFDEFENSECOUN-1
SEL.—(1) The Chief Prosecutor in a military commission 2
under this chapter shall meet the requirements set forth 3
in subsection (b)(1). 4
‘‘(2) The Chief Defense Counsel in a military com-5
mission under this chapter shall meet the requirements set 6
forth in subsection (c)(1). 7
‘‘(e) INELIGIBILITYOFCERTAININDIVIDUALS.—No 8
person who has acted as an investigator, military judge, 9
or member of a military commission under this chapter 10
in any case may act later as trial counsel or military de-11
fense counsel in the same case. No person who has acted 12
for the prosecution before a military commission under 13
this chapter may act later in the same case for the de-14
fense, nor may any person who has acted for the defense 15
before a military commission under this chapter act later 16
in the same case for the prosecution. 17
‘‘§948l. Detail or employment of reporters and inter-18
preters 19
‘‘(a) COURT REPORTERS.—Under such regulations 20
as the Secretary of Defense may prescribe, the convening 21
authority of a military commission under this chapter 22
shall detail to or employ for the commission qualified court 23
reporters, who shall make a verbatim recording of the pro-24
ceedings of and testimony taken before the commission. 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
15
•HR 6166 IH
‘‘(b) INTERPRETERS.—Under such regulations as the 1
Secretary of Defense may prescribe, the convening author-2
ity of a military commission under this chapter may detail 3
to or employ for the military commission interpreters who 4
shall interpret for the commission and, as necessary, for 5
trial counsel and defense counsel and for the accused. 6
‘‘(c) TRANSCRIPT; RECORD.—The transcript of a 7
military commission under this chapter shall be under the 8
control of the convening authority of the commission, who 9
shall also be responsible for preparing the record of the 10
proceedings. 11
‘‘§948m. Number of members; excuse of members; ab-12
sent and additional members 13
‘‘(a) NUMBEROFMEMBERS.—(1) A military com-14
mission under this chapter shall, except as provided in 15
paragraph (2), have at least five members. 16
‘‘(2) In a case in which the accused before a military 17
commission under this chapter may be sentenced to a pen-18
alty of death, the military commission shall have the num-19
ber of members prescribed by section 949m(c) of this title. 20
‘‘(b) EXCUSEOFMEMBERS.—No member of a mili-21
tary commission under this chapter may be absent or ex-22
cused after the military commission has been assembled 23
for the trial of a case unless excused— 24
‘‘(1) as a result of challenge; 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
16
•HR 6166 IH
‘‘(2) by the military judge for physical disability 1
or other good cause; or 2
‘‘(3) by order of the convening authority for 3
good cause. 4
‘‘(c) ABSENTANDADDITIONALMEMBERS.—When-5
ever a military commission under this chapter is reduced 6
below the number of members required by subsection (a), 7
the trial may not proceed unless the convening authority 8
details new members sufficient to provide not less than 9
such number. The trial may proceed with the new mem-10
bers present after the recorded evidence previously intro-11
duced before the members has been read to the military 12
commission in the presence of the military judge, the ac-13
cused (except as provided in section 949d of this title), 14
and counsel for both sides. 15
‘‘SUBCHAPTER III—PRE-TRIAL PROCEDURE 16
‘‘Sec.
‘‘948q. Charges and specifications.
‘‘948r. Compulsory self-incrimination prohibited; treatment of statements ob-
tained by torture and other statements.
‘‘948s. Service of charges.
‘‘§948q. Charges and specifications 17
‘‘(a) CHARGESANDSPECIFICATIONS.—Charges and 18
specifications against an accused in a military commission 19
under this chapter shall be signed by a person subject to 20
chapter 47 of this title under oath before a commissioned 21
officer of the armed forces authorized to administer oaths 22
and shall state— 23
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
17
•HR 6166 IH
‘‘(1) that the signer has personal knowledge of, 1
or reason to believe, the matters set forth therein; 2
and 3
‘‘(2) that they are true in fact to the best of the 4
signer’s knowledge and belief. 5
‘‘(b) NOTICETOACCUSED.—Upon the swearing of 6
the charges and specifications in accordance with sub-7
section (a), the accused shall be informed of the charges 8
against him as soon as practicable. 9
‘‘§948r. Compulsory self-incrimination prohibited; 10
treatment of statements obtained by tor-11
ture and other statements 12
‘‘(a) INGENERAL.—No person shall be required to 13
testify against himself at a proceeding of a military com-14
mission under this chapter. 15
‘‘(b) EXCLUSION OF STATEMENTS OBTAINED BY 16
TORTURE.—A statement obtained by use of torture shall 17
not be admissible in a military commission under this 18
chapter, except against a person accused of torture as evi-19
dence that the statement was made. 20
‘‘(c) STATEMENTSOBTAINEDBEFOREENACTMENT 21
OFDETAINEETREATMENTACTOF2005.—A statement 22
obtained before December 30, 2005 (the date of the enact-23
ment of the Defense Treatment Act of 2005) in which the 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
18
•HR 6166 IH
degree of coercion is disputed may be admitted only if the 1
military judge finds that— 2
‘‘(1) the totality of the circumstances renders 3
the statement reliable and possessing sufficient pro-4
bative value; and 5
‘‘(2) the interests of justice would best be 6
served by admission of the statement into evidence. 7
‘‘(d) STATEMENTS OBTAINEDAFTER ENACTMENT 8
OFDETAINEETREATMENTACTOF2005.—A statement 9
obtained on or after December 30, 2005 (the date of the 10
enactment of the Defense Treatment Act of 2005) in 11
which the degree of coercion is disputed may be admitted 12
only if the military judge finds that— 13
‘‘(1) the totality of the circumstances renders 14
the statement reliable and possessing sufficient pro-15
bative value; 16
‘‘(2) the interests of justice would best be 17
served by admission of the statement into evidence; 18
and 19
‘‘(3) the interrogation methods used to obtain 20
the statement do not violate the cruel, unusual, or 21
inhumane treatment or punishment prohibited by 22
the Fifth, Eighth, and Fourteenth Amendments to 23
the Constitution of the United States. 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
19
•HR 6166 IH
‘‘§948s. Service of charges 1
‘‘The trial counsel assigned to a case before a military 2
commission under this chapter shall cause to be served 3
upon the accused and military defense counsel a copy of 4
the charges upon which trial is to be had. Such charges 5
shall be served in English and, if appropriate, in another 6
language that the accused understands. Such service shall 7
be made sufficiently in advance of trial to prepare a de-8
fense. 9
‘‘SUBCHAPTER IV—TRIAL PROCEDURE 10
‘‘Sec.
‘‘949a. Rules.
‘‘949b. Unlawfully influencing action of military commission.
‘‘949c. Duties of trial counsel and defense counsel.
‘‘949d. Sessions.
‘‘949e. Continuances.
‘‘949f. Challenges.
‘‘949g. Oaths.
‘‘949h. Former jeopardy.
‘‘949i. Pleas of the accused.
‘‘949j. Opportunity to obtain witnesses and other evidence.
‘‘949k. Defense of lack of mental responsibility.
‘‘949l. Voting and rulings.
‘‘949m. Number of votes required.
‘‘949n. Military commission to announce action.
‘‘949o. Record of trial.
‘‘§949a. Rules 11
‘‘(a) PROCEDURESANDRULESOFEVIDENCE.—Pre-12
trial, trial, and post-trial procedures, including elements 13
and modes of proof, for cases triable by military commis-14
sion under this chapter may be prescribed by the Secretary 15
of Defense, in consultation with the Attorney General. 16
Such procedures shall, so far as the Secretary considers 17
practicable or consistent with military or intelligence ac-18
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
20
•HR 6166 IH
tivities, apply the principles of law and the rules of evi-1
dence in trial by general courts-martial. Such procedures 2
and rules of evidence may not be contrary to or incon-3
sistent with this chapter. 4
‘‘(b) RULESFORMILITARYCOMMISSION.—(1) Not-5
withstanding any departures from the law and the rules 6
of evidence in trial by general courts-martial authorized 7
by subsection (a), the procedures and rules of evidence in 8
trials by military commission under this chapter shall in-9
clude the following: 10
‘‘(A) The accused shall be permitted to present 11
evidence in his defense, to cross-examine the wit-12
nesses who testify against him, and to respond to 13
evidence admitted against him on the issue of guilt 14
or innocence and for sentencing, as provided for by 15
this chapter. 16
‘‘(B) The accused shall be present at all ses-17
sions of the military commission (other than those 18
for deliberations or voting), except when excluded 19
under section 949d of this title. 20
‘‘(C) The accused shall receive the assistance of 21
counsel as provided for by section 948k. 22
‘‘(D) The accused shall be permitted to rep-23
resent himself, as provided for by paragraph (3). 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
21
•HR 6166 IH
‘‘(2) In establishing procedures and rules of evidence 1
for military commission proceedings, the Secretary of De-2
fense may prescribe the following provisions: 3
‘‘(A) Evidence shall be admissible if the mili-4
tary judge determines that the evidence would have 5
probative value to a reasonable person. 6
‘‘(B) Evidence shall not be excluded from trial 7
by military commission on the grounds that the evi-8
dence was not seized pursuant to a search warrant 9
or other authorization. 10
‘‘(C) A statement of the accused that is other-11
wise admissible shall not be excluded from trial by 12
military commission on grounds of alleged coercion 13
or compulsory self-incrimination so long as the evi-14
dence complies with the provisions of section 948r of 15
this title. 16
‘‘(D) Evidence shall be admitted as authentic so 17
long as— 18
‘‘(i) the military judge of the military com-19
mission determines that there is sufficient basis 20
to find that the evidence is what it is claimed 21
to be; and 22
‘‘(ii) the military judge instructs the mem-23
bers that they may consider any issue as to au-24
thentication or identification of evidence in de-25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
22
•HR 6166 IH
termining the weight, if any, to be given to the 1
evidence. 2
‘‘(E)(i) Except as provided in clause (ii), hear-3
say evidence not otherwise admissible under the 4
rules of evidence applicable in trial by general 5
courts-martial may be admitted in a trial by military 6
commission if the proponent of the evidence makes 7
known to the adverse party, sufficiently in advance 8
to provide the adverse party with a fair opportunity 9
to meet the evidence, the intention of the proponent 10
to offer the evidence, and the particulars of the evi-11
dence (including information on the general cir-12
cumstances under which the evidence was obtained). 13
The disclosure of evidence under the preceding sen-14
tence is subject to the requirements and limitations 15
applicable to the disclosure of classified information 16
in section 949j(c) of this title. 17
‘‘(ii) Hearsay evidence not otherwise admissible 18
under the rules of evidence applicable in trial by 19
general courts-martial shall not be admitted in a 20
trial by military commission if the party opposing 21
the admission of the evidence demonstrates that the 22
evidence is unreliable or lacking in probative value. 23
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
23
•HR 6166 IH
‘‘(F) The military judge shall exclude any evi-1
dence the probative value of which is substantially 2
outweighed— 3
‘‘(i) by the danger of unfair prejudice, con-4
fusion of the issues, or misleading the commis-5
sion; or 6
‘‘(ii) by considerations of undue delay, 7
waste of time, or needless presentation of cu-8
mulative evidence. 9
‘‘(3)(A) The accused in a military commission under 10
this chapter who exercises the right to self-representation 11
under paragraph (1)(D) shall conform his deportment and 12
the conduct of the defense to the rules of evidence, proce-13
dure, and decorum applicable to trials by military commis-14
sion. 15
‘‘(B) Failure of the accused to conform to the rules 16
described in subparagraph (A) may result in a partial or 17
total revocation by the military judge of the right of self- 18
representation under paragraph (1)(D). In such case, the 19
detailed defense counsel of the accused or an appropriately 20
authorized civilian counsel shall perform the functions nec-21
essary for the defense. 22
‘‘(c) DELEGATION OF AUTHORITY TO PRESCRIBE 23
REGULATIONS.—The Secretary of Defense may delegate 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
24
•HR 6166 IH
the authority of the Secretary to prescribe regulations 1
under this chapter. 2
‘‘(d) NOTIFICATION TO CONGRESSIONAL COMMIT-3
TEESOFCHANGESTOPROCEDURES.—Not later than 60 4
days before the date on which any proposed modification 5
of the procedures in effect for military commissions under 6
this chapter goes into effect, the Secretary of Defense 7
shall submit to the Committee on Armed Services of the 8
Senate and the Committee on Armed Services of the 9
House of Representatives a report describing the modifica-10
tion. 11
‘‘§949b. Unlawfully influencing action of military 12
commission 13
‘‘(a) INGENERAL.—(1) No authority convening a 14
military commission under this chapter may censure, rep-15
rimand, or admonish the military commission, or any 16
member, military judge, or counsel thereof, with respect 17
to the findings or sentence adjudged by the military com-18
mission, or with respect to any other exercises of its or 19
his functions in the conduct of the proceedings. 20
‘‘(2) No person may attempt to coerce or, by any un-21
authorized means, influence— 22
‘‘(A) the action of a military commission under 23
this chapter, or any member thereof, in reaching the 24
findings or sentence in any case; 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
25
•HR 6166 IH
‘‘(B) the action of any convening, approving, or 1
reviewing authority with respect to his judicial acts; 2
or 3
‘‘(C) the exercise of professional judgment by 4
trial counsel or defense counsel. 5
‘‘(3) Paragraphs (1) and (2) do not apply with re-6
spect to— 7
‘‘(A) general instructional or informational 8
courses in military justice if such courses are de-9
signed solely for the purpose of instructing members 10
of a command in the substantive and procedural as-11
pects of military commissions; or 12
‘‘(B) statements and instructions given in open 13
proceedings by a military judge or counsel. 14
‘‘(b) PROHIBITIONONCONSIDERATIONOFACTIONS 15
ONCOMMISSIONINEVALUATIONOFFITNESS.—In the 16
preparation of an effectiveness, fitness, or efficiency report 17
or any other report or document used in whole or in part 18
for the purpose of determining whether a commissioned 19
officer of the armed forces is qualified to be advanced in 20
grade, or in determining the assignment or transfer of any 21
such officer or whether any such officer should be retained 22
on active duty, no person may— 23
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
26
•HR 6166 IH
‘‘(1) consider or evaluate the performance of 1
duty of any member of a military commission under 2
this chapter; or 3
‘‘(2) give a less favorable rating or evaluation 4
to any commissioned officer because of the zeal with 5
which such officer, in acting as counsel, represented 6
any accused before a military commission under this 7
chapter. 8
‘‘§949c. Duties of trial counsel and defense counsel 9
‘‘(a) TRIALCOUNSEL.—The trial counsel of a mili-10
tary commission under this chapter shall prosecute in the 11
name of the United States. 12
‘‘(b) DEFENSECOUNSEL.—(1) The accused shall be 13
represented in his defense before a military commission 14
under this chapter as provided in this subsection. 15
‘‘(2) The accused shall be represented by military 16
counsel detailed under section 948k of this title. 17
‘‘(3) The accused may be represented by civilian 18
counsel if retained by the accused, but only if such civilian 19
counsel— 20
‘‘(A) is a United States citizen; 21
‘‘(B) is admitted to the practice of law in a 22
State, district, or possession of the United States or 23
before a Federal court; 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
27
•HR 6166 IH
‘‘(C) has not been the subject of any sanction 1
of disciplinary action by any court, bar, or other 2
competent governmental authority for relevant mis-3
conduct; 4
‘‘(D) has been determined to be eligible for ac-5
cess to classified information that is classified at the 6
level Secret or higher; and 7
‘‘(E) has signed a written agreement to comply 8
with all applicable regulations or instructions for 9
counsel, including any rules of court for conduct 10
during the proceedings. 11
‘‘(4) Civilian defense counsel shall protect any classi-12
fied information received during the course of representa-13
tion of the accused in accordance with all applicable law 14
governing the protection of classified information and may 15
not divulge such information to any person not authorized 16
to receive it. 17
‘‘(5) If the accused is represented by civilian counsel, 18
military counsel detailed shall act as associate counsel. 19
‘‘(6) The accused is not entitled to be represented by 20
more than one military counsel. However, the person au-21
thorized under regulations prescribed under section 948k 22
of this title to detail counsel, in that person’s sole discre-23
tion, may detail additional military counsel to represent 24
the accused. 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
28
•HR 6166 IH
‘‘(7) Defense counsel may cross-examine each witness 1
for the prosecution who testifies before a military commis-2
sion under this chapter. 3
‘‘§949d. Sessions 4
‘‘(a) SESSIONS WITHOUT PRESENCE OF MEM-5
BERS.—(1) At any time after the service of charges which 6
have been referred for trial by military commission under 7
this chapter, the military judge may call the military com-8
mission into session without the presence of the members 9
for the purpose of— 10
‘‘(A) hearing and determining motions raising 11
defenses or objections which are capable of deter-12
mination without trial of the issues raised by a plea 13
of not guilty; 14
‘‘(B) hearing and ruling upon any matter which 15
may be ruled upon by the military judge under this 16
chapter, whether or not the matter is appropriate for 17
later consideration or decision by the members; 18
‘‘(C) if permitted by regulations prescribed by 19
the Secretary of Defense, receiving the pleas of the 20
accused; and 21
‘‘(D) performing any other procedural function 22
which may be performed by the military judge under 23
this chapter or under rules prescribed pursuant to 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
29
•HR 6166 IH
section 949a of this title and which does not require 1
the presence of the members. 2
‘‘(2) Except as provided in subsections (c) and (e), 3
any proceedings under paragraph (1) shall— 4
‘‘(A) be conducted in the presence of the ac-5
cused, defense counsel, and trial counsel; and 6
‘‘(B) be made part of the record. 7
‘‘(b) PROCEEDINGS INPRESENCEOF ACCUSED.— 8
Except as provided in subsections (c) and (e), all pro-9
ceedings of a military commission under this chapter, in-10
cluding any consultation of the members with the military 11
judge or counsel, shall— 12
‘‘(1) be in the presence of the accused, defense 13
counsel, and trial counsel; and 14
‘‘(2) be made a part of the record. 15
‘‘(c) DELIBERATIONORVOTEOFMEMBERS.—When 16
the members of a military commission under this chapter 17
deliberate or vote, only the members may be present. 18
‘‘(d) CLOSUREOFPROCEEDINGS.—(1) The military 19
judge may close to the public all or part of the proceedings 20
of a military commission under this chapter, but only in 21
accordance with this subsection. 22
‘‘(2) The military judge may close to the public all 23
or a portion of the proceedings under paragraph (1) only 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
30
•HR 6166 IH
upon making a specific finding that such closure is nec-1
essary to— 2
‘‘(A) protect information the disclosure of which 3
could reasonably be expected to cause damage to the 4
national security, including intelligence or law en-5
forcement sources, methods, or activities; or 6
‘‘(B) ensure the physical safety of individuals. 7
‘‘(3) A finding under paragraph (2) may be based 8
upon a presentation, including a presentation ex parte or 9
in camera, by either trial counsel or defense counsel. 10
‘‘(e) EXCLUSIONOFACCUSEDFROMCERTAINPRO-11
CEEDINGS.—The military judge may exclude the accused 12
from any portion of a proceeding upon a determination 13
that, after being warned by the military judge, the accused 14
persists in conduct that justifies exclusion from the court-15
room— 16
‘‘(1) to ensure the physical safety of individuals; 17
or 18
‘‘(2) to prevent disruption of the proceedings by 19
the accused. 20
‘‘(f) PROTECTIONOFCLASSIFIEDINFORMATION.— 21
‘‘(1) NATIONAL SECURITY PRIVILEGE.—(A) 22
Classified information shall be protected and is privi-23
leged from disclosure if disclosure would be detri-24
mental to the national security. The rule in the pre-25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
31
•HR 6166 IH
ceding sentence applies to all stages of the pro-1
ceedings of military commissions under this chapter. 2
‘‘(B) The privilege referred to in subparagraph 3
(A) may be claimed by the head of the executive or 4
military department or government agency con-5
cerned based on a finding by the head of that de-6
partment or agency that— 7
‘‘(i) the information is properly classified; 8
and 9
‘‘(ii) disclosure of the information would be 10
detrimental to the national security. 11
‘‘(C) A person who may claim the privilege re-12
ferred to in subparagraph (A) may authorize a rep-13
resentative, witness, or trial counsel to claim the 14
privilege and make the finding described in subpara-15
graph (B) on behalf of such person. The authority 16
of the representative, witness, or trial counsel to do 17
so is presumed in the absence of evidence to the con-18
trary. 19
‘‘(2) INTRODUCTIONOFCLASSIFIEDINFORMA-20
TION.— 21
‘‘(A) ALTERNATIVESTODISCLOSURE.—To 22
protect classified information from disclosure, 23
the military judge, upon motion of trial counsel, 24
shall authorize, to the extent practicable— 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
32
•HR 6166 IH
‘‘(i) the deletion of specified items of 1
classified information from documents to 2
be introduced as evidence before the mili-3
tary commission; 4
‘‘(ii) the substitution of a portion or 5
summary of the information for such clas-6
sified documents; or 7
‘‘(iii) the substitution of a statement 8
of relevant facts that the classified infor-9
mation would tend to prove. 10
‘‘(B) PROTECTIONOFSOURCES, METHODS, 11
ORACTIVITIES.—The military judge, upon mo-12
tion of trial counsel, shall permit trial counsel 13
to introduce otherwise admissible evidence be-14
fore the military commission, while protecting 15
from disclosure the sources, methods, or activi-16
ties by which the United States acquired the 17
evidence if the military judge finds that (i) the 18
sources, methods, or activities by which the 19
United States acquired the evidence are classi-20
fied, and (ii) the evidence is reliable. The mili-21
tary judge may require trial counsel to present 22
to the military commission and the defense, to 23
the extent practicable and consistent with na-24
tional security, an unclassified summary of the 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
33
•HR 6166 IH
sources, methods, or activities by which the 1
United States acquired the evidence. 2
‘‘(C) ASSERTIONOFNATIONAL SECURITY 3
PRIVILEGEATTRIAL.—During the examination 4
of any witness, trial counsel may object to any 5
question, line of inquiry, or motion to admit evi-6
dence that would require the disclosure of clas-7
sified information. Following such an objection, 8
the military judge shall take suitable action to 9
safeguard such classified information. Such ac-10
tion may include the review of trial counsel’s 11
claim of privilege by the military judge in cam-12
era and on an ex parte basis, and the delay of 13
proceedings to permit trial counsel to consult 14
with the department or agency concerned as to 15
whether the national security privilege should 16
be asserted. 17
‘‘(3) CONSIDERATIONOF PRIVILEGE ANDRE-18
LATEDMATERIALS.—A claim of privilege under this 19
subsection, and any materials submitted in support 20
thereof, shall, upon request of the Government, be 21
considered by the military judge in camera and shall 22
not be disclosed to the accused. 23
‘‘(4) ADDITIONAL REGULATIONS.—The Sec-24
retary of Defense may prescribe additional regula-25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
34
•HR 6166 IH
tions, consistent with this subsection, for the use 1
and protection of classified information during pro-2
ceedings of military commissions under this chapter. 3
A report on any regulations so prescribed, or modi-4
fied, shall be submitted to the Committees on Armed 5
Services of the Senate and the House of Representa-6
tives not later than 60 days before the date on which 7
such regulations or modifications, as the case may 8
be, go into effect. 9
‘‘§949e. Continuances 10
‘‘The military judge in a military commission under 11
this chapter may, for reasonable cause, grant a continu-12
ance to any party for such time, and as often, as may 13
appear to be just. 14
‘‘§949f. Challenges 15
‘‘(a) CHALLENGES AUTHORIZED.—The military 16
judge and members of a military commission under this 17
chapter may be challenged by the accused or trial counsel 18
for cause stated to the commission. The military judge 19
shall determine the relevance and validity of challenges for 20
cause. The military judge may not receive a challenge to 21
more than one person at a time. Challenges by trial coun-22
sel shall ordinarily be presented and decided before those 23
by the accused are offered. 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
35
•HR 6166 IH
‘‘(b) PEREMPTORY CHALLENGES.—Each accused 1
and the trial counsel are entitled to one peremptory chal-2
lenge. The military judge may not be challenged except 3
for cause. 4
‘‘(c) CHALLENGES AGAINST ADDITIONAL MEM-5
BERS.—Whenever additional members are detailed to a 6
military commission under this chapter, and after any 7
challenges for cause against such additional members are 8
presented and decided, each accused and the trial counsel 9
are entitled to one peremptory challenge against members 10
not previously subject to peremptory challenge. 11
‘‘§949g. Oaths 12
‘‘(a) INGENERAL.—(1) Before performing their re-13
spective duties in a military commission under this chap-14
ter, military judges, members, trial counsel, defense coun-15
sel, reporters, and interpreters shall take an oath to per-16
form their duties faithfully. 17
‘‘(2) The form of the oath required by paragraph (1), 18
the time and place of the taking thereof, the manner of 19
recording the same, and whether the oath shall be taken 20
for all cases in which duties are to be performed or for 21
a particular case, shall be as prescribed in regulations of 22
the Secretary of Defense. Those regulations may provide 23
that— 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
36
•HR 6166 IH
‘‘(A) an oath to perform faithfully duties as a 1
military judge, trial counsel, or defense counsel may 2
be taken at any time by any judge advocate or other 3
person certified to be qualified or competent for the 4
duty; and 5
‘‘(B) if such an oath is taken, such oath need 6
not again be taken at the time the judge advocate 7
or other person is detailed to that duty. 8
‘‘(b) WITNESSES.—Each witness before a military 9
commission under this chapter shall be examined on oath. 10
‘‘§949h. Former jeopardy 11
‘‘(a) INGENERAL.—No person may, without his con-12
sent, be tried by a military commission under this chapter 13
a second time for the same offense. 14
‘‘(b) SCOPEOFTRIAL.—No proceeding in which the 15
accused has been found guilty by military commission 16
under this chapter upon any charge or specification is a 17
trial in the sense of this section until the finding of guilty 18
has become final after review of the case has been fully 19
completed. 20
‘‘§949i. Pleas of the accused 21
‘‘(a) ENTRYOFPLEAOFNOTGUILTY.—If an ac-22
cused in a military commission under this chapter after 23
a plea of guilty sets up matter inconsistent with the plea, 24
or if it appears that the accused has entered the plea of 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
37
•HR 6166 IH
guilty through lack of understanding of its meaning and 1
effect, or if the accused fails or refuses to plead, a plea 2
of not guilty shall be entered in the record, and the mili-3
tary commission shall proceed as though the accused had 4
pleaded not guilty. 5
‘‘(b) FINDING OF GUILT AFTER GUILTY PLEA.— 6
With respect to any charge or specification to which a plea 7
of guilty has been made by the accused in a military com-8
mission under this chapter and accepted by the military 9
judge, a finding of guilty of the charge or specification 10
may be entered immediately without a vote. The finding 11
shall constitute the finding of the commission unless the 12
plea of guilty is withdrawn prior to announcement of the 13
sentence, in which event the proceedings shall continue as 14
though the accused had pleaded not guilty. 15
‘‘§949j. Opportunity to obtain witnesses and other 16
evidence 17
‘‘(a) RIGHTOFDEFENSECOUNSEL.—Defense coun-18
sel in a military commission under this chapter shall have 19
a reasonable opportunity to obtain witnesses and other evi-20
dence as provided in regulations prescribed by the Sec-21
retary of Defense. 22
‘‘(b) PROCESSFORCOMPULSION.—Process issued in 23
a military commission under this chapter to compel wit-24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
38
•HR 6166 IH
nesses to appear and testify and to compel the production 1
of other evidence— 2
‘‘(1) shall be similar to that which courts of the 3
United States having criminal jurisdiction may law-4
fully issue; and 5
‘‘(2) shall run to any place where the United 6
States shall have jurisdiction thereof. 7
‘‘(c) PROTECTIONOFCLASSIFIEDINFORMATION.— 8
(1) With respect to the discovery obligations of trial coun-9
sel under this section, the military judge, upon motion of 10
trial counsel, shall authorize, to the extent practicable— 11
‘‘(A) the deletion of specified items of classified 12
information from documents to be made available to 13
the accused; 14
‘‘(B) the substitution of a portion or summary 15
of the information for such classified documents; or 16
‘‘(C) the substitution of a statement admitting 17
relevant facts that the classified information would 18
tend to prove. 19
‘‘(2) The military judge, upon motion of trial counsel, 20
shall authorize trial counsel, in the course of complying 21
with discovery obligations under this section, to protect 22
from disclosure the sources, methods, or activities by 23
which the United States acquired evidence if the military 24
judge finds that the sources, methods, or activities by 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
39
•HR 6166 IH
which the United States acquired such evidence are classi-1
fied. The military judge may require trial counsel to pro-2
vide, to the extent practicable, an unclassified summary 3
of the sources, methods, or activities by which the United 4
States acquired such evidence. 5
‘‘(d) EXCULPATORY EVIDENCE.—(1) As soon as 6
practicable, trial counsel shall disclose to the defense the 7
existence of any evidence known to trial counsel that rea-8
sonably tends to exculpate the accused. Where exculpatory 9
evidence is classified, the accused shall be provided with 10
an adequate substitute in accordance with the procedures 11
under subsection (c). 12
‘‘(2) In this subsection, the term ‘evidence known to 13
trial counsel’, in the case of exculpatory evidence, means 14
exculpatory evidence that the prosecution would be re-15
quired to disclose in a trial by general court-martial under 16
chapter 47 of this title. 17
‘‘§949k. Defense of lack of mental responsibility 18
‘‘(a) AFFIRMATIVEDEFENSE.—It is an affirmative 19
defense in a trial by military commission under this chap-20
ter that, at the time of the commission of the acts consti-21
tuting the offense, the accused, as a result of a severe 22
mental disease or defect, was unable to appreciate the na-23
ture and quality or the wrongfulness of the acts. Mental 24
disease or defect does not otherwise constitute a defense. 25
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
40
•HR 6166 IH
‘‘(b) BURDENOFPROOF.—The accused in a military 1
commission under this chapter has the burden of proving 2
the defense of lack of mental responsibility by clear and 3
convincing evidence. 4
‘‘(c) FINDINGS FOLLOWING ASSERTION OF DE-5
FENSE.—Whenever lack of mental responsibility of the ac-6
cused with respect to an offense is properly at issue in 7
a military commission under this chapter, the military 8
judge shall instruct the members of the commission as to 9
the defense of lack of mental responsibility under this sec-10
tion and shall charge them to find the accused— 11
‘‘(1) guilty; 12
‘‘(2) not guilty; or 13
‘‘(3) subject to subsection (d), not guilty by rea-14
son of lack of mental responsibility. 15
‘‘(d) MAJORITY VOTEREQUIREDFOR FINDING.— 16
The accused shall be found not guilty by reason of lack 17
of mental responsibility under subsection (c)(3) only if a 18
majority of the members present at the time the vote is 19
taken determines that the defense of lack of mental re-20
sponsibility has been established. 21
‘‘§949l. Voting and rulings 22
‘‘(a) VOTEBYSECRETWRITTENBALLOT.—Voting 23
by members of a military commission under this chapter 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
41
•HR 6166 IH
on the findings and on the sentence shall be by secret writ-1
ten ballot. 2
‘‘(b) RULINGS.—(1) The military judge in a military 3
commission under this chapter shall rule upon all ques-4
tions of law, including the admissibility of evidence and 5
all interlocutory questions arising during the proceedings. 6
‘‘(2) Any ruling made by the military judge upon a 7
question of law or an interlocutory question (other than 8
the factual issue of mental responsibility of the accused) 9
is conclusive and constitutes the ruling of the military 10
commission. However, a military judge may change his 11
ruling at any time during the trial. 12
‘‘(c) INSTRUCTIONSPRIORTOVOTE.—Before a vote 13
is taken of the findings of a military commission under 14
this chapter, the military judge shall, in the presence of 15
the accused and counsel, instruct the members as to the 16
elements of the offense and charge the members— 17
‘‘(1) that the accused must be presumed to be 18
innocent until his guilt is established by legal and 19
competent evidence beyond a reasonable doubt; 20
‘‘(2) that in the case being considered, if there 21
is a reasonable doubt as to the guilt of the accused, 22
the doubt must be resolved in favor of the accused 23
and he must be acquitted; 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
42
•HR 6166 IH
‘‘(3) that, if there is reasonable doubt as to the 1
degree of guilt, the finding must be in a lower de-2
gree as to which there is no reasonable doubt; and 3
‘‘(4) that the burden of proof to establish the 4
guilt of the accused beyond a reasonable doubt is 5
upon the United States. 6
‘‘§949m. Number of votes required 7
‘‘(a) CONVICTION.—No person may be convicted by 8
a military commission under this chapter of any offense, 9
except as provided in section 949i(b) of this title or by 10
concurrence of two-thirds of the members present at the 11
time the vote is taken. 12
‘‘(b) SENTENCES.—(1) No person may be sentenced 13
by a military commission to suffer death, except insofar 14
as— 15
‘‘(A) the penalty of death is expressly author-16
ized under this chapter or the law of war for an of-17
fense of which the accused has been found guilty; 18
‘‘(B) trial counsel expressly sought the penalty 19
of death by filing an appropriate notice in advance 20
of trial; 21
‘‘(C) the accused is convicted of the offense by 22
the concurrence of all the members present at the 23
time the vote is taken; and 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
43
•HR 6166 IH
‘‘(D) all the members present at the time the 1
vote is taken concur in the sentence of death. 2
‘‘(2) No person may be sentenced to life imprison-3
ment, or to confinement for more than 10 years, by a mili-4
tary commission under this chapter except by the concur-5
rence of three-fourths of the members present at the time 6
the vote is taken. 7
‘‘(3) All other sentences shall be determined by a 8
military commission by the concurrence of two-thirds of 9
the members present at the time the vote is taken. 10
‘‘(c) NUMBEROFMEMBERS REQUIREDFORPEN-11
ALTYOFDEATH.—(1) Except as provided in paragraph 12
(2), in a case in which the penalty of death is sought, the 13
number of members of the military commission under this 14
chapter shall be not less than 12. 15
‘‘(2) In any case described in paragraph (1) in which 16
12 members are not reasonably available because of phys-17
ical conditions or military exigencies, the convening au-18
thority shall specify a lesser number of members for the 19
military commission (but not fewer than 9 members), and 20
the military commission may be assembled, and the trial 21
held, with not fewer than the number of members so speci-22
fied. In such a case, the convening authority shall make 23
a detailed written statement, to be appended to the record, 24
VerDate Aug 31 2005 03:41 Sep 26, 2006 Jkt 049196 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:..BILLS..H6166.IH H6166
jc
o
rc
o
ra
n
o
n
P
RO
D
PC
62
w
ith
B
IL
LS
44
•HR 6166 IH
stating why a greater number of members were not rea-1
sonably available. 2
‘‘§949n. Military commission to announce action 3
‘‘A military commission under this chapter shall an-4
nounce its findings and sentence to the parties as soon 5
as determined. 6
‘‘§949o. Record of trial 7
‘‘(a) RECORD; AUTHENTICATION.—Each military 8
commission under this chapter shall keep a separate, ver-9
batim, record of the proceedings in each case brought be-10
fore it, and the record shall be authenticated by the signa-11
ture of the military judge. If the record cannot be authen-12
ticated by the military judge by reason of his
