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Politics > Politics-USA |
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| Date: |
01 Oct 2006 10:05:46 PM |
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USA Torture Capitol Of The World: US Sexually Torturing Children |
109th CONGRESS
2d Session
H. R. 6054
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
September 12, 2006
Mr. HUNTER (for himself, Mr. BOEHNER, Mr. SENSENBRENNER, Mr. CALVERT, Mrs.
MILLER of Michigan, Mr. MILLER of Florida, Mr. SHUSTER, Mr. FRANKS of
Arizona, Mr. WILSON of South Carolina, Mr. SAXTON, Mr. PORTER, Mr. KLINE,
Mr. HEFLEY, Mr. HAYES, Mr. SWEENEY, Mr. CHOCOLA, and Mr. LOBIONDO)
introduced the following bill; which was referred to the Committee on Armed
Services, and in addition 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 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:
1. Short title; table of contents.
2. Construction of Presidential authority to establish military commissions.
3. Military commissions.
4. Clarification of conduct constituting war crime offense under Federal
Criminal Code.
5. Judicial review.
6. Satisfaction of treaty obligations.
7. Revisions to Detainee Treatment Act of 2005 relating to protection of
certain United States Government personnel.
8. Retroactive applicability.
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 to
establish military commissions on the battlefield 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
--948a
--948h
--948q
--949a
--949s
--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.
`Sec. 948a. Definitions
`In this chapter:
`(1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful enemy combatant' means
an individual determined by or under the authority of the President or the
Secretary of Defense--
`(i) to be part of or affiliated with a force or organization (including al
Qaeda, the Taliban, any international terrorist organization, or associated
forces) that is engaged in hostilities against the United States or its
co-belligerents in violation of the law of war;
`(ii) to have committed a hostile act in aid of such a force or organization
so engaged; or
`(iii) to have supported hostilities in aid of such a force or organization
so engaged.
`(B) Such term includes any individual determined by a Combatant Status
Review Tribunal before the date of the enactment of the Military Commissions
Act of 2006 to have been properly detained as an enemy combatant.
`(C) Such term does not include any alien determined by the President or the
Secretary of Defense (whether on an individualized or collective basis), or
by any competent tribunal established under their authority, to be--
`(i) a lawful enemy combatant (including a prisoner of war); or
`(ii) a protected person whose trial by a military commission under this
chapter would be inconsistent with Articles 64 through 76 of the Geneva
Convention Relative to the Protection of Civilian Persons in Time of War of
August 12, 1949.
`(D) For purposes of subparagraph (C)(ii), the term `protected person'
refers to the category of persons described in Article 4 of the Geneva
Convention Relative to the Protection of Civilian Persons in Time of War of
August 12, 1949.
`(2) GENEVA CONVENTIONS- The term `Geneva Conventions' means the
international conventions signed at Geneva on August 12, 1949, including
Common Article 3.
`(3) CLASSIFIED INFORMATION- The term `classified information' means the
following:
`(A) Any information or material that has been determined by the United
States Government pursuant to statute, Executive order, or regulation to
require protection against unauthorized disclosure for reasons of national
security.
`(B) Any restricted data, as that term is defined in section 11 y. of the
Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).
`(4) ALIEN- The term `alien' means an individual who is not a citizen of the
United States.
`Sec. 948b. Military commissions generally
`(a) Authority for Military Commissions Under This Chapter- The President is
authorized to establish military commissions for violations of offenses
triable by military commission as provided in this chapter.
`(b) Construction of Provisions- The procedures for military commissions set
forth in this chapter are based upon the procedures for trial by general
courts-martial under chapter 47 of this title (the Uniform Code of Military
Justice). Chapter 47 of this title, including any construction or
application of such chapter and any administrative practice under such
chapter, does not apply to trial by military commission under this chapter.
`(c) 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 purposes of common Article 3 of the Geneva
Conventions.
`Sec. 948c. Persons subject to military commissions
`Any alien unlawful enemy combatant is subject to trial by military
commission under this chapter.
`Sec. 948d. Jurisdiction of military commissions
`(a) Jurisdiction- A military commission under this chapter shall have
jurisdiction to try any offense made punishable by this chapter when
committed by an alien unlawful enemy combatant before, on, or after
September 11, 2001.
`(b) Punishments- A military commission under this chapter may, under such
limitations as the Secretary of Defense may prescribe, adjudge any
punishment not forbidden by this chapter, including the penalty of death
when authorized under this chapter.
`Sec. 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 judges.
`948k. Detail of trial counsel and defense counsel.
`948l. Detail or employment of reporters and interpreters.
`948m. Number of members; excuse of members; absent and additional members.
`Sec. 948h. Who may convene military commissions
`Military commissions under this chapter may be convened by the Secretary of
Defense or by any officer or official of the United States designated by the
Secretary for that purpose.
`Sec. 948i Who may serve on military commissions
`(a) In General- Any commissioned officer of the armed forces on active duty
is eligible to serve on a military commission under this chapter.
`(b) Detail of Members- When convening a military commission 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 authority, are fully qualified for the duty by
reason of age, education, training, experience, length of service, and
judicial temperament. No member of an armed force is eligible to serve as a
member of a military commission when such member is the accuser or a witness
for the prosecution or has acted as an investigator or counsel in the same
case.
`(c) Excuse of Members- Before a military commission under this chapter is
assembled for the trial of a case, the convening authority may excuse a
member from participating in the case.
`Sec. 948j. Military judges
`(a) Detail of Military Judge- A military judge shall be detailed to each
military commission under this chapter. The Secretary of Defense shall
prescribe regulations providing for the manner in which military judges are
so detailed to military commissions. The military judge shall preside over
each military commission to which 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.
`Sec. 948k. Detail of trial counsel and defense counsel
`(a) Detail of Counsel Generally- (1) Trial counsel and military defense
counsel shall be detailed for each military commission under this chapter.
`(2) Assistant trial counsel and assistant and associate defense counsel may
be detailed for a military commission under this chapter.
`(3) Military defense counsel for a military commission under this chapter
shall be detailed as soon as practicable after the swearing of charges
against the accused.
`(4) The Secretary of Defense shall prescribe regulations providing for the
manner in which trial counsel and military defense counsel are detailed for
military commissions under this chapter and for the persons who are
authorized to detail such counsel for such commissions.
`(b) Trial Counsel- Subject to subsection (d), trial counsel detailed for a
military commission under this chapter must be--
`(1) a judge advocate (as that term is defined in section 801 of this title
(article 1 of the Uniform Code of Military Justice) who is--
`(A) a graduate of an accredited law school or is a member of the bar of a
Federal court or of the highest court of a State; and
`(B) certified as competent to perform duties as trial counsel before
general courts-martial by the Judge Advocate General of the armed force of
which he is a member; or
`(2) a civilian who is--
`(A) a member of the bar of a Federal court or of the highest court of a
State; and
`(B) otherwise qualified to practice before the military commission pursuant
to regulations prescribed by the Secretary of Defense.
`(c) Military Defense Counsel- Subject to subsection (d), military defense
counsel detailed for a military commission under this chapter must be a
judge advocate (as so defined) who is--
`(1) a graduate of an accredited law school or 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) Ineligibility of Certain Individuals- No person who has acted as an
investigator, military judge, or member of a military commission under this
chapter in any case may act later as trial counsel or military defense
counsel in the same case. No person who has acted for the prosecution before
a military commission under this chapter may act later in the same case for
the defense, nor may any person who has acted for the defense before a
military commission under this chapter act later in the same case for the
prosecution.
`Sec. 948l. Detail or employment of reporters and interpreters
`(a) Court Reporters- Under such regulations as the Secretary of Defense may
prescribe, the convening authority of a military commission under this
chapter shall detail to or employ for the commission qualified court
reporters, who shall make a verbatim 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.
`(c) Transcript; Record- The transcript of a military commission 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.
`Sec. 948m. Number of members; excuse of members; absent and additional
members
`(a) Number of Members- (1) A military commission under this chapter shall,
except as provided in paragraph (2), have at least five members.
`(2) In a case in which the death penalty is sought, the military commission
shall have the number of members prescribed by section 949m(c) of this
title.
`(b) Excuse of Members- No member of a military commission 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.
`Sec. 948q. Charges and specifications
`(a) Charges and Specifications- Charges and specifications against an
accused in a military commission under this chapter shall be signed by a
person subject to chapter 47 of this title under oath before a commissioned
officer of the armed forces authorized to administer oaths and shall state--
`(1) that the signer has personal knowledge of, or reason to believe, the
matters set forth therein; and
`(2) that they are true in fact to the best of the signer's knowledge and
belief.
`(b) Notice to Accused- Upon the swearing of the charges and specifications
in accordance with subsection (a), the accused shall be informed of the
charges against him as soon as practicable.
`Sec. 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, whether or not under color of law, shall not be admissible
against the accused in a military commission under this chapter, except
against a person accused of torture as evidence the statement was made.
`(c) Other Statements- An otherwise admissible statement, including a
statement allegedly obtained by coercion, shall not be admitted in evidence
in a military commission under this chapter if the military judge finds that
the circumstances under which the statement was made render the statement
unreliable or lacking in probative value.
`(d) Torture- In this section, the term `torture' has the meaning given that
term in section 2340 of title 18.
`Sec. 948s. Service of charges
`The trial counsel assigned to a case before a military commission under
this chapter shall cause to be served upon the accused and military defense
counsel a copy of the charges upon which trial is to be had. 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. Session
s.
`949e. Continuances.
`949f. Challenges.
`949g. Oaths.
`949h. Former jeopardy.
`949i. Pleas of the accused.
`949j. Opportunity to obtain witnesses and other evidence.
`949k. Defense of lack of mental responsibility.
`949l. Voting and rulings.
`949m. Number of votes required.
`949n. Military commission to announce action.
`949o. Record of trial.
`Sec. 949a. Rules
`(a) Procedures- Pretrial, trial, and post-trial procedures, including
elements and modes of proof, for cases triable by military commission under
this chapter shall be prescribed by the Secretary of Defense, but may not be
contrary to or inconsistent with this chapter.
`(b) Rules of Evidence- (1) Subject to such exceptions and limitations as
the Secretary may prescribe by regulation, evidence in a military commission
under this chapter shall be admissible if the military judge determines that
the evidence would have probative value to a reasonable person.
`(2) Hearsay evidence is admissible unless the military judge finds that the
circumstances render the evidence unreliable or lacking in probative value.
However, such evidence may be admitted only if the proponent of the evidence
makes the evidence known to the adverse party in advance of trial or
hearing.
`(3) The military judge shall exclude any evidence the probative value of
which is substantially outweighed--
`(A) by the danger of unfair prejudice, confusion of the issues, or
misleading the members of the commission; or
`(B) by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
`(c) 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.
`Sec. 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 the action of a military commission under this chapter, or any
member thereof, in reaching the findings or sentence in any case, or the
action of any convening, approving, or reviewing authority with respect to
his judicial acts.
`(3) Paragraphs (1) and (2) do not apply with respect to--
`(A) general instructional or informational courses in military justice if
such courses are designed solely for the purpose of instructing members of a
command in the substantive and procedural aspects of military commissions;
or
`(B) statements and instructions given in open proceedings by a military
judge or counsel.
`(b) Prohibition on Consideration of Actions on Commission in Evaluation of
Fitness- In the preparation of an effectiveness, fitness, or efficiency
report or any other report or document used in whole or in part for the
purpose of determining whether a commissioned officer of the armed forces is
qualified to be advanced in grade, or in determining the assignment or
transfer of any such officer or whether any such officer should be retained
on active duty, no person may--
`(1) consider or evaluate the performance of duty of any member of a
military commission under this chapter; or
`(2) give a less favorable rating or evaluation to any commissioned officer
because of the zeal with which such officer, in acting as counsel,
represented any accused before a military commission under this chapter.
`Sec. 949c. Duties of trial counsel and defense counsel
`(a) Trial Counsel- The trial counsel of a military commission under this
chapter shall prosecute in the name of the United States.
`(b) Defense Counsel- (1) The accused shall be represented in 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 classified 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 protection 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, military counsel
detailed 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 military counsel to represent the accused.
`(7) Defense counsel may cross-examine each witness for the prosecution who
testifies before a military commission under this chapter.
`Sec. 949d. Sessions
`(a) Sessions Without Presence of Members- (1) At any time after the service
of charges which have been referred for trial by military commission under
this chapter, the military judge may call the military commission into
session without the presence of the members for the purpose of--
`(A) hearing and determining motions raising defenses or objections which
are capable of determination without trial of the issues raised by a plea of
not guilty;
`(B) hearing and ruling upon any matter which may be ruled upon by the
military judge under this chapter, whether or not the matter is appropriate
for later consideration or decision by the members;
`(C) 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), (d), and (e), any proceedings
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 provided in subsections
(c) and (e), all proceedings of a military commission 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)(A) The military judge may close to the public all or a portion of the
proceedings of a military commission under paragraph (1), or permit the
admission of classified information outside the presence of the accused,
based upon a presentation (including an ex parte or in camera presentation)
by either the prosecution or the defense.
`(B) Trial counsel may not make a presentation requesting the admission of
classified information outside the presence of the accused unless the head
of the department or agency which has control over the matter (after
personal consideration by that officer) certifies in writing to the military
judge that--
`(i) the disclosure of the classified information to the accused could
reasonably be expected to prejudice the national security; and
`(ii) that such evidence has been declassified to the maximum extent
possible, consistent with the requirements of national security.
`(3) The military judge may close to the public all or a portion of the
proceedings of a military commission under paragraph (1) upon making a
specific finding that such closure is necessary to--
`(A) protect information the disclosure of which could reasonably be
expected to cause identifiable damage to the public interest or the national
security, including intelligence or law enforcement sources, methods, or
activities; or
`(B) ensure the physical safety of individuals.
`(e) Exclusion of Accused From Certain Proceedings- (1) The military judge
may not exclude the accused from any portion of the proceeding except upon a
specific finding of each of the following:
`(A) That the exclusion of the accused--
`(i) is necessary to protect classified information the disclosure of which
to the accused could reasonably be expected to cause identifiable damage to
the national security, including intelligence or law enforcement sources,
methods, or activities;
`(ii) is necessary to ensure the physical safety of individuals; or
`(iii) is necessary to prevent disruption of the proceedings by the accused.
`(B) That the exclusion of the accused--
`(i) is no broader than necessary; and
`(ii) will not deprive the accused of a full and fair trial.
`(2)(A) A finding under paragraph (1) may be based upon a presentation,
including a presentation ex parte or in camera, by either trial counsel or
defense counsel.
`(B) Before trial counsel may make a presentation for purposes of
subparagraph (A) requesting the admission of classified information that has
not been provided to the accused, the head of the executive or military
department or governmental agency concerned shall ensure, and shall certify
in writing to the military judge, that such evidence has been declassified
to the maximum extent possible, consistent with the requirements of national
security.
`(3)(A) No evidence may be admitted that has not been provided to the
accused unless the evidence is classified information and the military judge
makes a specific finding that--
`(i) consideration of that evidence by the military commission, without the
presence of the accused, is warranted;
`(ii) admission of an unclassified summary or redacted version of that
evidence would not be an adequate substitute and, in the case of testimony,
alternative methods to obscure the identity of the witness are not adequate;
and
`(iii) admission of the evidence would not deprive the accused of a full and
fair trial.
`(B) If the accused is excluded from a portion of the proceedings, the
accused shall be provided with a redacted transcript of the proceedings from
which excluded and, to the extent practicable, an unclassified summary of
any evidence introduced. Under no circumstances shall such a summary or
redacted transcript compromise the interests warranting the exclusion of the
accused under paragraph (1).
`(4)(A) Military defense counsel shall be present and able to participate in
all trial proceedings and shall be given access to all evidence admitted
under paragraph (3).
`(B) Civilian defense counsel shall be permitted to be present and to
participate in proceedings from which the accused is excluded under this
subsection, and shall be given access to classified information admitted
under this subsection, if--
`(i) civilian defense counsel has obtained the necessary security
clearances; and
`(ii) the presence of civilian defense counsel or access of civilian defense
counsel to such information, as applicable, is consistent with regulations
to protect classified information that the Secretary of Defense may
prescribe.
`(C) Any defense counsel who receives classified information admitted under
this subsection shall not be obligated to, and may not, disclose that
information to the accused.
`(D) At all times the accused must have defense counsel with sufficient
security clearance to participate in any proceeding, including an ex parte
or in camera presentation, with respect to classified information.
`(5) If evidence has been admitted under this subsection that has not been
provided to the accused, the judge shall instruct the members of the
commission--
`(A) that such evidence was so admitted; and
`(B) that, in weighing the value of that evidence, the commission shall
consider the fact that such evidence was admitted without having been
provided to the accused.
`(f) Admission of Statements of Accused- (1) A statement described in
paragraph (2) that is made by the accused during an interrogation, even if
otherwise classified, may not be admitted into evidence in a military
commission under this chapter unless the accused is present for the
admission of the statement into evidence or the statement is otherwise
provided to the accused.
`(2) A statement of an accused described in this paragraph is a statement
communicated knowingly and directly by the accused in response to
questioning by United States or foreign military, intelligence, or criminal
investigative personnel.
`(3) This subsection shall not be construed to prevent the redaction of
intelligence sources or methods, which do not constitute statements of the
accused, from any document provided to the accused or admitted into
evidence.
`Sec. 949e. Continuances
`The military judge in a military commission under this chapter may, for
reasonable cause, grant a continuance to any party for such time, and as
often, as may appear to be just.
`Sec. 949f. Challenges
`(a) Challenges Authorized- The military judge and members of a military
commission under this chapter may be challenged by the accused or trial
counsel for cause stated to the 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 additional members are presented and
decided, each accused and the trial counsel are entitled to one peremptory
challenge against members not previously subject to peremptory challenge.
`Sec. 949g. Oaths
`(a) In General- (1) Before performing their respective duties in a military
commission under this chapter, military judges, members, trial counsel,
defense counsel, reporters, and interpreters shall take an oath to perform
their duties faithfully.
`(2) 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 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.
`Sec. 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.
`Sec. 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
sentence, in which event the proceedings shall continue as though the
accused had pleaded not guilty.
`Sec. 949j. Opportunity to obtain witnesses and other evidence
`(a) Right of Defense Counsel- Defense counsel in a military commission
under this chapter shall have a reasonable opportunity to obtain witnesses
and other evidence, including evidence in the possession of the United
States, as provided in regulations prescribed by the Secretary of Defense.
`(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) Treatment of Classified Information- The military judge in a military
commission under this chapter, upon a sufficient showing, may authorize
trial counsel, in making documents available to the accused through
discovery conducted pursuant to such rules as the Secretary of Defense shall
prescribe, to delete specified items of classified information from such
documents and, when such a deletion is made--
`(1) to substitute an unclassified summary of the classified information in
such documents; or
`(2) to substitute an unclassified statement admitting relevant facts that
classified information in such documents would tend to prove.
`(d) Disclosure of Exculpatory Evidence- (1) As soon as practicable, trial
counsel in a military commission under this chapter shall disclose to the
defense the existence of any evidence known to trial counsel that reasonably
tends to exculpate the accused.
`(2) Exculpatory evidence that consists of classified information may be
provided solely to defense counsel, and not the accused, after review in
camera by the military judge.
`(3) Before evidence may be withheld from the accused under this subsection,
the head of the executive or military department or government agency
concerned shall ensure, and shall certify in writing to the military judge,
that--
`(A) the disclosure of such evidence to the accused could reasonably be
expected to prejudice the national security; and
`(B) such evidence has been declassified to the maximum extent possible,
consistent with the requirements of national security.
`(4) Any classified exculpatory evidence that is not disclosed to the
accused under this subsection--
`(A) shall be provided to military defense counsel;
`(B) shall be provided to civilian defense counsel, if civilian defense
counsel has obtained the necessary security clearances and access to such
evidence is consistent with regulations that the Secretary may prescribe to
protect classified information; and
`(C) shall be provided to the accused in a redacted or summary form, if it
is possible to do so without compromising intelligence sources, methods, or
activities or other national security interests.
`(5) A defense counsel who receives evidence under this subsection shall not
be obligated to, and may not, disclose that evidence to the accused.
`Sec. 949k. Defense of lack of mental responsibility
`(a) Affirmative Defense- It is an affirmative defense in a trial by
military commission under this chapter that, at the time of the commission
of the acts constituting the offense, the accused, as a result of a severe
mental disease or defect, was unable to appreciate the nature and quality or
the wrongfulness of the acts. Mental disease or defect does not otherwise
constitute a defense.
`(b) Burden of Proof- The accused in a military commission under this
chapter has the burden of proving the defense of lack of mental
responsibility by clear and convincing evidence.
`(c) Findings Following Assertion of Defense- Whenever lack of mental
responsibility of the accused with respect to an offense is properly at
issue in a military commission under this chapter, the military judge shall
instruct the members 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.
`Sec. 949l. Voting and rulings
`(a) Vote by Secret Written Ballot- Voting by members of a military
commission under this chapter on the findings and on the sentence shall be
by secret written ballot.
`(b) Rulings- (1) The military judge in a military commission under this
chapter shall rule upon all questions of law, including the admissibility of
evidence and all interlocutory questions arising during the proceedings.
`(2) Any ruling made by the military judge upon a question of law or an
interlocutory question (other than the factual issue of mental
responsibility of the accused) is conclusive and constitutes the ruling of
the military commission. However, a military judge may change 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 them--
`(1) that the accused must be presumed to be innocent until his guilt is
established by legal and competent evidence beyond a reasonable doubt;
`(2) that in the case being considered, if there is a reasonable doubt as to
the guilt of the accused, the doubt must be resolved in favor of the accused
and he must be acquitted;
`(3) that, if there is reasonable doubt as to the degree of guilt, the
finding must be in a lower degree as to which there is no reasonable doubt;
and
`(4) that the burden of proof to establish the guilt of the accused beyond a
reasonable doubt is upon the United States.
`Sec. 949m. Number of votes required
`(a) Conviction- No person may be convicted by a military commission under
this chapter of any offense, except as provided in section 949i(b) of this
title or by concurrence of two-thirds of the members present at the time the
vote is taken.
`(b) Sentences- (1) No person may be sentenced by a military commission to
suffer death, except insofar as--
`(A) the penalty of death is expressly authorized under this chapter for an
offense of which the accused has been found guilty;
`(B) trial counsel expressly sought the penalty of death by filing an
appropriate notice in advance of trial;
`(C) the accused is convicted of the offense by the concurrence of all the
members; and
`(D) all the members concur in the sentence of death.
`(2) No person may be sentenced to life imprisonment, or to confinement for
more than 10 years, by a military commission under this chapter except by
the concurrence of three-fourths of the members present at the time the vote
is taken.
`(3) All other sentences shall be determined by a military commission by the
concurrence of two-thirds of the members present at the time the vote is
taken.
`(c) Number of Members Required for Penalty of Death- (1) Except as provided
in paragraph (2), in a case in which the penalty of death is sought, the
number of members of the military commission under this chapter shall be not
less than 12.
`(2) In any case described in paragraph (1) in which 12 members are not
reasonably available because of physical conditions or military exigencies,
the convening authority shall specify a lesser number of members for the
military commission (but not fewer than 9 members), and the military
commission may be assembled, and the trial held, with not fewer than the
number of members so specified. In such a case, the convening authority
shall make a detailed written statement, to be appended to the record,
stating why a greater number of members were not reasonably available.
`Sec. 949n. Military commission to announce action
`A military commission under this chapter shall announce its findings and
sentence to the parties as soon as determined.
`Sec. 949o. Record of trial
`(a) Record; Authentication- Each military commission under this chapter
shall keep a separate, verbatim, record of the proceedings in each case
brought before it, and the record shall be authenticated by the signature of
the military judge. If the record cannot be authenticated by the military
judge by reason of his death, disability, or absence, it shall be
authenticated by the signature of the trial counsel or by a member of the
commission if the trial counsel is unable to authenticate it by reason of
his death, disability, or absence. Where appropriate, and as provided in
regulations prescribed by the Secretary of Defense, the record of a military
commission under this chapter may contain a classified annex.
`(b) Complete Record Required- A complete record of the proceedings and
testimony shall be prepared in every military commission under this chapter.
`(c) Provision of Copy to Accused- A copy of the record of the proceedings
of the military commission under this chapter shall be given the accused as
soon as it is authenticated. If the record contains classified information,
or a classified annex, the accused shall be given a redacted version of the
record. The appropriate defense counsel shall have access to the unredacted
record, as provided in regulations prescribed by the Secretary of Defense.
`SUBCHAPTER V--SENTENCES
`Sec.
`949s. Cruel or unusual punishments prohibited.
`949t. Maximum limits.
`949u. Execution of confinement.
`Sec. 949s. Cruel or unusual punishments prohibited
`Punishment by flogging, or by branding, marking, or tattooing on the body,
or any other cruel or unusual punishment, may not be adjudged by a military
commission under this chapter or inflicted under this chapter upon any
person subject to this chapter. The use of irons, single or double, except
for the purpose of safe custody, is prohibited under this chapter.
`Sec. 949t. Maximum limits
`The punishment which a military commission under this chapter may direct
for an offense may not exceed such limits as the President or Secretary of
Defense may prescribe for that offense.
`Sec. 949u. Execution of confinement
`(a) In General- Under such regulations as the Secretary of Defense may
prescribe, a sentence of confinement adjudged by a military commission under
this chapter may be carried into execution by confinement--
`(1) in any place of confinement under the control of any of the armed
forces; or
`(2) in any penal or correctional institution under the control of the
United States or its allies, or which the United States may be allowed to
use.
`(b) Treatment During Confinement by Other Than the Armed Forces- Persons
confined under subsection (a)(2) in a penal or correctional institution not
under the control of an armed force are subject to the same discipline and
treatment as persons confined or committed by the courts of the United
States or of the State, District of Columbia, or place in which the
institution is situated.
`SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY COMMISSIONS
`Sec.
`950a. Error of law; lesser included offense.
`950b. Review by the convening authority.
`950c. Waiver or withdrawal of appeal.
`950d. Appeal by the United States.
`950e. Rehearings.
`950f. Review by Court of Military Commission Review.
`950g. Review by the United States Court of Appeals for the District of
Columbia Circuit and the Supreme Court.
`950h. Appellate counsel.
`950i. Execution of sentence; suspension of sentence.
`950j. Finality or proceedings, findings, and sentences.
`Sec. 950a. Error of law; lesser included offense
`(a) Error of Law- A finding or sentence of a military commission under this
chapter may not be held incorrect on the ground of an error of law unless
the error materially prejudices the substantial rights of the accused.
`(b) Lesser Included Offense- Any reviewing authority with the power to
approve or affirm a finding of guilty by a military commission under this
chapter may approve or affirm, instead, so much of the finding as includes a
lesser included offense.
`Sec. 950b. Review by the convening authority
`(a) Notice to Convening Authority of Findings and Sentence- The findings
and sentence of a military commission under this chapter shall be reported
in writing promptly to the convening authority after the announcement of the
sentence.
`(b) Submittal of Matters by Accused to Convening Authority- (1) The accused
may submit to the convening authority matters for consideration by the
convening authority with respect to the findings and the sentence of the
military commission under this chapter.
`(2)(A) Except as provided in subparagraph (B), a submittal under paragraph
(1) shall be made in writing within 20 days afer accused has been given an
authenticated record of trial under section 949o(c) of this title.
`(B) If the accused shows that additional time is required for the accused
to make a submittal under paragraph (1), the convening authority may, for
good cause, extend the applicable period under subparagraph (A) for not more
than an additional 20 days.
`(3) The accused may waive his right to make a submittal to the convening
authority under paragraph (1). Such a waiver shall be made in writing and
may not be revoked. For the purposes of subsection (c)(2), the time within
which the accused may make a submittal under this subsection shall be deemed
to have expired upon the submittal of a waiver under this paragraph to the
convening authority.
`(c) Action by Convening Authority- (1) The authority under this subsection
to modify the findings and sentence of a military commission under this
chapter is a matter of the sole discretion and prerogative of the convening
authority.
`(2)(A) The convening authority shall take action on the sentence of a
military commission under this chapter.
`(B) Subject to regulations prescribed by the Secretary of Defense, action
on the sentence under this paragraph may be taken only after consideration
of any matters submitted by the accused under subsection (b) or after the
time for submitting such matters expires, whichever is earlier.
`(C) In taking action under this paragraph, the convening authority may, in
his sole discretion, approve, disapprove, commute, or suspend the sentence
in whole or in part. The convening authority may not increase a sentence
beyond that which is found by the military commission.
`(3) The convening authority is not required to take action on the findings
of a military commission under this chapter. If the convening authority
takes action on the findings, the convening authority may, in his sole
discretion, may--
`(A) dismiss any charge or specification by setting aside a finding of
guilty thereto; or
`(B) change a finding of guilty to a charge to a finding of guilty to an
offense that is a lesser included offense of the offense stated in the
charge.
`(4) The convening authority shall serve on the accused or on defense
counsel notice of any action taken by the convening authority under this
subsection.
`(d) Order of Revision or Rehearing- (1) Subject to paragraphs (2) and (3),
the convening authority of a military commission under this chapter may, in
his sole discretion, order a proceeding in revision or a rehearing.
`(2)(A) Except as provided in subparagraph (B), a proceeding in revision may
be ordered by the convening authority if--
`(i) there is an apparent error or omission in the record; or
`(ii) the record shows improper or inconsistent action by the military
commission with respect to the findings or sentence that can be rectified
without material prejudice to the substantial rights of the accused.
`(B) In no case may a proceeding in revision--
`(i) reconsider a finding of not guilty of a specification or a ruling which
amounts to a finding of not guilty;
`(ii) reconsider a finding of not guilty of any charge, unless there has
been a finding of guilty under a specification laid under that charge, which
sufficiently alleges a violation; or
`(iii) increase the severity of the sentence unless the sentence prescribed
for the offense is mandatory.
`(3) A rehearing may be ordered by the convening authority if the convening
authority disapproves the findings and sentence and states the reasons for
disapproval of the findings. If the convening authority disapproves the
finding and sentence and does not order a rehearing, the convening authority
shall dismiss the charges. A rehearing as to the findings may not be ordered
by the convening authority when there is a lack of sufficient evidence in
the record to support the findings. A rehearing as to the sentence may be
ordered by the convening authority if the convening authority disapproves
the sentence.
`Sec. 950c. Appellate referral; waiver or withdrawal of appeal
`(a) Automatic Referral for Appellate Review- Except as provided under
subsection (b), in each case in which the final decision of a military
commission (as approved by the convening authority) includes a finding of
guilty, the convening authority shall refer the case to the Court of
Military Commission Review. Any such referral shall be made in accordance
with procedures prescribed under regulations of the Secretary.
`(b) Waiver of Right of Review- (1) In each case subject to appellate review
under section 950f of this title, except a case in which the sentence as
approved under section 950b of this title extends to death, the accused may
file with the convening authority a statement expressly waiving the right of
the accused to such review.
`(2) A waiver under paragraph (1) shall be signed by both the accused and a
defense counsel.
`(3) A waiver under paragraph (1) must be filed, if at all, within 10 days
after notice on the action is served on the accused or on defense counsel
under section 950b(c)(4) of this title. The convening authority, for good
cause, may extend the period for such filing by not more than 30 days.
`(c) Withdrawal of Appeal- Except in a case in which the sentence as
approved under section 950b of this title extends to death, the accused may
withdraw an appeal at any time.
`(d) Effect of Waiver or Withdrawal- A waiver of the right to appellate
review or the withdrawal of an appeal under this section bars review under
section 950f of this title.
`Sec. 950d. Appeal by the United States
`(a) Interlocutory Appeal- (1) Except as provided in paragraph (2), in a
trial by military commission under this chapter, the United States may take
an interlocutory appeal to the Court of Military Commission Review of any
order or ruling of the military judge that--
`(A) terminates proceedings of the military commission with respect to a
charge or specification;
`(B) excludes evidence that is substantial proof of a fact material in the
proceeding; or
`(C) relates to a matter under subsection (d), (e), or (f) of section 949d
of this title.
`(2) The United States may not appeal under paragraph (1) an order or ruling
that is, or amounts to, a finding of not guilty by the military commission
with respect to a charge or specification.
`(b) Notice of Appeal- The United States shall take an appeal of an order or
ruling under subsection (a) by filing a notice of appeal with the military
judge within five days after the date of such order or ruling.
`(c) Appeal- An appeal under this section shall be forwarded, by means
specified in regulations prescribed the Secretary of Defense, directly to
the Court of Military Commission Review. In ruling on an appeal under this
section, the Court of Military Commission Review may act only with respect
to matters of law.
`(d) Appeal From Adverse Ruling- The United States may appeal an adverse
ruling on an appeal under subsection (c) to the United States Court of
Appeals for the District of Columbia Circuit by filing a petition for review
in the Court of Appeals within 10 days after the date of such ruling. Review
under this subsection shall be at the discretion of the Court of Appeals.
`Sec. 950e. Rehearings
`(a) Composition of Military Commission for Rehearing- Each rehearing under
this chapter shall take place before a military commission under this
chapter composed of members who were not members of the military commission
which first heard the case.
`(b) Scope of Rehearing- (1) Upon a rehearing--
`(A) the accused may not be tried for any offense of which he was found not
guilty by the first military commission; and
`(B) no sentence in excess of or more than the original sentence may be
imposed unless--
`(i) the sentence is based upon a finding of guilty of an offense not
considered upon the merits in the original proceedings; or
`(ii) the sentence prescribed for the offense is mandatory.
`(2) Upon a rehearing, if the sentence approved after the first military
commission was in accordance with a pretrial agreement and the accused at
the rehearing changes his plea with respect to the charges or specifications
upon which the pretrial agreement was based, or otherwise does not comply
with pretrial agreement, the sentence as to those charges or specifications
may include any punishment not in excess of that lawfully adjudged at the
first military commission.
`Sec. 950f. Review by Court of Military Commission Review
`(a) Establishment- The Secretary of Defense shall establish a Court of
Military Commission Review which shall be composed of one or more panels,
and each such panel shall be composed of not less than three appellate
military judges. For the purpose of reviewing military commission decisions
under this chapter, the court may sit in panels or as a whole in accordance
with rules prescribed by the Secretary.
`(b) Appellate Military Judges- The Secretary shall assign appellate
military judges to a Court of Military Commission Review. Each appellate
military judge shall meet the qualifications for military judges prescribed
by section 948j(b) of this title or shall be a civilian with comparable
qualifications. No person may be appointed to serve as an appellate military
judge in any case in which that person acted as a military judge, counsel,
or reviewing official.
`(c) Cases to Be Reviewed- The Court of Military Commission Review, in
accordance with procedures prescribed under regulations of the Secretary,
shall review the record in each case that is referred to the Court by the
convening authority under section 950c of this title with respect to any
matter of law raised by the accused.
`(d) Scope of Review- In a case reviewed by it under this section, the Court
of Military Commission Review may act only with respect to matters of law.
`Sec. 950g. Review by the United States Court of Appeals for the District of
Columbia Circuit and the Supreme Court
`(a) Exclusive Appellate Jurisdiction- (1)(A) Except as provided in
subparagraph (B), the United States Court of Appeals for the District of
Columbia Circuit shall have exclusive jurisdiction to determine the validity
of a final judgment rendered by a military commission (as approved by the
convening authority) under this chapter.
`(B) The Court of Appeals may not review the final judgment until all other
appeals under this chapter have been waived or exhausted.
`(2) A petition for review must be filed by the accused in the Court of
Appeals not later than 20 days after the date on which--
`(A) written notice of the final decision of the Court of Military
Commission Review is served on the accused or on defense counsel; or
`(B) the accused submits, in the form prescribed by section 950c of this
title, a written notice waiving the right of the accused to review by the
Court of Military Commission Review under section 950f of this title.
`(b) Standard for Review- In a case reviewed by it under this section, the
Court of Appeals may act only with respect to matters of law.
`(c) Scope of Review- The jurisdiction of the Court of Appeals on an appeal
under subsection (a) shall be limited to the consideration of--
`(1) whether the final decision was consistent with the standards and
procedures specified in this chapter; and
`(2) to the extent applicable, the Constitution.
`(d) Supreme Court- The Supreme Court may review by writ of certiorari the
final judgment of the Court of Appeals pursuant to section 1257 of title 28.
`Sec. 950h. Appellate counsel
`(a) Appointment- The Secretary of Defense shall, by regulation, establish
procedures for the appointment of appellate counsel for the United States
and for the accused in military commissions under this chapter. Appellate
counsel shall meet the qualifications for counsel appearing before military
commissions under this chapter.
`(b) Representation of United States- Appellate counsel appointed under
subsection (a)--
`(1) shall represent the United States in any appeal or review proceeding
under this chapter before the Court of Military Commission Review; and
`(2) may, when requested to do so by the Attorney General in a case arising
under this chapter, represent the United States before the United States
Court of Appeals for the District of Columbia Circuit or the Supreme Court.
`(c) Representation of Accused- The accused shall be represented by
appellate counsel appointed under subsection (a) before the Court of
Military Commission Review, the United States Court of Appeals for the
District of Columbia Circuit, and the Supreme Court, and by civilian counsel
if retained by the accused. Any such civilian counsel shall meet the
qualifications under paragraph (3) of section 949c(b) of this title for
civilian counsel appearing before military commissions under this chapter
and shall be subject to the requirements of paragraph (4) of that section.
The provisions of subparagraph (D) of section 949d(e)(5) of this title shall
apply with respect to appellate counsel.
`Sec. 950i. Execution of sentence; suspension of sentence
`(a) Execution of Sentence of Death Only Upon Approval by the President- If
the sentence of a military commission under this chapter extends to death,
that part of the sentence providing for death may not be executed until
approved by the President. In such a case, the President may commute, remit,
or suspend the sentence, or any part thereof, as he sees fit.
`(b) Execution of Sentence of Death Only Upon Final Judgment of Legality of
Proceedings- (1) If the sentence of a military commission under this chapter
extends to death, the sentence may not be executed until there is a final
judgement as to the legality of the proceedings (and with respect to death,
approval under subsection (a)).
`(2) A judgement as to legality of proceedings is final for purposes of
paragraph (1) when--
`(A) the time for the accused to file a petition for review by the Court of
Appeals for the District of Columbia Circuit has expired and the accused has
not filed a timely petition for such review and the case is not otherwise
under review by that Court; or
`(B) review is completed in accordance with the judgment of the United
States Court of Appeals for the District of Columbia Circuit and--
`(i) a petition for a writ of certiorari is not timely filed;
`(ii) such a petition is denied by the Supreme Court; or
`(iii) review is otherwise completed in accordance with the judgment of the
Supreme Court.
`(c) Suspension of Sentence- The Secretary of the Defense, or the convening
authority acting on the case (if other than the Secretary), may suspend the
execution of any sentence or part thereof in the case, except a sentence of
death.
`Sec. 950j. Finality or proceedings, findings, and sentences
`(a) Finality- The appellate review of records of trial provided by this
chapter, and the proceedings, findings, and sentences of military
commissions as approved, reviewed, or affirmed as required by this chapter,
are final and conclusive. Orders publishing the proceedings of military
commissions under this chapter are binding upon all departments, courts,
agencies, and officers of the United States, except as otherwise provided by
the President.
`(b) Provisions of Chapter Sole Basis for Review of Miliary Commission
Procedures and Actions- Except as otherwise provided in this chapter and
notwithstanding any other provision of law (including section 2241 of title
28 or any other habeas corpus provision), no court, justice, or judge shall
have jurisdiction to hear or consider any claim or cause of action
whatsoever, including any action pending on or filed after the date of the
enactment of the Military Commissions Act of 2006, relating to the
prosecution, trial, or judgment of a military commission under this chapter,
including challenges to the lawfulness of procedures of military commissions
under this chapter.
`SUBCHAPTER VII--PUNITIVE MATTERS
`Sec.
`950p. Statement of substantive offenses.
`950q. Principals.
`950r. Accessory after the fact.
`950s. Conviction of lesser included offense.
`950t. Attempts.
`950u. Solicitation.
`950v. Crimes triable by military commissions.
`950w. Perjury and obstruction of justice.
`950x. Contempt.
`Sec. 950p. Statement of substantive offenses
`(a) Purpose- The provisions of this subchapter codify offenses that have
traditionally been triable by military commissions. This chapter does not
establish new crimes that did not exist before its enactment, but rather
codifies those crimes for trial by military commission.
`(b) Effect- Because the provisions of this subchapter (including provisions
that incorporate definitions in other provisions of law) are declarative of
existing law, they do not preclude trial for crimes that occurred before the
date of the enactment of this chapter.
`Sec. 950q. Principals
`Any person is punishable as a principal under this chapter who--
`(1) commits an offense punishable by this chapter, or aids, abets,
counsels, commands, or procures its commission;
`(2) causes an act to be done which if directly performed by him would be
punishable by this chapter; or
`(3) is a superior commander who, with regard to acts punishable under this
chapter, knew, had reason to know, or should have known, that a subordinate
was about to commit such acts or had done so and the superior failed to take
the necessary and reasonable measures to prevent such acts or to punish the
perpetrators thereof.
`Sec. 950r. Accessory after the fact
`Any person subject to this chapter who, knowing that an offense punishable
by this chapter has been committed, receives, comforts, or assists the
offender in order to hinder or prevent his apprehension, trial, or
punishment shall be punished as a military commission under this chapter may
direct.
`Sec. 950s. Conviction of lesser included offense
`An accused may be found guilty of an offense necessarily included in the
offense charged or of an attempt to commit either the offense charged or an
attempt to commit either the offense charged or an offense necessarily
included therein.
`Sec. 950t. Attempts
`(a) In General- Any person subject to this chapter who attempts to commit
any offense punishable by this chapter shall be punished as a military
commission under this chapter may direct.
`(b) Scope of Offense- An act, done with specific intent to commit an
offense under this chapter, amounting to more than mere preparation and
tending, even though failing, to effect its commission, is an attempt to
commit that offense.
`(c) Effect of Consummation- Any person subject to this chapter may be
convicted of an attempt to commit an offense although it appears on the
trial that the offense was consummated.
`Sec. 950u. Solicitation
`Any person subject to this chapter who solicits or advises another or
others to commit one or more substantive offenses triable by military
commission under this chapter shall, if the offense solicited or advised is
attempted or committed, be punished with the punishment provided for the
commission of the offense, but, if the offense solicited or advised is not
committed or attempted, he shall be punished as a military commission under
this chapter may direct.
`Sec. 950v. Crimes triable by military commissions
`(a) Definitions and Construction- In this section:
`(1) MILITARY OBJECTIVE- The term `military objective' refers to--
`(A) combatants; and
`(B) those objects during an armed conflict--
`(i) which, by their nature, location, purpose, or use, effectively
contribute to the opposing force's war-fighting or war-sustaining
capability; and
`(ii) the total or partial destruction, capture, or neutralization of which
would constitute a definite military advantage to the attacker under the
circumstances at the time of the attack.
`(2) PROTECTED PERSON- The term `protected person' refers to any person
entitled to protection under one or more of the Geneva Conventions,
including--
`(A) civilians not taking an active part in hostilities;
`(B) military personnel placed hors de combat by sickness, wounds, or
detention; and
`(C) military medical or religious personnel.
`(3) PROTECTED PROPERTY- The term `protected property' refers to property
specifically protected by the law of war (such as buildings dedicated to
religion, education, art, science or charitable purposes, historic
monuments, hospitals, or places where the sick and wounded are collected),
if such property is not being used for military purposes or is not otherwise
a military objective. Such term includes objects properly identified by one
of the distinctive emblems of the Geneva Conventions.
`(4) CONSTRUCTION- The intent specified for an offense under paragraph (1),
(2), (3), (4), or (12) of subsection (b) precludes the applicability of such
offense with regard to--
`(A) collateral damage; or
`(B) death, damage, or injury incident to a lawful attack.
`(b) Offenses- The following offenses shall be triable by military
commission under this chapter at any time without limitation:
`(1) MURDER OF PROTECTED PERSONS- An alien unlawful enemy combatant who
intentionally kills one or more protected persons is guilty of the offense
of intentionally killing a protected person and shall be subject to whatever
punishment a commission may direct, including the penalty of death.
`(2) ATTACKING CIVILIANS- An alien unlawful enemy combatant who
intentionally engages in an attack upon a civilian population as such or
individual civilians not taking active part in hostilities is guilty of the
offense of attacking civilians and shall be subject to whatever punishment a
commission may direct, including, if death results to one or more of the
victims, the penalty of death.
`(3) ATTACKING CIVILIAN OBJECTS- An alien unlawful enemy combatant who
intentionally engages in an attack upon property that is not a military
objective shall be guilty of the offense of attacking civilian objects and
shall be subject to whatever punishment a commission may direct.
`(4) ATTACKING PROTECTED PROPERTY- An alien unlawful enemy combatant who
intentionally engages in an attack upon protected property shall be guilty
of the offense of attacking protected property and shall be subject to
whatever punishment a commission may direct.
`(5) PILLAGING- An alien unlawful enemy combatant who intentionally and in
the absence of military necessity appropriates or seizes property for
private or personal use, without the consent of a person with authority to
permit such appropriation or seizure, shall be guilty of the offense of
pillaging and shall be subject to whatever punishment a commission may
direct.
`(6) DENYING QUARTER- An alien unlawful enemy combatant who, with effective
command or control over subordinate groups, declares, orders, or otherwise
indicates to those forces that there shall be no survivors or surrender
accepted, with the intent therefore to threaten an adversary or to conduct
hostilities such that there would be no survivors or surrender accepted,
shall be guilty of denying quarter and shall be subject to whatever
punishment a commission may direct.
`(7) TAKING HOSTAGES- An alien unlawful enemy combatant who, having
knowingly seized or detained one or more persons, threatens to kill, injure,
or continue to detain such person or persons with the intent of compelling
any nation, person other than the hostage, or group of persons to act or
refrain from acting as an explicit or implicit condition for the safety or
release of such person or persons, shall be guilty of the offense of taking
hostages and shall be subject to whatever punishment a commission may
direct, including, if death results to one or more of the victims, the
penalty of death.
`(8) EMPLOYING POISON OR ANALOGOUS WEAPONS- An alien unlawful enemy
combatant who intentionally, as a method of warfare, employs a substance or
a weapon that releases a substance that causes death or serious and lasting
damage to health in the ordinary course of events, through its asphyxiating,
bacteriological, or toxic properties, shall be guilty of employing poison or
analogous weapons and shall be subject to whatever punishment a commission
may direct, including, if death results to one or more of the victims, the
penalty of death.
`(9) USING PROTECTED PERSONS AS SHIELDS- An alien unlawful enemy combatant
who positions, or otherwise takes advantage of, a protected person with the
intent to shield a military objective from attack or to shield, favor, or
impede military operations, shall be guilty of the offense of using
protected persons as shields and shall be subject to whatever punishment a
commission may direct, including, if death results to one or more of the
victims, the penalty of death.
`(10) USING PROTECTED PROPERTY AS SHIELDS- An alien unlawful enemy combatant
who positions, or otherwise takes advantage of the location of, protected
property under the law of war with the intent to shield a military objective
from attack or to shield, favor, or impede military operations, shall be
guilty of the offense of using protected property as shields and shall be
subject to whatever punishment a commission may direct.
`(11) TORTURE- An alien unlawful enemy combatant who commits an act
specifically intended to inflict severe physical pain or suffering or severe
mental pain or suffering (other than pain or suffering incidental to lawful
sanctions) upon another person within his custody or physical control for
the purpose of obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination of any kind,
shall be guilty of torture and subject to whatever punishment a commission
may direct, including, if death results to one or more of the victims, the
penalty of death. In this paragraph, the term `severe mental pain or
suffering' has the meaning given that term in section 2340(2) of title 18.
`(12) CRUEL OR INHUMAN TREATMENT- An alien unlawful enemy combatant who
commits an act intended to inflict severe physical pain or suffering or
severe mental pain or suffering (other than pain or suffering incidental to
lawful sanctions), including severe physical abuse, upon another person
within his custody or physical control shall be guilty of cruel or inhuman
treatment and subject to whatever punishment a commission may direct,
including, if death results to one or more of the victims, the penalty of
death. In this paragraph, the term `severe mental pain or suffering' has the
meaning given that term in section 2340(2) of title 18.
`(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY- An alien unlawful enemy
combatant who intentionally causes serious bodily injury to one or more
persons, including lawful combatants, in violation of the law of war shall
be guilty of the offense of causing serious bodily injury and shall be
subject to whatever punishment a commission may direct, including, if death
results to one or more of the victims, the penalty of death. In this
paragraph, the term `serious bodily injury' has the meaning given that term
in section 113(b)(2) of title 18.
`(14) MUTILATING OR MAIMING- An alien unlawful enemy combatant who
intentionally injures one or more protected persons, by disfiguring the
person or persons by any mutilation thereof or by permanently disabling any
member, limb, or organ of his body, without any legitimate medical or dental
purpose, shall be guilty of the offense of mutilation or maiming and shall
be subject to whatever punishment a commission may direct, including, if
death results to one or more of the victims, the penalty of death.
`(15) MURDER IN VIOLATION OF THE LAW OF WAR- An alien unlawful enemy
combatant who intentionally kills one or more persons, including lawful
combatants, in violation of the law of war shall be guilty of the offense of
murder in violation of the law of war and shall be subject to whatever
punishment a commission may direct, including the penalty of death.
`(16) DESTRUCTION OF PROPERTY IN VIOLATION OF THE LAW OF WAR- An alien
unlawful enemy combatant who intentionally destroys property belonging to
another person in violation of the law of war shall be guilty of the offense
of destruction of property in violation of the law of war and shall be
subject to whatever punishment a commission may direct.
`(17) USING TREACHERY OR PERFIDY- An alien unlawful enemy combatant who,
after inviting the confidence or belief of one or more persons that they
were entitled to, or obliged to accord, protection under the law of war,
intentionally makes use of that confidence or belief in killing, injuring,
or capturing such person or persons, shall be guilty of using treachery or
perfidy and shall be subject to whatever punishment a commission may direct.
`(18) IMPROPERLY USING A FLAG OF TRUCE- An alien unlawful enemy combatant
who uses a flag of truce to feign an intention to negotiate, surrender, or
otherwise to suspend hostilities when there is no such intention, shall be
guilty of improperly using a flag of truce and shall be subject to whatever
punishment a commission may direct.
`(19) IMPROPERLY USING A DISTINCTIVE EMBLEM- An alien unlawful enemy
combatant who intentionally uses a distinctive emblem recognized by the law
of war for combatant purposes in a manner prohibited by the law of war shall
be guilty of improperly using a distinctive emblem and shall be subject to
whatever punishment a commission may direct.
`(20) INTENTIONALLY MISTREATING A DEAD BODY- An alien unlawful enemy
combatant who intentionally mistreats the body of a dead person, without
justification by legitimate military necessary, shall be guilty of the
offense of mistreating a dead body and shall be subject to whatever
punishment a commission may direct.
`(21) RAPE- An alien unlawful enemy combatant who forcibly or with coercion
or threat of force wrongfully invades the body of a person by penetrating,
however slightly, the anal or genital opening of the victim with any part of
the body of the accused or with any foreign object shall be guilty of the
offense of rape and shall be subject to whatever punishment a commission may
direct.
`(22) HIJACKING OR HAZARDING A VESSEL OR AIRCRAFT- An alien unlawful enemy
combatant subject to this title who intentionally seizes, exercises
unauthorized control over, or endangers the safe navigation of, a vessel or
aircraft that was not a legitimate military target is guilty of the offense
of hijacking or hazarding a vessel or aircraft and shall be subject to
whatever punishment a commission may direct, including, if death results to
one or more of the victims, the penalty of death.
`(23) TERRORISM- An alien unlawful enemy combatant subject to this title who
intentionally kills or inflicts great bodily harm on one or more persons, or
intentionally engages in an act that evinces a wanton disregard for human
life, in a manner calculated to influence or affect the conduct of
government or civilian population by intimidation or coercion, or to
retaliate against government conduct, shall be guilty of the offense of
terrorism and shall be subject to whatever punishment a commission may
direct, including, if death results to one or more of the victims, the
penalty of death.
`(24) PROVIDING MATERIAL SUPPORT FOR TERRORISM- An alien unlawful enemy
combatant who provides material support or resources, knowing or intending
that they are to be used in preparation for, or in carrying out, an act of
terrorism (as defined in paragraph (23)), or who intentionally provides
material support or resources to an international terrorist organization
engaged in hostilities against the United States, knowing that such
organization has engaged or engages in terrorism (as defined in paragraph
(23)), shall be guilty of the offense of providing material support for
terrorism and shall be subject to whatever punishment a commission may
direct. In this paragraph, the term `material support or resources' has the
meaning given that term in section 2339A(b) of title 18.
`(25) WRONGFULLY AIDING THE ENEMY- An alien unlawful enemy combatant who, in
breach of an allegiance or duty to the United States, knowingly and
intentionally aids an enemy of the United States or one its co-belligerents
shall be guilty of the offense of wrongfully aiding the enemy and shall be
subject to whatever punishment a commission may direct.
`(26) SPYING- An alien unlawful enemy combatant who, with intent or reason
to believe that it is to be used to the injury of the United States or to
the advantage of a foreign power, collects or attempts to collect certain
information by clandestine means or while acting under false pretenses, for
the purpose of conveying such information to an enemy of the United States
or one of its co-belligerents, shall be guilty of the offense of spying and
shall be subject to whatever punishment a commission may direct, including
the penalty of death.
`(27) CONSPIRACY- An alien unlawful enemy combatant who conspires to commit
one or more substantive offenses triable under this section, and who
knowingly does any overt act to effect the object of the conspiracy, shall
be guilty of conspiracy and shall be subject to whatever punishment a
commission may direct, including, if death results to one or more of the
victims, the penalty of death.
`Sec. 950w. Perjury and obstruction of justice
`A military commission under this chapter may try offenses and impose
punishments for perjury, false testimony, or obstruction of justice related
to military commissions under this chapter.
`Sec. 950x. Contempt
`A military commission under this chapter may punish for contempt any person
who uses any menacing word, sign, or gesture in its presence, or who
disturbs its proceedings by any riot or disorder.'.
(2) TABLES OF CHAPTERS AMENDMENTS- The tables of chapters at the beginning
of subtitle A, and at the beginning of part II of subtitle A, of title 10,
United States Code, are each amended by inserting after the item relating to
chapter 47 the following new item:
--948a'.
(b) Conforming Amendment to UCMJ- Section 836(a) of title 10, United States
Code (article 36(a) of the Uniform Code of Military Justice)), is amended by
inserting `, except as provided in chapter 47A of this title,' after `but
which may not'.
(c) Submittal of Procedures to Congress- Not later than 90 days after the
date of the enactment of this Act, the Secretary of Defense shall submit to
the Committees on Armed Services of the Senate and the House of
Representatives a report setting forth the procedures for military
commissions prescribed under chapter 47A of title 10, United States Code (as
added by subsection (a)).
SEC. 4. CLARIFICATION OF CONDUCT CONSTITUTING WAR CRIME OFFENSE UNDER
FEDERAL CRIMINAL CODE.
(a) Applicability Only to Serious Violations of Common Article 3- Section
2441 of title 18, United States Code is amended--
(1) by striking paragraph (3) of subsection (c) and inserting the following:
`(3) which constitutes a serious violation of common Article 3 of the 1949
Geneva Conventions, when committed in the context of and in association with
an armed conflict not of an international character; or'; and
(2) by adding at the end the following new subsection:
`(d) Covered Common Article 3 Violations-
`(1) SERIOUS VIOLATIONS- In subsection (c)(3), the term `serious violation
of common Article 3 of the 1949 Geneva Conventions' means any of the
following:
`(A) TORTURE- The act of a person who commits, or conspires or attempts to
commit, an act specifically intended to inflict severe physical pain or
suffering or severe mental pain or suffering (as such term is defined in
section 2340(2) of this title), other than pain or suffering incidental to
lawful sanctions, upon another person within his custody or physical control
for the purpose of obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination of any kind.
`(B) CRUEL OR INHUMAN TREATMENT- The act of a person who commits, or
conspires or attempts to commit, an act intended to inflict severe physical
pain or suffering or severe mental pain or suffering (as such term is
defined in section 2340(2) of this title), other than pain or suffering
incidental to lawful sanctions, and including severe physical abuse, upon
another person within his custody or physical control.
`(C) PERFORMING BIOLOGICAL EXPERIMENTS- The act of a person who subjects, or
conspires or attempts to subject, one or more persons within his custody or
physical control to biological experiments and in so doing endangers the
body or health of such person or persons.
`(D) MURDER- The act of a person who intentionally kills, or conspires or
attempts to kill, or kills whether intentionally or unintentionally in the
course of committing any other offense under this section, one or more
persons taking no active part in the hostilities, including those placed
hors de combat by sickness, wounds, detention, or any other cause.
`(E) MUTILATION OR MAIMING- The act of a person who intentionally injures,
or conspires or attempts to injure, or injures whether intentionally or
unintentionally in the course of committing any other offense under this
section, one or more persons taking no active part in the hostilities,
including those placed hors de combat by sickness, wounds, detention, or any
other cause, by disfiguring the person or persons by any mutilation thereof
or by permanently disabling any member, limb, or organ of his body, without
any legitimate medical or dental purpose.
`(F) INTENTIONALLY CAUSING GREAT SUFFERING OR SERIOUS INJURY- The act of a
person who intentionally causes, or conspires or attempts to cause, serious
bodily injury (as such term is defined in section 113(b)(2) of this title)
to one or more persons taking no active part in the hostilities, including
those placed hors de combat by sickness, wounds, detention, or any other
cause.
`(G) RAPE- The act of a person who forcibly or with coercion or threat of
force wrongfully invades, or conspires or attempts to invade, the body of a
person by penetrating, however slightly, the anal or genital opening of the
victim with any part of the body of the accused or with any foreign object.
`(H) SEXUAL ASSAULT OR ABUSE- The act of a person who forcibly or with
coercion or threat of force engages, or conspires or attempts to engage, in
sexual contact (as such term is defined in section 2246(3) of this title)
with one or more persons, or causes, or conspires or attempts to cause, one
or more persons to engage in sexual contact (as so defined).
`(I) TAKING HOSTAGES- The act of a person who--
`(i) having knowingly seized or detained one or more persons, threatens to
kill, injure, or continue to detain such person or persons with the intent
of compelling any nation, person other than the hostage, or group of persons
to act or refrain from acting as an explicit or implicit condition for the
safety or release of such person or persons; or
`(ii) attempts to engage or conspires to engage in conduct under clause (i).
`(2) INAPPLICABILITY OF SPECIFIED PROVISIONS WITH RESPECT TO CERTAIN
CONDUCT- The intent specified for the conduct stated in subparagraphs (D),
(E), and (F) of paragraph (1) precludes the applicability of those
subparagraphs with regard to--
`(A) collateral damage; or
`(B) death, damage, or injury incident to a lawful attack.'.
(b) Retroactive Applicability- The amendments made by this section shall
take effect as of November 26, 1997, as if enacted immediately after the
amendments made by section 583 of Public Law 105-118 (as amended by section
4002 of Public Law 107-273).
SEC. 5. JUDICIAL REVIEW.
Section 2241 of title 28, United States Code, is amended by striking both
the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119
Stat. 2742) and the subsection (e) added by section 1405(e)(1) of Public Law
109-163 (119 Stat. 3477) and inserting the following new subsection (e):
`(e)(1) Except as provided for in this subsection, and notwithstanding any
other law, no court, justice, or judge shall have jurisdiction to hear or
consider any claim or cause of action, including an application for a writ
of habeas corpus, pending on or filed after the date of the enactment of the
Military Commissions Act of 2006, against the United States or its agents,
brought by or on behalf of any alien detained by the United States as an
unlawful enemy combatant, relating to any aspect of the alien's detention,
transfer, treatment, or conditions of confinement.
`(2) The United States Court of Appeals for the District of Columbia Circuit
shall have exclusive jurisdiction to determine the validity of any final
decision of a Combatant Status Review Tribunal. The scope of such review is
defined in section 1005(e)(2) of the Detainee Treatment Act of 2005. If the
Court grants a detainee's petition for review, the Secretary of Defense may
conduct a new Combatant Status Review Tribunal.
`(3) Review shall be had only of final judgments of military commissions as
provided for pursuant to section 950g of title 10, United States Code.
`(4) The court may consider classified information submitted in camera and
ex parte in making any determination under this section.'.
SEC. 6. SATISFACTION OF TREATY OBLIGATIONS.
(a) In General- Satisfaction of the prohibitions against cruel, inhuman, and
degrading treatment set forth in section 1003 of the Detainee Treatment Act
of 2005 (42 U.S.C. 2000dd) shall fully satisfy United States obligations
with respect to the standards for detention and treatment established by
section 1 of Common Article 3 of the Geneva Conventions, with the exception
of the obligations imposed by subsections 1(b) and 1(d) of such Article .
(b) Rights Not Judicially Enforceable-
(1) IN GENERAL- No person in any habeas action or any other action may
invoke the Geneva Conventions or any protocols thereto as a source of
rights, whether directly or indirectly, for any purpose in any court of the
United States or its States or territories.
(2) CONSTRUCTION- Paragraph (1) may not be construed to affect the
obligations of the United States under the Geneva Conventions.
(c) Geneva Conventions Defined- In this section, the term `Geneva
Conventions' means the international conventions signed at Geneva on August
12, 1949, including common Article 3.
SEC. 7. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING TO PROTECTION
OF CERTAIN UNITED STATES GOVERNMENT PERSONNEL.
(a) Counsel and Investigations- Section 1004(b) of the Detainee Treatment
Act of 2005 (42 U.S.C. 2000dd-1(b)) is amended--
(1) by striking `may provide' and inserting `shall provide';
(2) by inserting `or investigation' after `criminal prosecution'; and
(3) by inserting `whether before United States courts or agencies, foreign
courts or agencies, or international courts or agencies,' after `described
in that subsection'.
(b) Protection of Personnel- Section 1004 of the Detainee Treatment Act of
2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal
prosecution that--
(1) relates to the detention and interrogation of aliens described in such
section;
(2) is grounded in section 2441(c)(3) of title 18, United States Code; and
(3) relates to actions occurring between September 11, 2001, and December
30, 2005.
SEC. 8. RETROACTIVE APPLICABILITY.
This Act shall take effect on the date of the enactment of this Act and
shall apply retroactively, including--
(1) to any aspect of the detention, treatment, or trial of any person
detained at any time since September 11, 2001; and
(2) to any claim or cause of action pending on or after the date of the
enactment of this Act.
END
http://www.theorator.com/bills109/hr6054.html
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| Title: The March to War: Naval Build-up in the Persian Gulf and the Eastern Mediterranean. Re: USA Torture Capitol Of The World: US Sexually Torturing Children |
02 Oct 2006 07:02:39 AM |
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The March to War: Naval build-up in the Persian Gulf and the Eastern
Mediterranean.
by Mahdi Darius Nazemroaya
October 1, 2006
GlobalResearch.ca
The probability of another war in the Middle East is high. Only time will
tell if the horrors of further warfare is to fully materialize. Even then,
the shape of a war is still undecided in terms of its outcome.
If war is to be waged or not against Iran and Syria, there is still the
undeniable build-up and development of measures that confirm a process of
military deployment and preparation for war.
The diplomatic forum also seems to be pointing to the possibility of war.
The decisions being made, the preparations being taken, and the military
maneuvers that are unfolding on the geo-strategic chessboard are projecting
a prognosis and forecast towards the direction of mobilization for some form
of conflict in the Middle East.
In this context, people do not always realize that a war is never planned,
executed or even anticipated in a matter of weeks. Military operations take
months and even years to prepare. A classical example is Operation Overlord
(popularly identified as “D-Day”), which resulted in the Battle of Normandy
and the invasion of France. Operation Overlord took place on June 6, 1944,
but the preparations for the military operation took eighteen months,
“officially,” to set the stage for the invasion of the French coast. It was
during a meeting in Casablanca, Morocco in January, 1943 that the U.S.
President, F.D. Roosevelt, and the British Prime Minister, Winston
Churchill, outlined a strategy to invade Normandy.1
With regard to Iraq, the “Downing Street memo2” confirms that the decision
to go to war in 2003 was decided in 2002 by the United States and Britain,
and thus the preparations for war with Iraq were in reality started in 2002,
a year before the invasion. The preparations for the invasion of Iraq took
place at least a entire year to arrange.
The period from 1991 to 2003 has seen continuous military operations against
Iraq by the Anglo-American alliance. This period that has lasted for over a
decade saw stages of heavy bombardment and major air strikes on a crippled
Iraqi republic and its citizens. In reality the conditions for the
groundwork and preparations of the invasion and eventual occupation of Iraq
took over ten years to materialize. Iraq was weakened and its strength
diluted within these ten years.
Even prior to this decade of Anglo-American bombardment and U.N. sanctions,
Iraq was caught in an eight-year war with Iran in the 1980s. The war between
Iran and Iraq was also fuelled and organized by the United States to weaken
both. In retrospect the manipulation of a war between Iran and Iraq to
weaken both states seems to be strategic planning in preparation for future
military operations against them. In this time preparations were also being
made by securing the Balkans for future Anglo-American operations. The
Balkans is adjacent to the Middle East and is also a geographic extension of
the region. Preparations were made by expanding NATO, shifting military
bases eastward, and securing energy routes. Dismantling the state of
Yugoslavia was also a part of this objective. Yugoslavia was the regional
power of the Balkans and Southeast Europe. This was done through close
coordination between the Anglo-American alliance and NATO. Now all eyes are
on Iran and Syria. Will there be another Anglo-American initiated war in the
Middle East?
Overview of Naval Confrontation against Iran
The Pentagon has already drawn up plans for U.S. sponsored attacks on Iran
and Syria.3 Despite the public posturing of diplomacy by the United States
and Britain, just like the Iraq Invasion, Iran and Syria sense another
Anglo-American war in the horizon. Both countries have been strengthening
their defenses for the eventuality of war with the Anglo-American alliance.
A conflict against Iran and Syria, if it were to materialize, would be
unlike previous Anglo-American sponsored conflicts. It would be wider in
scope, deadlier, and have active aerial and water (naval) fronts.
Sea power would be of greater significance than in Yugoslavia, Afghanistan,
Iraq, and Lebanon. The United States would covet a quick victory. The
chances of this happening are unknown. If there were to be a conflict with
Iran, the United States and it partners would want to keep the Straits of
Hormuz open for the flow of international oil. The Straits of Hormuz are the
“energy lifeline of the world.”
The United States would without doubt quickly aim for the collapse of the
Iranian and Syrian commands and military structures.
It must be noted that the Iranian Armed Forces are characterized by well
structured military organization, with advanced military capabilities, when
compared to Yugoslavia, Afghanistan, Iraq, and Lebanon. Moreover, Iran has
been preparing for a scenario of war with the Anglo-American alliance for
almost a decade. These preparations were stepped up following the NATO-U.S.
led attack on Yugoslavia (1999).
The types of military units and weapons systems being deployed in the
Persian Gulf and Arabian Sea by the United States are considered to be best
suited for combat against Iran, also with a view to keeping the Straits of
Hormuz open for oil tankers. This also includes forces that would be able
to secure bridgeheads on the Iranian coastline. These U.S. forces consist of
early warning units, recognizance, amphibious elements, maritime search and
rescue units, minesweepers, and rapid deployment units.
U.S. Strike Groups: Cargo intended for War?
The U.S.S. Enterprise a U.S. Navy flagship is under deployment to the
Persian Gulf and the Arabian Sea. This includes all the warships and vessels
that compose Carrier Strike Group 12 (CSG 12) Destroyer Squadron 2 (DESRON
2), and Carrier Air Wing 1 (CVW 1). The stated objective for the deployment
of the U.S.S. Enterprise, a nuclear powered aircraft carrier, and other U.S.
Navy vessels is to conduct naval security operations and aerial missions in
the region. The deployment does not mention Iran, it is said to be part of
the U.S.-led “War on Terror” under “Operation Enduring Freedom.”
Originally the name for Operation Enduring Freedom was “Operation Infinite
Justice,” which highlights the unlimited scope and intentions of the War on
Terror. “Operation Iraqi Freedom” which envelops the Anglo-American invasion
and the continued occupation of Iraq is also a component of these
operations. A large number of U.S. warships are deployed in the Persian
Gulf, the Gulf of Oman, and the Arabian Sea.
While this deployment is said to be related to ongoing military operations
in Iraq and Afghanistan, the warships are carrying with them equipment which
is not intended for these two war theaters. Minesweepers and mine-hunters
have absolutely no use in landlocked Afghanistan and are not needed in Iraq
which has a maritime corridor and ports totally controlled by the
Anglo-American alliance.
Other warships in the Enterprise Strike Group include the destroyer U.S.S.
McFaul, the war frigate U.S.S. Nicholas, the battle cruiser U.S.S. Leyte
Gulf, the attack submarine U.S.S. Alexandria, and the “fast combat support
ship” U.S.N.S. Supply. The U.S.N.S. Supply will be a useful vessel in
confronting the Iranian forces in the Persian Gulf in close-quarter combat.
Speed will be an important factor in responding to potentially lethal
Iranian missile and anti-ship missile attacks.
The U.S.S. Enterprise carries with it a host of infiltration, aerial attack,
and rapid deployment units. This includes Marine Strike Fighter Squadron
251, Electronic Attack Squadron 137, and Airborne Early Warning Squadron
123. Squadron 123 will be vital in the event of a war with Iran in detecting
Iranian missiles and sending warnings of danger to the U.S. fleet. Special
mention should be made of the helicopter squadron specialized for combating
submarines traveling with the strike group. “Helicopter Anti-Submarine
Squadron 11” will be on board the U.S.S. Enterprise. The Persian Gulf is
known to be the home of the Iranian submarine fleet, the only indigenous
submarine fleet in the region.
The Eisenhower Strike Group, based in Norfolk, Virginia, has also received
orders to deploy to the Middle East. The strike group is led by the U.S.S.
Eisenhower, another nuclear battleship. It includes a cruiser, a destroyer,
a war frigate, a submarine escort, and U.S. Navy supply ships. One of these
two naval strike groups will position itself in the Gulf of Oman and the
Arabian Sea while the other naval strike group will position itself in the
Persian Gulf, both off the Iranian coast.
Another Strike Group Performs Anti-submarine Drills and sets sail for the
Persian Gulf
Another assault or strike group of U.S. warships, “Expeditionary Strike
Group 5,” are setting off to sea too. This strike group is setting sail from
Naval Station San Diego with the Persian Gulf in the Middle East as their
final destination. Over 6,000 U.S. Marines and Navy personnel will be
deployed to the Persian Gulf and Anglo-American occupied Iraq from San
Diego.4 Approximately 4,000 U.S. sailors and 2,200 U.S. Marines from the
15th Marine Expeditionary Unit at Camp Pendleton will make the bulk of the
force. The warships and the servicemen they carry will reportedly have a
tour of duty in the Persian Gulf and “possibly” Anglo-American occupied Iraq
for half a year. They will also be joined by other ships including a Coast
Guard vessel. A Marine air wing of 38 helicopters also is on board and
travelling to the Persian Gulf.
The Marine contingent of the force is not destined for deployment in Iraq.
It must be noted that the 15th Marine Expeditionary Unit is, however, able
to “rapidly deploy” on “order” using large landing craft stowed aboard the
strike group’s warships. If ordered this rapid deployment unit has the
strong potential of being used as part of an invasion force against Iran
from the Persian Gulf. The Marine unit would be ideal in being part of an
operation with the objective(s) of securing Iranian ports to create
beachheads for an invasion.
Expeditionary Strike Group 5 (ESG 5) is being led by the assault ship the
U.S.S. Boxer as the flagship. Expeditionary Strike Group 5 (ESG 5) will also
consist of the U.S.S. Dubuque, a “dock landing vessel,” the naval transport
ship the U.S.S. Comstock, the battle cruiser the U.S.S. Bunker Hill, the
guided-missile hauling destroyer the U.S.S. Benfold, and the guided-missile
hauling destroyer the U.S.S. Howard. Once again, these vessels will all be
deployed in the Persian Gulf, in nearby proximity to the Iranian coast.
It is noteworthy to mention that the command and control structure of the
group will be separated from the vessels for maximum flexibility. Also
before the U.S. Naval strike group reaches the Persian Gulf it will be
performing “anti-submarine drills and operations.” The anti-submarine
exercises will take place off the coast of Hawaii, in the Pacific Ocean.
This can be training and preparation intended for combating the Iranian
submarine fleet in the Persian Gulf and Arabian Sea. The warships will also
be joined in Hawaii by Seattle-based U.S. Coast Guard and by a Canadian navy
frigate, the H.M.C.S. Ottawa.
Canada contributes to the American-led naval build-up in the Persian Gulf
The Conservative government of Prime Minister Stephen Harper is actively
collaborating in this military endeavor.
Canadian foreign policy has been steadily and successively militarized by
two successive governments.
The government of Prime Minister Paul Martin (Liberal) implemented the
“three-dimensional policy” of the “3-Ds” (“Diplomacy”, “Development,” and
“Defense"), adding a military component to Canadian foreign aid and
development assistance.
The 3-Ds brought Canada into performing as more active role in U.S.-led
operations in NATO garrisoned Afghanistan. Despite the public protest,
Canada has become an integral member of the Anglo-American military
alliance.
Canada's involvement is not limited to Afghanistan as suggested by the press
reports and official statements.
The H.M.C.S. Ottawa has been dispatched to the Persian Gulf, leaving in
September, from British Columbia. Officially the H.M.C.S. Ottawa is being
deployed as part of Canada's contribution to fighting the “War on
Terrorism.” The Canadian vessel is the first publicly known ship to be
deployed to the waters of the Middle East in about a year.5 The Canadian
vessel is slated to be fully integrated into "Expeditionary Strike Group 5
(ESG 5), which will be seafaring in the Persian Gulf and the Gulf of Oman,
off the Iranian coast.
HMCS Ottawa
The Canadian Pacific Fleet vessel, the H.M.C.S. Ottawa, will be the
twentieth official Canadian naval deployment in support of the United States
and Britain in the War on Terrorism. About 225 personnel will be on board
the Canadian Navy ship, including a Sea King helicopter detachment.6
While the H.M.C.S. Ottawa is supporting the American-led war on terrorism,
it is also to participate in anti-submarine exercises off the coast of
Hawaii.
For what purpose are these exercises being conducted? How many countries in
the Middle East or Persian Gulf have submarines? Iran is the only country in
the Persian Gulf, which is not an ally of the U.S., which possesses an
indigenous submarine fleet.
U.S. Coast Guard implicated in the Conflict with Iran
The U.S. Coast Guard is the fifth and smallest branch of the U.S. Armed
Forces. The other four branches of the U.S. military are the U.S. Marines,
Navy, Air Force, and the Army. The U.S. Coast Guard is unique in that it is
a force that is one-third military, one-third law enforcement, and one-third
a maritime search and rescue entity. In peacetime the U.S. Coast Guard falls
under the jurisdiction and mandate of the U.S. Department of Homeland
Security, but at the Defense Department’s request, the Coast Guard can
operate under military missions at sea. In a time of war when the need is
urgent, the U.S. Coast Guard falls under the direct jurisdiction of the
Pentagon as a military force.
The U.S. Coast Guard is beginning to see more use and deployment with the
U.S. Navy. Coast Guards are being prepared for operations in the Persian
Gulf and Arabian Sea. Although this is not an unusual event by itself, it
can be significant in relationship to other events and military movements
unfolding and taking place. The U.S. Coast Guard will be of great value in
the event of a conflict with Iran. U.S. Coast Guard can “enter ports that
other warships can not.”7 This would be useful in securing bridgeheads of
entry for an invasion force into Iran. The U.S. Coast Guard is also
specialized in maritime search and rescue operations, unlike the U.S. Navy
or the Marines. This is significant since it is predicted by military
analysts that there will definitely be U.S. vessels that will be destroyed
and heavily damaged in the Persian Gulf by the Iranian Armed Forces in the
event of a conflict between the United States and Iran. U.S. Coast Guard
will be crucial in rescue operations, besides speedy operations, protecting
U.S. Navy ships, and the entry of ports or shores which other warships can
not enter.
“What we bring to the strike group is the ability to conduct intercepts and
maritime security operations,” and, “The tools used to fight crime and save
lives at home [in the United States] are valuable in the war zone [the
Persian Gulf],” elucidates Lee Alexander the commander of the U.S.S.
Midgett8
Media Reports of Planned Attacks on Iran and Syria
There have been several reports in the international media, which have
provided details regarding the military plans to attack Iran and Syria.
These include reports from Israeli sources on attacks intended for Syria,
Iran, and Lebanon. Some of these media reports even quote Members of the
Israeli Knesset (MKs).9 The German and European media have published various
articles on possible NATO and Turkish involvement in the planned U.S.air
strikes on Iran. The Times (U.K.) reported in March, 2006 that:
“When Major-General Axel Tüttelmann, the head of NATO’s Airborne Early
Warning and Control Force, showed off an AWACs early warning surveillance
plane in Israel a fortnight ago, he caused a flurry of concern back at
[NATO] headquarters in Brussels. It was not his demonstration that raised
eyebrows, but what he said about NATO’s possible involvement in any future
[Anglo-American] military s | |
