[Pages H7925-H7951]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MILITARY COMMISSIONS ACT OF 2006
Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 1054, I
call up the Senate bill (S. 3930) to authorize trial by military
commission for violations of the law of war, and for other purposes,
and ask for its immediate consideration.
The Clerk read the title of the Senate bill.
The text of the Senate bill is as follows:
S. 3930
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Military
Commissions Act of 2006''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Construction of Presidential authority to establish military
commissions.
Sec. 3. Military commissions.
Sec. 4. Amendments to Uniform Code of Military Justice.
Sec. 5. Treaty obligations not establishing grounds for certain claims.
Sec. 6. Implementation of treaty obligations.
Sec. 7. Habeas corpus matters.
Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to
protection of certain United States Government personnel.
Sec. 9. Review of judgments of military commissions.
Sec. 10. Detention covered by review of decisions of Combatant Status
Review Tribunals of propriety of detention.
SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH
MILITARY COMMISSIONS.
The authority to establish military commissions under
chapter 47A of title 10, United States Code, as added by
section 3(a), may not be construed to alter or limit the
authority of the President under the Constitution of the
United States and laws of the United States to establish
military commissions for areas declared to be under martial
law or in occupied territories should circumstances so
require.
[[Page H7926]]
SEC. 3. MILITARY COMMISSIONS.
(a) Military Commissions.--
(1) In general.--Subtitle A of title 10, United States
Code, is amended by inserting after chapter 47 the following
new chapter:
``CHAPTER 47A--MILITARY COMMISSIONS
``Subchapter
``I. General Provisions............................................948a
``II. Composition of Military Commissions..........................948h
``III. Pre-Trial Procedure.........................................948q
``IV. Trial Procedure..............................................949a
``V. Sentences.....................................................949s
``VI. Post-Trial Procedure and Review of Military Commissions......950a
``VII. Punitive Matters............................................950p
``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--
``(i) a person who has engaged in hostilities or who has
purposefully and materially supported hostilities against the
United States or its co-belligerents who is not a lawful
enemy combatant (including a person who is part of the
Taliban, al Qaeda, or associated forces); or
``(ii) a person who, before, on, or after the date of the
enactment of the Military Commissions Act of 2006, has been
determined to be an unlawful enemy combatant by a Combatant
Status Review Tribunal or another competent tribunal
established under the authority of the President or the
Secretary of Defense.
``(B) Co-belligerent.--In this paragraph, the term `co-
belligerent', with respect to the United States, means any
State or armed force joining and directly engaged with the
United States in hostilities or directly supporting
hostilities against a common enemy.
``(2) Lawful enemy combatant.--The term `lawful enemy
combatant' means a person who is--
``(A) a member of the regular forces of a State party
engaged in hostilities against the United States;
``(B) a member of a militia, volunteer corps, or organized
resistance movement belonging to a State party engaged in
such hostilities, which are under responsible command, wear a
fixed distinctive sign recognizable at a distance, carry
their arms openly, and abide by the law of war; or
``(C) a member of a regular armed force who professes
allegiance to a government engaged in such hostilities, but
not recognized by the United States.
``(3) Alien.--The term `alien' means a person who is not a
citizen of the United States.
``(4) Classified information.--The term `classified
information' means the following:
``(A) Any information or material that has been 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)).
``(5) Geneva conventions.--The term `Geneva Conventions'
means the international conventions signed at Geneva on
August 12, 1949.
``Sec. 948b. Military commissions generally
``(a) Purpose.--This chapter establishes procedures
governing the use of military commissions to try alien
unlawful enemy combatants engaged in hostilities against the
United States for violations of the law of war and other
offenses triable by military commission.
``(b) Authority for Military Commissions Under This
Chapter.--The President is authorized to establish military
commissions under this chapter for offenses triable by
military commission as provided in this chapter.
``(c) Construction of Provisions.--The procedures for
military commissions set forth in this chapter are based upon
the procedures for trial by general courts-martial under
chapter 47 of this title (the Uniform Code of Military
Justice). Chapter 47 of this title does not, by its terms,
apply to trial by military commission except as specifically
provided in this chapter. The judicial construction and
application of that chapter are not binding on military
commissions established under this chapter.
``(d) Inapplicability of Certain Provisions.--(1) The
following provisions of this title shall not apply to trial
by military commission under this chapter:
``(A) Section 810 (article 10 of the Uniform Code of
Military Justice), relating to speedy trial, including any
rule of courts-martial relating to speedy trial.
``(B) Sections 831(a), (b), and (d) (articles 31(a), (b),
and (d) of the Uniform Code of Military Justice), relating to
compulsory self-incrimination.
``(C) Section 832 (article 32 of the Uniform Code of
Military Justice), relating to pretrial investigation.
``(2) Other provisions of chapter 47 of this title shall
apply to trial by military commission under this chapter only
to the extent provided by this chapter.
``(e) Treatment of Rulings and Precedents.--The findings,
holdings, interpretations, and other precedents of military
commissions under this chapter may not be introduced or
considered in any hearing, trial, or other proceeding of a
court-martial convened under chapter 47 of this title. The
findings, holdings, interpretations, and other precedents of
military commissions under this chapter may not form the
basis of any holding, decision, or other determination of a
court-martial convened under that chapter.
``(f) Status of Commissions Under Common Article 3.--A
military commission established under this chapter is a
regularly constituted court, affording all the necessary
`judicial guarantees which are recognized as indispensable by
civilized peoples' for purposes of common Article 3 of the
Geneva Conventions.
``(g) Geneva Conventions Not Establishing Source of
Rights.--No alien unlawful enemy combatant subject to trial
by military commission under this chapter may invoke the
Geneva Conventions as a source of rights.
``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 or the law of war when committed
by an alien unlawful enemy combatant before, on, or after
September 11, 2001.
``(b) Lawful Enemy Combatants.--Military commissions under
this chapter shall not have jurisdiction over lawful enemy
combatants. Lawful enemy combatants who violate the law of
war are subject to chapter 47 of this title. Courts-martial
established under that chapter shall have jurisdiction to try
a lawful enemy combatant for any offense made punishable
under this chapter.
``(c) Determination of Unlawful Enemy Combatant Status
Dispositive.--A finding, whether before, on, or after the
date of the enactment of the Military Commissions Act of
2006, by a Combatant Status Review Tribunal or another
competent tribunal established under the authority of the
President or the Secretary of Defense that a person is an
unlawful enemy combatant is dispositive for purposes of
jurisdiction for trial by military commission under this
chapter.
``(d) Punishments.--A military commission under this
chapter may, under such limitations as the Secretary of
Defense may prescribe, adjudge any punishment not forbidden
by this chapter, including the penalty of death when
authorized under this chapter or the law of war.
``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 judge of a military commission.
``948k. Detail of trial counsel and defense counsel.
``948l. Detail or employment of reporters and interpreters.
``948m. Number of members; excuse of members; absent and additional
members.
``Sec. 948h. Who may convene military commissions
``Military commissions under this chapter may be convened
by the Secretary of Defense or by any officer or official of
the United States designated by the Secretary for that
purpose.
``Sec. 948i. Who may serve on military commissions
``(a) In General.--Any commissioned officer of the armed
forces on active duty is eligible to serve on a military
commission under this chapter.
``(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 best qualified for the duty by
reason of age, education, training, experience, length of
service, and judicial temperament. No member of an armed
force is eligible to serve as a member of a military
commission when such member is the accuser or a witness for
the prosecution or has acted as an investigator or counsel in
the same case.
``(c) Excuse of Members.--Before a military commission
under this chapter is assembled for the trial of a case, the
convening authority may excuse a member from participating in
the case.
``Sec. 948j. Military judge of a military commission
``(a) Detail of Military Judge.--A military judge shall be
detailed to each military
[[Page H7927]]
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 (e), trial
counsel detailed for a military commission under this chapter
must be--
``(1) a judge advocate (as that term is defined in section
801 of this title (article 1 of the Uniform Code of Military
Justice) who--
``(A) is a graduate of an accredited law school or is a
member of the bar of a Federal court or of the highest court
of a State; and
``(B) is certified as competent to perform duties as trial
counsel before general courts-martial by the Judge Advocate
General of the armed force of which he is a member; or
``(2) a civilian who--
``(A) is a member of the bar of a Federal court or of the
highest court of a State; and
``(B) is otherwise qualified to practice before the
military commission pursuant to regulations prescribed by the
Secretary of Defense.
``(c) Military Defense Counsel.--Subject to subsection (e),
military defense counsel detailed for a military commission
under this chapter must be a judge advocate (as so defined)
who is--
``(1) a graduate of an accredited law school or is a member
of the bar of a Federal court or of the highest court of a
State; and
``(2) certified as competent to perform duties as defense
counsel before general courts-martial by the Judge Advocate
General of the armed force of which he is a member.
``(d) Chief Prosecutor; Chief Defense Counsel.--(1) The
Chief Prosecutor in a military commission under this chapter
shall meet the requirements set forth in subsection (b)(1).
``(2) The Chief Defense Counsel in a military commission
under this chapter shall meet the requirements set forth in
subsection (c)(1).
``(e) Ineligibility of Certain Individuals.--No person who
has acted as an investigator, military judge, or member of a
military commission under this chapter in any case may act
later as trial counsel or military defense counsel in the
same case. No person who has acted for the prosecution before
a military commission under this chapter may act later in the
same case for the defense, nor may any person who has acted
for the defense before a military commission under this
chapter act later in the same case for the prosecution.
``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 and for the accused.
``(c) Transcript; Record.--The transcript of a military
commission under this chapter shall be under the control of
the convening authority of the 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 accused before a military
commission under this chapter may be sentenced to a penalty
of death, the military commission shall have the number of
members prescribed by section 949m(c) of this title.
``(b) Excuse of Members.--No member of a military
commission under this chapter may be absent or excused after
the military commission has been assembled for the trial of a
case unless excused--
``(1) as a result of challenge;
``(2) by the military judge for physical disability or
other good cause; or
``(3) by order of the convening authority for good cause.
``(c) Absent and Additional Members.--Whenever a military
commission under this chapter is reduced below the number of
members required by subsection (a), the trial may not proceed
unless the convening authority details new members sufficient
to provide not less than such number. The trial may proceed
with the new members present after the recorded evidence
previously introduced before the members has been read to the
military commission in the presence of the military judge,
the accused (except as provided in section 949d of this
title), and counsel for both sides.
``SUBCHAPTER III--PRE-TRIAL PROCEDURE
``Sec.
``948q. Charges and specifications.
``948r. 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 shall not be admissible
in a military commission under this chapter, except against a
person accused of torture as evidence that the statement was
made.
``(c) Statements Obtained Before Enactment of Detainee
Treatment Act of 2005.--A statement obtained before December
30, 2005 (the date of the enactment of the Defense Treatment
Act of 2005) in which the degree of coercion is disputed may
be admitted only if the military judge finds that--
``(1) the totality of the circumstances renders the
statement reliable and possessing sufficient probative value;
and
``(2) the interests of justice would best be served by
admission of the statement into evidence.
``(d) Statements Obtained After Enactment of Detainee
Treatment Act of 2005.--A statement obtained on or after
December 30, 2005 (the date of the enactment of the Defense
Treatment Act of 2005) in which the degree of coercion is
disputed may be admitted only if the military judge finds
that--
``(1) the totality of the circumstances renders the
statement reliable and possessing sufficient probative value;
``(2) the interests of justice would best be served by
admission of the statement into evidence; and
``(3) the interrogation methods used to obtain the
statement do not amount to cruel, inhuman, or degrading
treatment prohibited by section 1003 of the Detainee
Treatment Act of 2005.
``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
[[Page H7928]]
and military defense counsel a copy of the charges upon which
trial is to be had. Such charges shall be served in English
and, if appropriate, in another language that the accused
understands. Such service shall be made sufficiently in
advance of trial to prepare a defense.
``SUBCHAPTER IV--TRIAL PROCEDURE
``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.
``Sec. 949a. Rules
``(a) Procedures and Rules of Evidence.--Pretrial, trial,
and post-trial procedures, including elements and modes of
proof, for cases triable by military commission under this
chapter may be prescribed by the Secretary of Defense, in
consultation with the Attorney General. Such procedures
shall, so far as the Secretary considers practicable or
consistent with military or intelligence activities, apply
the principles of law and the rules of evidence in trial by
general courts-martial. Such procedures and rules of evidence
may not be contrary to or inconsistent with this chapter.
``(b) Rules for Military Commission.--(1) Notwithstanding
any departures from the law and the rules of evidence in
trial by general courts-martial authorized by subsection (a),
the procedures and rules of evidence in trials by military
commission under this chapter shall include the following:
``(A) The accused shall be permitted to present evidence in
his defense, to cross-examine the witnesses who testify
against him, and to examine and respond to evidence admitted
against him on the issue of guilt or innocence and for
sentencing, as provided for by this chapter.
``(B) The accused shall be present at all sessions of the
military commission (other than those for deliberations or
voting), except when excluded under section 949d of this
title.
``(C) The accused shall receive the assistance of counsel
as provided for by section 948k.
``(D) The accused shall be permitted to represent himself,
as provided for by paragraph (3).
``(2) In establishing procedures and rules of evidence for
military commission proceedings, the Secretary of Defense may
prescribe the following provisions:
``(A) Evidence shall be admissible if the military judge
determines that the evidence would have probative value to a
reasonable person.
``(B) Evidence shall not be excluded from trial by military
commission on the grounds that the evidence was not seized
pursuant to a search warrant or other authorization.
``(C) A statement of the accused that is otherwise
admissible shall not be excluded from trial by military
commission on grounds of alleged coercion or compulsory self-
incrimination so long as the evidence complies with the
provisions of section 948r of this title.
``(D) Evidence shall be admitted as authentic so long as--
``(i) the military judge of the military commission
determines that there is sufficient basis to find that the
evidence is what it is claimed to be; and
``(ii) the military judge instructs the members that they
may consider any issue as to authentication or identification
of evidence in determining the weight, if any, to be given to
the evidence.
``(E)(i) Except as provided in clause (ii), hearsay
evidence not otherwise admissible under the rules of evidence
applicable in trial by general courts-martial may be admitted
in a trial by military commission if the proponent of the
evidence makes known to the adverse party, sufficiently in
advance to provide the adverse party with a fair opportunity
to meet the evidence, the intention of the proponent to offer
the evidence, and the particulars of the evidence (including
information on the general circumstances under which the
evidence was obtained). The disclosure of evidence under the
preceding sentence is subject to the requirements and
limitations applicable to the disclosure of classified
information in section 949j(c) of this title.
``(ii) Hearsay evidence not otherwise admissible under the
rules of evidence applicable in trial by general courts-
martial shall not be admitted in a trial by military
commission if the party opposing the admission of the
evidence demonstrates that the evidence is unreliable or
lacking in probative value.
``(F) The military judge shall exclude any evidence the
probative value of which is substantially outweighed--
``(i) by the danger of unfair prejudice, confusion of the
issues, or misleading the commission; or
``(ii) by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
``(3)(A) The accused in a military commission under this
chapter who exercises the right to self-representation under
paragraph (1)(D) shall conform his deportment and the conduct
of the defense to the rules of evidence, procedure, and
decorum applicable to trials by military commission.
``(B) Failure of the accused to conform to the rules
described in subparagraph (A) may result in a partial or
total revocation by the military judge of the right of self-
representation under paragraph (1)(D). In such case, the
detailed defense counsel of the accused or an appropriately
authorized civilian counsel shall perform the functions
necessary for the defense.
``(c) Delegation of Authority To Prescribe Regulations.--
The Secretary of Defense may delegate the authority of the
Secretary to prescribe regulations under this chapter.
``(d) 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--
``(A) the action of a military commission under this
chapter, or any member thereof, in reaching the findings or
sentence in any case;
``(B) the action of any convening, approving, or reviewing
authority with respect to his judicial acts; or
``(C) the exercise of professional judgment by trial
counsel or defense counsel.
``(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,
detailed military counsel shall act as associate counsel.
``(6) The accused is not entitled to be represented by more
than one military counsel.
[[Page H7929]]
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) 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) The military judge may close to the public all or a
portion of the proceedings under paragraph (1) only upon
making a specific finding that such closure is necessary to--
``(A) protect information the disclosure of which could
reasonably be expected to cause damage to the national
security, including intelligence or law enforcement sources,
methods, or activities; or
``(B) ensure the physical safety of individuals.
``(3) A finding under paragraph (2) may be based upon a
presentation, including a presentation ex parte or in camera,
by either trial counsel or defense counsel.
``(e) Exclusion of Accused From Certain Proceedings.--The
military judge may exclude the accused from any portion of a
proceeding upon a determination that, after being warned by
the military judge, the accused persists in conduct that
justifies exclusion from the courtroom--
``(1) to ensure the physical safety of individuals; or
``(2) to prevent disruption of the proceedings by the
accused.
``(f) Protection of Classified Information.--
``(1) National security privilege.--(A) Classified
information shall be protected and is privileged from
disclosure if disclosure would be detrimental to the national
security. The rule in the preceding sentence applies to all
stages of the proceedings of military commissions under this
chapter.
``(B) The privilege referred to in subparagraph (A) may be
claimed by the head of the executive or military department
or government agency concerned based on a finding by the head
of that department or agency that--
``(i) the information is properly classified; and
``(ii) disclosure of the information would be detrimental
to the national security.
``(C) A person who may claim the privilege referred to in
subparagraph (A) may authorize a representative, witness, or
trial counsel to claim the privilege and make the finding
described in subparagraph (B) on behalf of such person. The
authority of the representative, witness, or trial counsel to
do so is presumed in the absence of evidence to the contrary.
``(2) Introduction of classified information.--
``(A) Alternatives to disclosure.--To protect classified
information from disclosure, the military judge, upon motion
of trial counsel, shall authorize, to the extent
practicable--
``(i) the deletion of specified items of classified
information from documents to be introduced as evidence
before the military commission;
``(ii) the substitution of a portion or summary of the
information for such classified documents; or
``(iii) the substitution of a statement of relevant facts
that the classified information would tend to prove.
``(B) Protection of sources, methods, or activities.--The
military judge, upon motion of trial counsel, shall permit
trial counsel to introduce otherwise admissible evidence
before the military commission, while protecting from
disclosure the sources, methods, or activities by which the
United States acquired the evidence if the military judge
finds that (i) the sources, methods, or activities by which
the United States acquired the evidence are classified, and
(ii) the evidence is reliable. The military judge may require
trial counsel to present to the military commission and the
defense, to the extent practicable and consistent with
national security, an unclassified summary of the sources,
methods, or activities by which the United States acquired
the evidence.
``(C) Assertion of national security privilege at trial.--
During the examination of any witness, trial counsel may
object to any question, line of inquiry, or motion to admit
evidence that would require the disclosure of classified
information. Following such an objection, the military judge
shall take suitable action to safeguard such classified
information. Such action may include the review of trial
counsel's claim of privilege by the military judge in camera
and on an ex parte basis, and the delay of proceedings to
permit trial counsel to consult with the department or agency
concerned as to whether the national security privilege
should be asserted.
``(3) Consideration of privilege and related materials.--A
claim of privilege under this subsection, and any materials
submitted in support thereof, shall, upon request of the
Government, be considered by the military judge in camera and
shall not be disclosed to the accused.
``(4) Additional regulations.--The Secretary of Defense may
prescribe additional regulations, consistent with this
subsection, for the use and protection of classified
information during proceedings of military commissions under
this chapter. A report on any regulations so prescribed, or
modified, shall be submitted to the Committees on Armed
Services of the Senate and the House of Representatives not
later than 60 days before the date on which such regulations
or modifications, as the case may be, go into effect.
``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
[[Page H7930]]
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
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) Protection of Classified Information.--(1) With
respect to the discovery obligations of trial counsel under
this section, the military judge, upon motion of trial
counsel, shall authorize, to the extent practicable--
``(A) the deletion of specified items of classified
information from documents to be made available to the
accused;
``(B) the substitution of a portion or summary of the
information for such classified documents; or
``(C) the substitution of a statement admitting relevant
facts that the classified information would tend to prove.
``(2) The military judge, upon motion of trial counsel,
shall authorize trial counsel, in the course of complying
with discovery obligations under this section, to protect
from disclosure the sources, methods, or activities by which
the United States acquired evidence if the military judge
finds that the sources, methods, or activities by which the
United States acquired such evidence are classified. The
military judge may require trial counsel to provide, to the
extent practicable, an unclassified summary of the sources,
methods, or activities by which the United States acquired
such evidence.
``(d) Exculpatory Evidence.--(1) As soon as practicable,
trial counsel shall disclose to the defense the existence of
any evidence known to trial counsel that reasonably tends to
exculpate the accused. Where exculpatory evidence is
classified, the accused shall be provided with an adequate
substitute in accordance with the procedures under subsection
(c).
``(2) In this subsection, the term `evidence known to trial
counsel', in the case of exculpatory evidence, means
exculpatory evidence that the prosecution would be required
to disclose in a trial by general court-martial under chapter
47 of this title.
``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 the members--
``(1) that the accused must be presumed to be innocent
until his guilt is established by legal and competent
evidence beyond a reasonable doubt;
``(2) that in the case being considered, if there is a
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 or the law of war for an offense of which the
accused has been found guilty;
``(B) trial counsel expressly sought the penalty of death
by filing an appropriate notice in advance of trial;
``(C) the accused is convicted of the offense by the
concurrence of all the members present at the time the vote
is taken; and
``(D) all the members present at the time the vote is taken
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 consistent with the requirements of
section 949d of this title. 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.
[[Page H7931]]
``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. Appellate referral; 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; procedures for execution of sentence of
death.
``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 after the 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 or section 949j(c) 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
[[Page H7932]]
this section, the Court 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 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 the Court of
Military Commission Review under this section, the Court 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 and the
laws of the United States.
``(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.
``Sec. 950i. Execution of sentence; procedures for execution
of sentence of death
``(a) In General.--The Secretary of Defense is authorized
to carry out a sentence imposed by a military commission
under this chapter in accordance with such procedures as the
Secretary may prescribe.
``(b) Execution of Sentence of Death Only Upon Approval by
the President.--If the sentence of a military commission
under this chapter extends to death, that part of the
sentence providing for death may not be executed until
approved by the President. In such a case, the President may
commute, remit, or suspend the sentence, or any part thereof,
as he sees fit.
``(c) Execution of Sentence of Death Only Upon Final
Judgment of Legality of Proceedings.--(1) If the sentence of
a military commission under this chapter extends to death,
the sentence may not be executed until there is a final
judgment as to the legality of the proceedings (and with
respect to death, approval under subsection (b)).
``(2) A judgment as to legality of proceedings is final for
purposes of paragraph (1) when--
``(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.
``(d) Suspension of Sentence.--The Secretary of the
Defense, or the convening authority acting on the case (if
other than the Secretary), may suspend the execution of any
sentence or part thereof in the case, except a sentence of
death.
``Sec. 950j. Finality 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
Military 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; 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
[[Page H7933]]
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 who 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'
means--
``(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' means
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'
means 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, but does not include civilian property
that is a military objective.
``(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.--Any person subject to
this chapter who intentionally kills one or more protected
persons shall be punished by death or such other punishment
as a military commission under this chapter may direct.
``(2) Attacking civilians.--Any person subject to this
chapter who intentionally engages in an attack upon a
civilian population as such, or individual civilians not
taking active part in hostilities, shall be punished, if
death results to one or more of the victims, by death or such
other punishment as a military commission under this chapter
may direct, and, if death does not result to any of the
victims, by such punishment, other than death, as a military
commission under this chapter may direct.
``(3) Attacking civilian objects.--Any person subject to
this chapter who intentionally engages in an attack upon a
civilian object that is not a military objective shall be
punished as a military commission under this chapter may
direct.
``(4) Attacking protected property.--Any person subject to
this chapter who intentionally engages in an attack upon
protected property shall be punished as a military commission
under this chapter may direct.
``(5) Pillaging.--Any person subject to this chapter who
intentionally and in the absence of military necessity
appropriates or seizes property for private or personal use,
without the consent of a person with authority to permit such
appropriation or seizure, shall be punished as a military
commission under this chapter may direct.
``(6) Denying quarter.--Any person subject to this chapter
who, with effective command or control over subordinate
groups, declares, orders, or otherwise indicates to those
groups that there shall be no survivors or surrender
accepted, with the intent to threaten an adversary or to
conduct hostilities such that there would be no survivors or
surrender accepted, shall be punished as a military
commission under this chapter may direct.
``(7) Taking hostages.--Any person subject to this chapter
who, having knowingly seized or detained one or more persons,
threatens to kill, injure, or continue to detain such person
or persons with the intent of compelling any nation, person
other than the hostage, or group of persons to act or refrain
from acting as an explicit or implicit condition for the
safety or release of such person or persons, shall be
punished, if death results to one or more of the victims, by
death or such other punishment as a military commission under
this chapter may direct, and, if death does not result to any
of the victims, by such punishment, other than death, as a
military commission under this chapter may direct.
``(8) Employing poison or similar weapons.--Any person
subject to this chapter who intentionally, as a method of
warfare, employs a substance or weapon that releases a
substance that causes death or serious and lasting damage to
health in the ordinary course of events, through its
asphyxiating, bacteriological, or toxic properties, shall be
punished, if death results to one or more of the victims, by
death or such other punishment as a military commission under
this chapter may direct, and, if death does not result to any
of the victims, by such punishment, other than death, as a
military commission under this chapter may direct.
``(9) Using protected persons as a shield.--Any person
subject to this chapter who positions, or otherwise takes
advantage of, a protected person with the intent to shield a
military objective from attack, or to shield, favor, or
impede military operations, shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims,
by such punishment, other than death, as a military
commission under this chapter may direct.
``(10) Using protected property as a shield.--Any person
subject to this chapter who positions, or otherwise takes
advantage of the location of, protected property with the
intent to shield a military objective from attack, or to
shield, favor, or impede military operations, shall be
punished as a military commission under this chapter may
direct.
``(11) Torture.--
``(A) Offense.--Any person subject to this chapter who
commits an act specifically intended to inflict severe
physical or mental pain or suffering (other than pain or
suffering incidental to lawful sanctions) upon another person
within his custody or physical control for the purpose of
obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination
of any kind, shall be punished, if death results to one or
more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a military commission under
this chapter may direct.
``(B) Severe mental pain or suffering defined.--In this
section, 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.--
``(A) Offense.--Any person subject to this chapter who
commits an act intended to inflict severe or serious physical
or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions), including serious physical
abuse, upon another within his custody or control shall be
punished, if death results to the victim, by death or such
other punishment as a military commission under this chapter
may direct, and, if death does not result to the victim, by
such punishment, other than death, as a military commission
under this chapter may direct.
``(B) Definitions.--In this paragraph:
``(i) The term `serious physical pain or suffering' means
bodily injury that involves--
[[Page H7934]]
``(I) a substantial risk of death;
``(II) extreme physical pain;
``(III) a burn or physical disfigurement of a serious
nature (other than cuts, abrasions, or bruises); or
``(IV) significant loss or impairment of the function of a
bodily member, organ, or mental faculty.
``(ii) The term `severe mental pain or suffering' has the
meaning given that term in section 2340(2) of title 18.
``(iii) The term `serious mental pain or suffering' has the
meaning given the term `severe mental pain or suffering' in
section 2340(2) of title 18, except that--
``(I) the term `serious' shall replace the term `severe'
where it appears; and
``(II) as to conduct occurring after the date of the
enactment of the Military Commissions Act of 2006, the term
`serious and non-transitory mental harm (which need not be
prolonged)' shall replace the term `prolonged mental harm'
where it appears.
``(13) Intentionally causing serious bodily injury.--
``(A) Offense.--Any person subject to this chapter who
intentionally causes serious bodily injury to one or more
persons, including lawful combatants, in violation of the law
of war shall be punished, if death results to one or more of
the victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death does
not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``(B) Serious bodily injury defined.--In this paragraph,
the term `serious bodily injury' means bodily injury which
involves--
``(i) a substantial risk of death;
``(ii) extreme physical pain;
``(iii) protracted and obvious disfigurement; or
``(iv) protracted loss or impairment of the function of a
bodily member, organ, or mental faculty.
``(14) Mutilating or maiming.--Any person subject to this
chapter who intentionally injures one or more protected
persons by disfiguring the person or persons by any
mutilation of the person or persons, or by permanently
disabling any member, limb, or organ of the body of the
person or persons, without any legitimate medical or dental
purpose, shall be punished, if death results to one or more
of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a military commission under
this chapter may direct.
``(15) Murder in violation of the law of war.--Any person
subject to this chapter who intentionally kills one or more
persons, including lawful combatants, in violation of the law
of war shall be punished by death or such other punishment as
a military commission under this chapter may direct.
``(16) Destruction of property in violation of the law of
war.--Any person subject to this chapter who intentionally
destroys property belonging to another person in violation of
the law of war shall punished as a military commission under
this chapter may direct.
``(17) Using treachery or perfidy.--Any person subject to
this chapter who, after inviting the confidence or belief of
one or more persons that they were entitled to, or obliged to
accord, protection under the law of war, intentionally makes
use of that confidence or belief in killing, injuring, or
capturing such person or persons shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims,
by such punishment, other than death, as a military
commission under this chapter may direct.
``(18) Improperly using a flag of truce.--Any person
subject to this chapter who uses a flag of truce to feign an
intention to negotiate, surrender, or otherwise suspend
hostilities when there is no such intention shall be punished
as a military commission under this chapter may direct.
``(19) Improperly using a distinctive emblem.--Any person
subject to this chapter who intentionally uses a distinctive
emblem recognized by the law of war for combatant purposes in
a manner prohibited by the law of war shall be punished as a
military commission under this chapter may direct.
``(20) Intentionally mistreating a dead body.--Any person
subject to this chapter who intentionally mistreats the body
of a dead person, without justification by legitimate
military necessity, shall be punished as a military
commission under this chapter may direct.
``(21) Rape.--Any person subject to this chapter who
forcibly or with coercion or threat of force wrongfully
invades the body of a person by penetrating, however
slightly, the anal or genital opening of the victim with any
part of the body of the accused, or with any foreign object,
shall be punished as a military commission under this chapter
may direct.
``(22) Sexual assault or abuse.--Any person subject to this
chapter who forcibly or with coercion or threat of force
engages in sexual contact with one or more persons, or causes
one or more persons to engage in sexual contact, shall be
punished as a military commission under this chapter may
direct.
``(23) Hijacking or hazarding a vessel or aircraft.--Any
person subject to this chapter who intentionally seizes,
exercises unauthorized control over, or endangers the safe
navigation of a vessel or aircraft that is not a legitimate
military objective shall be punished, if death results to one
or more of the victims, by death or such other punishment as
a military commission under this chapter may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a military commission under
this chapter may direct.
``(24) Terrorism.--Any person subject to this chapter who
intentionally kills or inflicts great bodily harm on one or
more protected persons, or intentionally engages in an act
that evinces a wanton disregard for human life, in a manner
calculated to influence or affect the conduct of government
or civilian population by intimidation or coercion, or to
retaliate against government conduct, shall be punished, if
death results to one or more of the victims, by death or such
other punishment as a military commission under this chapter
may direct, and, if death does not result to any of the
victims, by such punishment, other than death, as a military
commission under this chapter may direct.
``(25) Providing material support for terrorism.--
``(A) Offense.--Any person subject to this chapter who
provides material support or resources, knowing or intending
that they are to be used in preparation for, or in carrying
out, an act of terrorism (as set forth in paragraph (24)), or
who intentionally provides material support or resources to
an international terrorist organization engaged in
hostilities against the United States, knowing that such
organization has engaged or engages in terrorism (as so set
forth), shall be punished as a military commission under this
chapter may direct.
``(B) Material support or resources defined.--In this
paragraph, the term `material support or resources' has the
meaning given that term in section 2339A(b) of title 18.
``(26) Wrongfully aiding the enemy.--Any person subject to
this chapter who, in breach of an allegiance or duty to the
United States, knowingly and intentionally aids an enemy of
the United States, or one of the co-belligerents of the
enemy, shall be punished as a military commission under this
chapter may direct.
``(27) Spying.--Any person subject to this chapter who with
intent or reason to believe that it is to be used to the
injury of the United States or to the advantage of a foreign
power, collects or attempts to collect information by
clandestine means or while acting under false pretenses, for
the purpose of conveying such information to an enemy of the
United States, or one of the co-belligerents of the enemy,
shall be punished by death or such other punishment as a
military commission under this chapter may direct.
``(28) Conspiracy.--Any person subject to this chapter who
conspires to commit one or more substantive offenses triable
by military commission under this chapter, and who knowingly
does any overt act to effect the object of the conspiracy,
shall be punished, if death results to one or more of the
victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death does
not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``Sec. 950w. Perjury and obstruction of justice; contempt
``(a) Perjury and Obstruction of Justice.--A military
commission under this chapter may try offenses and impose
such punishment as the military commission may direct for
perjury, false testimony, or obstruction of justice related
to military commissions under this chapter.
``(b) 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:
``47A. Military Commissions.....................................948a''.
(b) 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. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE.
(a) Conforming Amendments.--Chapter 47 of title 10, United
States Code (the Uniform Code of Military Justice), is
amended as follows:
(1) Applicability to lawful enemy combatants.--Section
802(a) (article 2(a)) is amended by adding at the end the
following new paragraph:
``(13) Lawful enemy combatants (as that term is defined in
section 948a(2) of this title) who violate the law of war.''.
(2) Exclusion of applicability to chapter 47a
commissions.--Sections 821, 828, 848, 850(a), 904, and 906
(articles 21, 28, 48, 50(a), 104, and 106) are amended by
adding at the
[[Page H7935]]
end the following new sentence: ``This section does not apply
to a military commission established under chapter 47A of
this title.''.
(3) Inapplicability of requirements relating to
regulations.--Section 836 (article 36) is amended--
(A) in subsection (a), by inserting ``, except as provided
in chapter 47A of this title,'' after ``but which may not'';
and
(B) in subsection (b), by inserting before the period at
the end ``, except insofar as applicable to military
commissions established under chapter 47A of this title''.
(b) Punitive Article of Conspiracy.--Section 881 of title
10, United States Code (article 81 of the Uniform Code of
Military Justice), is amended--
(1) by inserting ``(a)'' before ``Any person''; and
(2) by adding at the end the following new subsection:
``(b) Any person subject to this chapter who conspires with
any other person to commit an offense under the law of war,
and who knowingly does an overt act to effect the object of
the conspiracy, shall be punished, if death results to one or
more of the victims, by death or such other punishment as a
court-martial or military commission may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a court-martial or military
commission may direct.''.
SEC. 5. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR
CERTAIN CLAIMS.
(a) In General.--No person may invoke the Geneva
Conventions or any protocols thereto in any habeas corpus or
other civil action or proceeding to which the United States,
or a current or former officer, employee, member of the Armed
Forces, or other agent of the United States is a party as a
source of rights in any court of the United States or its
States or territories.
(b) Geneva Conventions Defined.--In this section, the term
``Geneva Conventions'' means--
(1) the Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, done at
Geneva August 12, 1949 (6 UST 3114);
(2) the Convention for the Amelioration of the Condition of
the Wounded, Sick, and Shipwrecked Members of the Armed
Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
(3) the Convention Relative to the Treatment of Prisoners
of War, done at Geneva August 12, 1949 (6 UST 3316); and
(4) the Convention Relative to the Protection of Civilian
Persons in Time of War, done at Geneva August 12, 1949 (6 UST
3516).
SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS.
(a) Implementation of Treaty Obligations.--
(1) In general.--The acts enumerated in subsection (d) of
section 2441 of title 18, United States Code, as added by
subsection (b) of this section, and in subsection (c) of this
section, constitute violations of common Article 3 of the
Geneva Conventions prohibited by United States law.
(2) Prohibition on grave breaches.--The provisions of
section 2441 of title 18, United States Code, as amended by
this section, fully satisfy the obligation under Article 129
of the Third Geneva Convention for the United States to
provide effective penal sanctions for grave breaches which
are encompassed in common Article 3 in the context of an
armed conflict not of an international character. No foreign
or international source of law shall supply a basis for a
rule of decision in the courts of the United States in
interpreting the prohibitions enumerated in subsection (d) of
such section 2441.
(3) Interpretation by the president.--
(A) As provided by the Constitution and by this section,
the President has the authority for the United States to
interpret the meaning and application of the Geneva
Conventions and to promulgate higher standards and
administrative regulations for violations of treaty
obligations which are not grave breaches of the Geneva
Conventions.
(B) The President shall issue interpretations described by
subparagraph (A) by Executive Order published in the Federal
Register.
(C) Any Executive Order published under this paragraph
shall be authoritative (except as to grave breaches of common
Article 3) as a matter of United States law, in the same
manner as other administrative regulations.
(D) Nothing in this section shall be construed to affect
the constitutional functions and responsibilities of Congress
and the judicial branch of the United States.
(4) Definitions.--In this subsection:
(A) Geneva conventions.--The term ``Geneva Conventions''
means--
(i) the Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, done at
Geneva August 12, 1949 (6 UST 3217);
(ii) the Convention for the Amelioration of the Condition
of the Wounded, Sick, and Shipwrecked Members of the Armed
Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
(iii) the Convention Relative to the Treatment of Prisoners
of War, done at Geneva August 12, 1949 (6 UST 3316); and
(iv) the Convention Relative to the Protection of Civilian
Persons in Time of War, done at Geneva August 12, 1949 (6 UST
3516).
(B) Third geneva convention.--The term ``Third Geneva
Convention'' means the international convention referred to
in subparagraph (A)(iii).
(b) Revision to War Crimes Offense Under Federal Criminal
Code.--
(1) In general.--Section 2441 of title 18, United States
Code, is amended--
(A) in subsection (c), by striking paragraph (3) and
inserting the following new paragraph (3):
``(3) which constitutes a grave breach of common Article 3
(as defined in subsection (d)) when committed in the context
of and in association with an armed conflict not of an
international character; or''; and
(B) by adding at the end the following new subsection:
``(d) Common Article 3 Violations.--
``(1) Prohibited conduct.--In subsection (c)(3), the term
`grave breach of common Article 3' means any conduct (such
conduct constituting a grave breach of common Article 3 of
the international conventions done at Geneva August 12,
1949), as follows:
``(A) Torture.--The act of a person who commits, or
conspires or attempts to commit, an act specifically intended
to inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions) upon
another person within his custody or physical control for the
purpose of obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination
of any kind.
``(B) Cruel or inhuman treatment.--The act of a person who
commits, or conspires or attempts to commit, an act intended
to inflict severe or serious physical or mental pain or
suffering (other than pain or suffering incidental to lawful
sanctions), including serious physical abuse, upon another
within his custody or 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 without a legitimate medical or dental
purpose 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 subsection, one or more persons
taking no active part in the hostilities, including those
placed out of 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 subsection,
one or more persons taking no active part in the hostilities,
including those placed out of 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 serious bodily injury.--The act
of a person who intentionally causes, or conspires or
attempts to cause, serious bodily injury to one or more
persons, including lawful combatants, in violation of the law
of war.
``(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 with one
or more persons, or causes, or conspires or attempts to
cause, one or more persons to engage in sexual contact.
``(I) Taking hostages.--The act of a person 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.
``(2) Definitions.--In the case of an offense under
subsection (a) by reason of subsection (c)(3)--
``(A) the term `severe mental pain or suffering' shall be
applied for purposes of paragraphs (1)(A) and (1)(B) in
accordance with the meaning given that term in section
2340(2) of this title;
``(B) the term `serious bodily injury' shall be applied for
purposes of paragraph (1)(F) in accordance with the meaning
given that term in section 113(b)(2) of this title;
``(C) the term `sexual contact' shall be applied for
purposes of paragraph (1)(G) in accordance with the meaning
given that term in section 2246(3) of this title;
``(D) the term `serious physical pain or suffering' shall
be applied for purposes of paragraph (1)(B) as meaning bodily
injury that involves--
``(i) a substantial risk of death;
``(ii) extreme physical pain;
``(iii) a burn or physical disfigurement of a serious
nature (other than cuts, abrasions, or bruises); or
``(iv) significant loss or impairment of the function of a
bodily member, organ, or mental faculty; and
[[Page H7936]]
``(E) the term `serious mental pain or suffering' shall be
applied for purposes of paragraph (1)(B) in accordance with
the meaning given the term `severe mental pain or suffering'
(as defined in section 2340(2) of this title), except that--
``(i) the term `serious' shall replace the term `severe'
where it appears; and
``(ii) as to conduct occurring after the date of the
enactment of the Military Commissions Act of 2006, the term
`serious and non-transitory mental harm (which need not be
prolonged)' shall replace the term `prolonged mental harm'
where it appears.
``(3) Inapplicability of certain provisions with respect to
collateral damage or incident of lawful attack.--The intent
specified for the conduct stated in subparagraphs (D), (E),
and (F) or paragraph (1) precludes the applicability of those
subparagraphs to an offense under subsection (a) by reasons
of subsection (c)(3) with respect to--
``(A) collateral damage; or
``(B) death, damage, or injury incident to a lawful attack.
``(4) Inapplicability of taking hostages to prisoner
exchange.--Paragraph (1)(I) does not apply to an offense
under subsection (a) by reason of subsection (c)(3) in the
case of a prisoner exchange during wartime.
``(5) Definition of grave breaches.--The definitions in
this subsection are intended only to define the grave
breaches of common Article 3 and not the full scope of United
States obligations under that Article.''.
(2) Retroactive applicability.--The amendments made by this
subsection, except as specified in subsection (d)(2)(E) of
section 2441 of title 18, United States Code, 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(e)(7) of Public Law 107-273).
(c) Additional Prohibition on Cruel, Inhuman, or Degrading
Treatment or Punishment.--
(1) In general.--No individual in the custody or under the
physical control of the United States Government, regardless
of nationality or physical location, shall be subject to
cruel, inhuman, or degrading treatment or punishment.
(2) Cruel, inhuman, or degrading treatment or punishment
defined.--In this subsection, the term ``cruel, inhuman, or
degrading treatment or punishment'' means cruel, unusual, and
inhumane treatment or punishment prohibited by the Fifth,
Eighth, and Fourteenth Amendments to the Constitution of the
United States, as defined in the United States Reservations,
Declarations and Understandings to the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman
or Degrading Treatment or Punishment done at New York,
December 10, 1984.
(3) Compliance.--The President shall take action to ensure
compliance with this subsection, including through the
establishment of administrative rules and procedures.
SEC. 7. HABEAS CORPUS MATTERS.
(a) In General.--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 added by section 1405(e)(1) of
Public Law 109-163 (119 Stat. 3477) and inserting the
following new subsection (e):
``(e)(1) No court, justice, or judge shall have
jurisdiction to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien detained by
the United States who has been determined by the United
States to have been properly detained as an enemy combatant
or is awaiting such determination.
``(2) Except as provided in paragraphs (2) and (3) of
section 1005(e) of the Detainee Treatment Act of 2005 (10
U.S.C. 801 note), no court, justice, or judge shall have
jurisdiction to hear or consider any other action against the
United States or its agents relating to any aspect of the
detention, transfer, treatment, trial, or conditions of
confinement of an alien who is or was detained by the United
States and has been determined by the United States to have
been properly detained as an enemy combatant or is awaiting
such determination.''.
(b) Effective Date.--The amendment made by subsection (a)
shall take effect on the date of the enactment of this Act,
and shall apply to all cases, without exception, pending on
or after the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment, trial,
or conditions of detention of an alien detained by the United
States since September 11, 2001.
SEC. 8. 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. 9. REVIEW OF JUDGMENTS OF MILITARY COMMISSIONS.
Section 1005(e)(3) of the Detainee Treatment Act of 2005
(title X of Public Law 109-148; 119 Stat. 2740; 10 U.S.C. 801
note) is amended--
(1) in subparagraph (A), by striking ``pursuant to Military
Commission Order No. 1. dated August 31, 2005 (or any
successor military order)'' and inserting ``by a military
commission under chapter 47A of title 10, United States
Code'';
(2) by striking subparagraph (B) and inserting the
following new subparagraph (B):
``(B) Grant of review.--Review under this paragraph shall
be as of right.'';
(3) in subparagraph (C)--
(A) in clause (i)--
(i) by striking ``pursuant to the military order'' and
inserting ``by a military commission''; and
(ii) by striking ``at Guantanamo Bay, Cuba''; and
(B) in clause (ii), by striking ``pursuant to such military
order'' and inserting ``by the military commission''; and
(4) in subparagraph (D)(i), by striking ``specified in the
military order'' and inserting ``specified for a military
commission''.
SEC. 10. DETENTION COVERED BY REVIEW OF DECISIONS OF
COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY
OF DETENTION.
Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of
2005 (title X of Public Law 109-148; 119 Stat. 2742; 10
U.S.C. 801 note) is amended by striking ``the Department of
Defense at Guantanamo Bay, Cuba'' and inserting ``the United
States''.
The SPEAKER pro tempore. Pursuant to House Resolution 1054, debate
shall not exceed 1 hour, with 40 minutes equally divided and controlled
by the chairman and ranking minority member of the Committee on Armed
Services and 20 minutes equally divided and controlled by the chairman
and ranking minority member of the Committee on the Judiciary.
The gentleman from California (Mr. Hunter) and the gentleman from
Missouri (Mr. Skelton) each will control 20 minutes and the gentleman
from Wisconsin (Mr. Sensenbrenner) and the gentleman from Michigan (Mr.
Conyers) each will control 10 minutes.
The Chair recognizes the gentleman from California.
{time} 1200
General Leave
Mr. HUNTER. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks on
S. 3930.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
Mr. HUNTER. Mr. Speaker, I yield myself such time as I may consume,
and I rise in support of S. 3930, the Military Commissions Act of 2006.
Mr. Speaker, as we debated this bill just a few hours ago, again, I
say that I can't think of any better way to honor the fifth anniversary
of September 11 than by establishing a system to prosecute the
terrorists who on that day murdered thousands of civilians and who
continue to seek to kill Americans both on and off the battlefield.
Mr. Speaker, I think that Justice Thomas described best the backdrop
against which this legislation is being considered when he said, and I
quote, ``We are not engaged in a traditional battle with a nation state
but with a worldwide hydra-headed enemy who lurks in the shadows
conspiring to reproduce the atrocities of September 11, 2001, and who
has boasted of sending suicide bombers into civilian gatherings, has
proudly distributed videotapes of beheadings of civilian workers, and
has tortured and dismembered captured American soldiers.''
So, Mr. Speaker, we have debated this precisely, this bill, which is
precisely the same coming back over from the other body as the bill
that we voted on in the full House, where I think we had a robust
debate on the issues. But I would just say that this gives us a new
body of law that provides a construct under which we can carry out our
charge.
And this is an interesting charge to this body and to both Houses of
Congress. We were not only requested to do this by the President, but
the Supreme Court in the Hamdan case essentially invited, in fact said
that we were an essential part of the construct of any tribunal
legislation that would set up the new tribunal process; that it had to
be a construct that was participated in by
[[Page H7937]]
Congress. So you could say, I think, Mr. Speaker, that we have been
charged not just by the President but by the Supreme Court with doing
our job and putting together this process.
We have pursued the terrorists across the globe. We have captured
some, and we have killed many. We have pursued them literally to the
ends of the earth. We have caught them at 10,000 foot elevation
mountain ranges in caves where they thought they were safe, in so-
called safe houses that turned out not to be safe houses. We captured
some who, according to our intelligence personnel, helped to design the
attack against New York and Washington, DC, and Pennsylvania. And I can
think of no more important way to memorialize 9/11 than to produce a
justice system that allows us to bring to justice, to bring to the
courthouse and show justice to the widows and orphans of 9/11, to the
American people, to our fellow citizens and to the world. This system
is going to allow us to do this.
This system is a product of extensive negotiations, hundreds of
provisions that have been agreed upon and worked and looked at by
counsel for both this body, the other body, the U.S. Senate and, of
course, the administration. I think it is sound. I think it is solid. I
think it will allow for the expeditious prosecution of people who
attacked our country.
It gives them a lot of rights. It gives a lot of rights to the
terrorists that they would never have in their native land. It also
gives them rights that American soldiers don't have. There is no
American soldier that has the right to an attorney, to a combatant
status review and, if he doesn't like that review, to an appellate
court, like the D.C. Circuit Court, to prove that he really was not a
combatant in that particular conflict.
So as the American people watch these trials unfold, Mr. Speaker, and
they watch the defendants, including some of the people who hurt our
country and helped to cause the death of thousands of Americans, they
are going to watch them with their taxpayer-paid-for attorneys
exercising their rights against self-incrimination, their right to a
proof standard beyond a reasonable doubt; they are going to watch a
jury system or a commission system that uses a secret ballot so that
superior officers can't influence junior officers; they are going to
watch all these safeguards that we put in place for justice, and I
think the American people are going to say, although there will be some
who will say they still didn't have enough rights, but I think the
American people will come down on the side of what we have done here in
the House.
Mr. Speaker, I rise in support of S. 3930, the ``Military Commissions
Act of 2006.'' I can think of no better way to honor the fifth
anniversary of September 11th than by establishing a system to
prosecute the terrorists who, on that day, murdered thousands of
innocent civilians, and who continue to seek to kill Americans both on
and off the battlefield.
This is vital legislation important to the national security of the
United States.
Our foremost consideration in writing this legislation is to protect
American troops and American citizens from harm.
The war against terror has produced a new type of battlefield and a
new type of enemy. How is it different? We are fighting a ruthless
enemy who does not wear a uniform. A savage enemy who kills civilians,
women and children and then boasts about it. A barbaric enemy who
beheads innocent civilians by sawing their heads off. An uncivilized
enemy who does not acknowledge or respect the laws of war, the Geneva
Conventions or any of the guarantees which are recognized by civilized
nations.
Justice Thomas put it best in Hamdan. He said we are ``not engaged in
a traditional battle with a nation-state, but with a world-wide, hydra-
headed enemy, who lurks in the shadows conspiring to reproduce the
atrocities of September 11, 2001, and who has boasted of sending
suicide bombers into civilian gatherings, has proudly distributed
videotapes of beheadings of civilian workers, and has tortured and
dismembered captured American soldiers.''
How is the battlefield new? First, it will be a long war. We don't
know if this enemy will be defeated this decade, the next decade, or
even longer than that. Second, in this new war, where intelligence is
more vital than ever, we want to interrogate the enemy. Not to degrade
them, but to save the lives of American troops, American civilians, and
our allies. But it is not practical on the battlefield to read the
enemy their Miranda warnings. On the battlefield we can't have
battalions of lawyers. Finally, this is an ongoing conflict and sharing
sensitive intelligence sources, methods and other classified
information with terrorist detainees could be highly dangerous to
national security. I am not prepared to take that risk.
So what we have done is to develop a military commission process that
will allow for the effective prosecution of enemy combatants during
this ongoing conflict. Without this action, United States has no
effective means to try and punish the perpetrators of September 11th,
the attack on the USS Cole and the embassy bombings.
We provide basic fairness in our prosecutions, but we also preserve
the ability of our warfighters to operate effectively on the
battlefield.
I think a fair process has two guiding principles:
First, the government must be able to present its case fully and
without compromising its intelligence sources or compromising military
necessity; and
Second, the prosecutorial process must be done fairly, swiftly and
conclusively.
Who are we dealing with in military commissions? We are dealing with
the enemy in war, not defendants in our domestic criminal justice
system. Some of them have returned to the battlefield after we let them
out of Guantanamo. Our primary purpose is to keep them off the
battlefield. In doing so, we treat them humanely and if we choose to
try them as war criminals we will give them due process rights that the
world will respect. But we have to remember they are the enemy in an
ongoing war.
In time of war it is not practical to apply to rules of evidence that
we do in civilian trials or court-martials for our troops. Commanders
and witnesses can't be called from the frontline to testify in a
military commission. We need to accommodate rules of evidence, chain of
custody and authentication to fit the exigencies of the battlefield. If
hearsay is reliable we should use it. If sworn affidavits are reliable,
we should use them. I note that the rules of evidence are relaxed in
international war crime tribunals for Rwanda and Yugoslavia.
The Supreme Court has suggested that Congress act here to fill the
legal void left by the Hamdan decision, but in doing so let's not
forget our purpose is to defend the nation against the enemy. We won't
lower our standards, we will always treat detainees humanely, but we
can't be naive either.
This war started in 1996 with the al Qaeda declaration of jihad
against the United States. The Geneva Conventions were written in 1949
and the UCMJ was adopted in 1951. These documents were not written to
address the war we are now fighting. In that sense, what we are
required to do after Hamdan is broader than war crimes trials, it is
the start of a new legal analysis for the long war. It is time for us
to think about war crime trials and a process that provides due process
and protects national security in the new war.
So what do we do with these new military commissions? We uphold basic
human rights and state what our compliance with this standard means for
the treatment of detainees. We do this in a way that is fair and the
world will acknowledge as fair.
First, we provide accused war criminals at least 26 rights if they
are tried by a commission for a war crime. While I will not read them
all, here are some of the essential rights we provide.
Right to Counsel, provided by government at trial and throughout
appellate proceedings;
Impartial judge;
Presumption of innocence;
Standard of proof beyond a reasonable doubt;
The right to be informed of the charges against him as soon as
practicable;
The right to service of charges sufficiently in advance of trial to
prepare a defense;
Mr. Speaker, since I am inserting my entire text in the Record, I
will not read them all at this point.
The right to reasonable continuances;
Right to peremptory challenge against members of the commission and
challenges for cause against members of the commission and the military
judge;
Witness must testify under oath; judges, counsel and members of
military commission must take oath;
Right to enter a plea of not guilty;
The right to obtain witnesses and other evidence;
The right to exculpatory evidence as soon a practicable;
The right to be present at court with the exception of certain
classified evidence involving national security, preservation of safety
or preventing disruption of proceedings;
The right to a public trial except for national security issues or
physical safety issues;
The right to have any findings or sentences announced as soon as
detennined;
Right against compulsory self-incrimination;
Right against double jeopardy;
The defense of lack of mental responsibility;
Voting by members of the military commission by secret written
ballot;
[[Page H7938]]
Prohibitions against unlawful command influence toward members of the
commission, counselor military judges;
\2/3\ vote of members required for conviction; \3/4\ vote required
for sentences of life or over ten years; unanimous verdict required for
death penalty;
Verbatim authenticated record of trial;
Cruel or unusual punishments prohibited;
Treatment and discipline during confinement the same as afford to
prisoners in U.S. domestic courts;
Right to review of full factual record by convening authority; and
Right to at least two appeals including to a federal Article III
appellate court.
We provide all of these rights, and we give them an independent
judge, and the right to at least two appeals, including the U.S. Court
of Appeals for the District of Columbia and access to the Supreme
Court. No one can say this is not a fair system.
I know some of my colleagues are concerned about the issue of
reciprocity. I ask them to look at the list of rights I just
summarized. And also keep in mind, that these are rights for
terrorists. If we are talking about true reciprocity, then we are only
concerned about how the enemy will treat American terrorists. These are
not our rules for POWs. We treat the legitimate enemy differently and
expect them to treat our troops the same.
How do we try the enemy for war crimes? In this Act, Congress
authorizes the establishment of military commissions for alien unlawful
enemy combatants, which is the legal term we use to define
international terrorists and those who aid and support them, in a new
separate chapter of Title 10 of the U.S.C. Code, Chapter 47A. While
this new chapter is based upon the Uniform Code of Military Justice, it
creates an entirely new structure for these trials.
In this bill we provide standards for the admission of evidence,
including hearsay evidence and other statements, that are adapted to
military exigencies and provide the military judge the necessary
discretion to determine if the evidence is reliable and probative.
I want to talk a little bit about how we handle classified evidence.
We had three hearings on this bill in addition to briefings and
meetings with experts. I asked every witness the same question. If we
have an informant, either a CIA agent or an undercover witness of some
sort, are we going to tell Kalid Sheik Mohammad who the informant is?
This legislation does not allow KSM to learn the identity of the
informant. After several twists and turns in the road, after meeting
with the Senate and the White House in marathon sessions over the
weekend, we have crafted a solution that does not allow the KSM to
learn the identify of the informant, yet provides a fair trial. How do
we do this? We address this in Section 949d(f) of Section 3. Classified
evidence is protected and is privileged from disclosure to the jury and
the accused if disclosure would be detrimental to national security.
The accused is permitted to be present at all phases of the trial and
no evidence is presented to the jury that is not also provided to the
accused.
Section 949d(f) makes a clear statement that sources, methods, or
activities will be protected and privileged and not shown to the
accused, however, the substantive findings of the sources, methods, or
activities will be admissible in an unclassified form. This allows the
prosecution to present its best case while protecting classified
information. In order to do this, the military judge questions the
informant outside the presence of the jury and the defendant. In order
to give the jury and the defendant a redacted version or the
infornant's statement, the just must find: (1) that the sources,
methods, or activities by which the U.S. acquired the evidence are
classified and (2) the evidence is reliable. Once the judge stamps the
informant as reliable, the informant's redacted statement is given to
both the jury and the accused. It removes the confrontation issue, yet
allows the accused to see the substance of the evidence against him. I
think these rules protect classified evidence and yet preserve a fair
trial.
Unauthorized disclosures, not only of classified information, but
also of our interrogation techniques, are extremely damaging to our
intelligence efforts. Our personnel have encountered enemy combatants
trained to resist disclosed interrogation techniques thanks to leakers
in our media. I'm pleased that with the current Military Commission
legislation moving forward, we have reaffirmed our strict adherence to
the U.S. anti-torture laws, while at the same time allowing our CIA to
move forward with an effective interrogation program whose techniques
will not be published in the Federal Register, or God forbid, in
another newspaper disclosure. This legislation preserves the necessary
flexibility for the President and the CIA to utilize all lawful and
effective methods of interrogation. Let me be clear: the bill defines
the specific conduct that is prohibited under Common Article 3, but it
does not purport to identify interrogation practices to the enemy or to
take any particular means of interrogation off the table. Rather, this
legislation properly leaves the decision as to the methods of
interrogation to the President and to the intelligence professionals at
the CIA, so that they may carry forward this vital program that, as the
President explained, serves to gather the critical intelligence
necessary to protect the country from another catastrophic terrorist
attack.
One other point I want to make for the record. As I mentioned
earlier, we have modified the rules of evidence to adapt to the
battlefield. One of the principles used by the judiciary in criminal
prosecutions of our citizens is called the ``fruit of the poisonous
tree doctrine.'' The rule provides that evidence derived from
information acquired by police officials or the government through
unlawful means is not admissible in a criminal prosecution. I want to
make it clear that it is our intent with the legislation not to have
this doctrine apply to evidence in military commissions. While evidence
obtained improperly will not be used directly against an accused, we
will not limit the use of any evidence derived from such evidence. The
deterrent effect of the exclusionary rule is not something that our
soldiers consider when they are fighting a war. The theory of the
exclusionary rule is that if the constable blunders, the accused will
not suffer. However, we are not going to say that if the soldier
blunders, we are not going to punish a savage terrorist. Some rights
are reserved for our citizens. Some rights are reserved for civilized
people.
Mr. Speaker, this is a complicated piece of legislation. In addition
to establishing an entire legal process from start to finish, we
address the application of common Article 3 of the Geneva conventions
to our current laws.
Section 5 clarifies that the Geneva Conventions are not an
enforceable source of rights in any habeas corpus or other civil action
or proceeding by an individual in U.S. courts.
Section 6 of the bill amends 18 U.S.C. Section 2441, the War Crimes
Act to criminalize grave breaches of common Article 3 of the Geneva
Conventions. As amended, the War Crimes Act will fully satisfy our
treaty obligations under common Article 3. This amendment is necessary
because currently Section (c)(3) of the War Crimes Act defines a war
crime as any conduct which constitutes a violation of Common Article 3.
Common Article 3 prohibits some actions that are universally condemned,
such as murder and torture but also prohibits ``outrages upon personal
dignity'' and ``humiliating and degrading treatment,'' phrases which
are vague and do not provide adequate guidance to our personnel. Since
violation of Common Article 3 is a felony under the War Crimes Act, it
is necessary to amend it to provide clarity and certainty to the
interpretation of this statute. The surest way to achieve that clarity
and certainty is to define a list of specific offenses that constitute
war crimes punishable as grave violations of Common Article 3. This is
something we need now, because of the Hamdan decision.
Section 6 of the bill also provides that any detainee under the
custody or physical control of the United States will not be subject to
``cruel, inhuman or degrading treatment or punishment'' prohibited by
the Fifth, Eighth and Fourteenth Amendments to the Constitution, as
defined by the U.S. reservations to the UN Convention against Torture.
This defines our obligations under Common Article 3 by reference to the
U.S. constitutional standard adopted by the Detainee Treatment Act of
2005.
Section 7 of the bill addresses the question of judicial review of
claims by detainees by amending 28 U.S.C. Section 2241 to clarify the
intent of the Detainee Treatment Act of 2005 to limit the right of
detainees to challenge their detention. The practical effect of
this amendment will be to eliminate the hundreds of detainee lawsuits
that are pending in courts throughout the country and to consolidate
all detainee treatment cases in the D.C. Circuit. However, I want to
stress that under this provision detainees will retain their
opportunity to file legitimate challenges to their status and to
challenge convictions by military commissions. Every detainee under
confinement in Guantanmo Bay will have their detention reviewed by the
U.S. Court of Appeals for the District of Columbia.
Mr. Sensenbrenner and my other colleagues are going to speak on the
rest of the bill, but before I finish I want to make one point very
clear. This legislation does not condone or authorize torture in any
way. In fact, we make it a war crime, punishable by death, for one of
our soldiers or interrogators to torture someone to death. Let me
emphasize this again. In Section 6 of this bill, we amend 18 U.S.C.
2441, the War Crimes Act. In this amendment we explicitly provide that
torture inflicted upon a person in custody for the purpose of obtaining
information is a war crime for which we may prosecute one of our own
citizens. While most of this legislation deals with how we handle the
enemy, I want to make it crystal clear that nothing in what we are
doing condones or allows torture in any way.
[[Page H7939]]
There is more to this bill than military commissions, however. H.R.
6166 addresses an issue that Supreme Court created in the Hamdan case.
The Court in Hamdan decided that Common Article 3 of the Geneva
Conventions--a article that many assumed only applied to regular
armies--applies to terrorist organizations, like al Qaeda. As a result
of this decision, our brave personnel in the military and other
national security agencies are faced with an unpredictable legal
landscape because the meaning of certain elements of Common Article 3
are vague.
For example, would a female interrogator of a male Muslim detainee be
guilty of violating Common Article 3 because the mere scenario
constitutes an outrage upon personal dignity? Such a situation is
untenable. It is unfair to our personnel out in the field trying to
protect lives here at home. It is Congress' responsibility to draw the
lines of what conduct will be criminal.
As a result, we need to amend the War Crimes Act to make clear that
only grave breaches of Common Article 3 constitutes a war crime under
U.S. law. Let me be clear, under international law a party to the
treaty is responsible for incorporating only grave breaches of Common
Article 3 in its penal code. My point is simple: Today the Congress is
complying with our treaty obligations under Geneva Conventions and
today the Congress is following the guidance of the Supreme Court in
Hamdan (even though many believe that the Court's decision was ill
construed).
Now, some have suggested that H.R. 6166 condones torture or that this
bill implicitly permits ``enhanced torture techniques''. These
suggestions are absolutely false and they fly in the face of the very
words that appear on the pages of this bill.
First--it is illegal under U.S. law to torture. This was true before
H.R. 6166 and it will remain true. Moreover, H.R. 6166 makes torture a
war crime that can result in the death penalty. This means that under
the War Crimes Act, any U.S. personnel that engages in Torture will be
subject to prosecution for committing a war crime. Additionally, in the
context of military commissions, a statement obtained through torture
is not admissible.
Second--this bill makes clear that the way we treat our detainees is
guided by treatment standards set by the Congress--last year--in the
Detainee Treatment Act, also known as the McCain amendment. This
standard is based upon the familiar standards of the U.S. Constitution.
Thus, ``cruel, inhuman, and degrading treatment or punishment'' under
this section means the cruel, unusual, inhumane treatment or punishment
prohibited by the Fifth, Eighth, and Fourteenth Amendments to the
Constitution, as defined by the U.S. reservations to the UN Convention
Against Torture.
I believe that the Constitution, which provides the fundamental,
underlying protections for the citizens of the United States, provides
more than sufficient protections for unlawful enemy combatants. Why
should accused terrorist enjoy protections that exceed what the
Constitution provides to United States citizens?
Mr. Speaker, in summary, I believe that this legislation is the best
way to prosecute enemy terrorists and to protect U.S. Government
personnel and service members who are fighting them.
I urge my colleagues to support this vital legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. SKELTON. Mr. Speaker, I yield myself such time as I may consume.
The history of tribunals goes back to during and after the Second
World War: The German saboteurs who were captured at Ponte Verde,
Florida, and Long Island were tried before a tribunal; the Japanese
leaders who carried out such inhumane treatment toward the American
soldiers and prisoners of war, among them General Yamashita and General
Tojo; and, of course, the Nuremberg trials held in Nuremberg, Germany,
after the war of the Nazis who perpetrated those various crimes.
Now, here we are trying to establish a tribunal or a commission,
which we should do and need to do. The Supreme Court, as a result of
the Hamdan decision, said that we in Congress need to do it as opposed
to an Executive Order. But what we needed to do was to be tough on
terrorists. And being a former prosecuting attorney and knowing that
the specter that hangs over every prosecutor's head is that a hard-won
victory in court will be overturned by an appellate court or by a
Supreme Court, we should be tough on the terrorists; not just tough on
them with the law but tough on them with certainty, not giving the
opportunity through legislation for the overturning of a conviction.
Now, as you know, Mr. Speaker, there are two ways in which a
conviction may be overturned. Number one is on the evidence; a mistake
made by the judge or a comment made by the prosecutor. On the other
hand, someone may have their conviction overturned in the event that
the law upon which the conviction is based is unconstitutional. In my
debate and comments recently, I pointed out some seven areas of
constitutional uncertainty which may very well cause a reversal of a
conviction. Consequently, I think this bill before us, as I have said
before, is flawed and that will cause us not only to be not tough but
to be uncertain that these convictions will be upheld.
Mr. Speaker, I reserve the balance of my time.
Mr. HUNTER. Mr. Speaker, I will yield myself such time as I may
consume to say, first, that I appreciate the gentleman's participation
in the hearings and the briefings and the markup that we had on the
initial bill that came out of the Armed Services Committee 52-8, and I
would remind my colleagues that, in fact, the appellate route in this
particular bill provides for the court of military review, a new court
to be set up as a first appellate stop; and secondly, the D.C. Circuit
Court. And in channeling all of the actions to the D.C. Circuit Court,
we are going to a court that has lots of experience, is building a body
of experience in this type of work, and that will keep us from rifle-
shooting actions out throughout the country.
I think that makes for an efficient process, and it provides now two
appellate reviews, whereas the Democrat substitute had only one
appellate review before you would apply for final review by the Supreme
Court, which might or might not occur. So instead of one review, we
have two reviews. And I think that that is a strengthening, if you
will, of this bill that is one more measure to ensure that as we move
forward on this process of bringing to justice those who attacked our
country, we give them a robust right of appeal.
Having said that, Mr. Speaker, I yield 5 minutes to the gentleman
from Indiana (Mr. Buyer), who is the chairman of the Veterans' Affairs
Committee and a former JAG officer himself.
Mr. BUYER. Mr. Speaker, I thank the gentleman for yielding. I was a
good listener to my colleague, Mr. Skelton, and we have worked very
well over the years. Sometimes we disagree, but I think more times we
agree than disagree.
In review of the section, though, I would say to my good friend from
Missouri that, with regard to how individuals are tried, I have worked
with the administration and the Senate and with my good friend Lindsey
Graham. When you start this legislative process, Mr. Skelton, and you
start with five amendments and you end up with a colloquy, some good
things must have happened in the process. So I just want my good friend
from Missouri to know that a lot of the concerns I had have been worked
out with Mr. Hunter, with his cooperation, and with the Senate and with
the administration.
I know some of you have some concerns that didn't get worked out, and
I can understand that and I can relate to the gentleman, but with
regard to a process here, the Supreme Court struck down the tribunals,
said the Congress needs to act on this to come up with a process, and
when I examined this, we took some of the best, not only of our own
legal system, but we took some of the best out of the UCMJ, and we took
some of the best out of the world court to create the military
commissions.
So, now, when you look at title 18, the first chapter will be the
Federal criminal code that will apply to United States citizens. The
second chapter then is the UCMJ, and the third chapter will now be the
Code of Military Commissions. In my judgment, the Code of Military
Commissions is in fact a process that will reflect America's values,
and it will be balanced against the protection of our national
security, and it has indispensable judicial guarantees that are
recognized by the world.
The Supreme Court, yes, they will examine our commissions, no
differently than how they examine the tribunals, but I am left in an
area of good comfort, and that is my counsel that I now give to my
country, of 26 years' experience not only as a military JAG officer but
also the 14 years here helping lead our country. I am
[[Page H7940]]
comfortable with regard to this process, not only if I were the
military prosecutor but even if I were the military defense counsel,
about the protections that we are affording not only this unlawful
enemy combatant but making sure that we have a balance of interests.
Yesterday, on the floor, a couple of our colleagues had raised some
issues as to whether American citizens could be subject to the Code of
Military Commissions and whether or not, if an American citizen was
even classified as an enemy combatant, could they then be subject to a
military tribunal. The answer is no. American citizens cannot. Mr.
Hunter has made it very clear in this language.
So even a strict constructionist, when they read this language in the
Supreme Court, it is very clear. Section 948 says this does not apply
to American citizens; that it only applies to aliens. But let's go with
an example: Let's say an American citizen has been arrested for aiding
and abetting a terrorist, maybe even participating in a conspiracy, or
maybe participating in an action that harmed or killed American
citizens.
{time} 1215
That American citizen cannot be tried in the military commission. His
coconspirators could be tried in a military commission if they were an
alien, but if that other coconspirator is an American citizen, they
will be prosecuted under title 18 of the first chapter of a Federal
crime, or even we could assimilate the State laws under the Assimilated
Crimes Act.
I am trying to go into details, and I want to share with the American
people here beyond the rhetoric that sometimes you hear on the floor,
that with regard to the process itself, I am very comfortable with the
fact that American citizens cannot be tried in this.
The reason I am spending a little time on it is that there was an
editorial that went out there by a law professor published in the Los
Angeles Times. Let me tell you, as a lawyer myself, just because a law
professor says it, I am going to tell you what: not necessarily true.
I read his editorial, and I also then looked at the law. Let me now
speak unto the law professor: read the bill. Just like what you would
do to your law students, you would tell them to read the bill. And when
you read the bill and when you open it up, you would find that the
words you wrote so that the readers in Southern California would
somehow take what, action, or give you credit or credence to your
words, your words are false. And that is completely unfortunate.
So hopefully people will begin to understand that this whole issue
about these military commissions applying to American people is not
true at all.
In the end, let me thank Mr. Hunter on a good work product. I do wish
that, in the end, that this really could have been a product, Mr.
Skelton, that the two of you could have brought together. I don't know
what happened there, because I have such respect for both of you.
Mr. SKELTON. Mr. Speaker, I yield 3 minutes to the gentleman from New
York (Mr. Nadler).
Mr. NADLER. Mr. Speaker, I am not going to get into any of the
torture aspects of this bill, but I do want to address the due process
aspects of this bill.
The distinguished chairman says we have created a system of justice
with plenty of rights. Well, we have created two systems of justice.
First of all, it doesn't have so many rights. You can appeal from the
military tribunal, but the military tribunal can hear hearsay evidence
and it can hear evidence obtained under coercion, if not torture. That
is debatable.
But the appeal is only on matters of law, not fact. So if it is
determined that it is you and not someone whose name is similar to you
who is the unlawful enemy combatant by the military tribunal, you can't
appeal that decision. You can only appeal the process of that decision.
The civilian courts have nothing to say on questions of fact. That is
number one.
Number two, much more important, the President under this bill has
the ability, or Federal bureaucrats, for that matter, to point their
finger at anybody in this country or abroad, as long as he is not a
citizen, and say you are an enemy combatant because I say so; and
because I say so, we are going to throw you in jail forever and you
have no right to have a military commission. We may put you before a
military commission, in which case what they were talking about
applies. We may put you before a combat status review tribunal, in
which case what they were talking about applies; but there is no right
to do that.
The bill specifically says that this whole process is exempt from the
speedy trial requirements of law. So you may be in jail forever because
your name was similar to the real guy.
The bill assumes that we need not have the normal protections that we
have had since the Magna Carta for people to at least say habeas
corpus; bring the body, sir King, before the magistrate to make sure
you have the right guy, to make sure there is some basis for holding
this person and depriving him of liberty.
There is no such right. This person can be in jail forever without
ever going to a military tribunal, without ever going to a combat
status review tribunal, without anything.
This, Mr. Speaker, is irrelevant and unconstitutional. This is un-
American. It is against all our traditions, to be able to say that
people have no rights. It specifically says you have no right to go to
any court, a military tribunal or a regular court, to protest that you
are being tortured or to allege that you are being tortured. You can't
get into court. If you are being tortured, too bad. No one knows about
it.
Secondly, you cannot go to court to say they got the wrong guy,
because cops never make mistakes, no one ever makes a mistake.
And, finally, the bill is also unconstitutional because it sets up
two systems of justice. If you pick up two people in New York, one of
them is a citizen, they go to the Federal court, and you accuse them of
being unlawful enemy combatants, they go to the regular American system
of justice. One is awaiting citizenship but is a permanent resident, he
goes through this other. He has no rights and can be in jail forever.
That is clearly unconstitutional. It is a denial of equal protection.
Mr. HUNTER. Mr. Speaker, I yield 1 minute to the gentleman from
Indiana (Mr. Buyer).
Mr. BUYER. Mr. Speaker, when the gentleman says the President can
make any determination he wanted with regard to status, I would just
like the gentleman to know that the determination of one's status is
done by a tribunal under article V of the Geneva Conventions.
Mr. NADLER. Mr. Speaker, will the gentleman yield?
Mr. BUYER. I yield to the gentleman from New York.
Mr. NADLER. It is supposed to be done by a tribunal under article V,
but the President claims the power. We have never held such a tribunal.
Mr. BUYER. Wait a minute. Reclaiming my time, please do not come to
the floor and make things up. As a JAG officer in the first Gulf War, I
wrote the practice and procedures for article V tribunals. I
participated in the tribunals to determine status, a person's status.
The President of the United States does not participate in that
process.
So, please, don't be silly and just make things up.
Mr. HUNTER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, let me just go to the Detainee Act. It says that review
is done by the District of Columbia relating to any aspect of the
detention of an alien, and we have expanded it from Guantanamo Bay to
anywhere, who has been determined by the United States District Court
of Appeals for the District of Columbia Circuit in accordance with the
procedures set forth in section 1405. So there is a process whereby the
review is made with respect to the status of that alien.
Let me go to a second point. The gentleman spoke about hearsay
evidence being allowed. That is true. Hearsay evidence is allowed, with
certain restrictions. The judge has to find that it is probative, that
it is relevant and that it is reliable.
The war crimes tribunals in Yugoslavia and Rwanda allow hearsay
evidence. As I recall, the bill that was offered by Mr. Skelton, that
was voted on in the HASC, in the Armed Services
[[Page H7941]]
Committee, also allowed for the use of hearsay evidence.
So hearsay evidence, I would say to my friends, is not excluded and
has not historically been excluded in war crimes trials in Rwanda, in
Yugoslavia.
Mr. SKELTON. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, first I would make reference to my friend from Indiana
(Mr. Buyer), and thank him for his comments. I am sorry that we don't
agree on the basis of this. But thank you for your comments a few
moments ago.
Mr. Speaker, I yield 3 minutes to the gentleman from Ohio (Mr.
Kucinich).
Mr. KUCINICH. Mr. Speaker, I thank the gentleman from Missouri for
his defense of basic constitutional principles. I would say that the
basic premise of military commissions, that the U.S. military should
try unlawful enemy combatants using draconian rules, that basic premise
is false.
The jury of commissioned military officers are not peers of these
detainees. The detainees are accused of crimes against humanity and
should be tried like all other such persons. The U.S. should hand over
these detainees to the International Criminal Court. The U.S. should
offer evidence that would be legal under our Constitution and the
Geneva Conventions. This model of justice would set a precedent for
other nations where the rule of law remains unfair, unjust, and
inhumane.
The wrong approach is to create a court system that has more in
common with the nations that torture, jail and hold indefinitely anyone
without legitimate evidence.
The second point: H.R. 6166 and S. 3930 cast a wide net in defining
unlawful enemy combatants that would include any American supporter of
a national liberation movement which is seeking to overthrow a U.S.
Government-supported despot.
For instance, with such a loose definition, the thousands of
Americans, many of whom are church clergy, who provided support to the
armed and unarmed opposition to the disposed dictatorships of El
Salvador and Nicaragua, could have been designated as unlawful enemy
combatants.
This hypothetical could occur since, one, it would only take a
determination by the President or Secretary of Defense that the
opposition to a U.S.-favored dictator was engaged in hostilities
against the U.S., and that, two, the act of solidarity by the American
clergymen supported the opposition group.
This is very dangerous. It is widely known that the U.S. conducted a
dirty war throughout Central and South America to uphold repressive
regimes there.
The third point I would like to make is that H.R. 6166 and S. 3930
could make similar solidarity actions in the future a crime. Those
crimes should not be triable by military commissions. They would be new
crimes and expose Americans to prosecution simply for supporting
unfortunate people in other countries who are struggling for their
freedom.
The other point is that H.R. 6166 and S. 3930 create a large loophole
to keep administration officials out of jail for violations of the War
Crimes Act of 1996. Section 4 amends the War Crimes Act to immunize
from prosecution civilians who subject people to horrific abuse that
may fall short of the definition of torture.
It is clear that senior administrative officials signed off on
aggressive and illegal techniques and are potentially liable under the
War Crimes Act of 1996. Instead, Congress is going to gut the War
Crimes Act to protect those who permitted torture of detainees.
If those who think the so-called war on terror is about ideas such as
good versus evil and democracy versus thuggery, then H.R. 6166 sends
the wrong message about the true values of Americans. Let's stand up
for the principles that this country was founded upon. Let's stand up
for the Constitution, for the land of the free, for the home of the
brave.
Mr. HUNTER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, let me just make a comment about the fact that we
enumerate the crimes that might be committed, what we call the grave
offenses under article III.
I think that it accrues to the benefit of our soldiers, sailors,
airmen and marines and our intelligence agents that they know what the
crimes are when they have people in custody, and the fact that those
grave crimes, and they are enumerated, are defined, gives clarity to
our folks so they know what the offenses are. I think that serves the
purpose. It does not disserve the purpose.
But the idea that we have also reserved to the President on nongrave
offenses, and again, one of the examples that was given by expert
testimony was if you use the term ``degrading,'' you could charge that
a female colonel JAG officer interrogating a Muslim male is in and of
itself degrading, because it is a female interrogating a male, and in
their culture that would be considered to be degrading.
I think it is important not to expose that female JAG officer to
liability. And it is important, therefore, when you have what you might
consider to be minor infractions to not label that person, that
American, a war criminal, but to allow the President as Commander in
Chief to put forth regulations.
So I think this is a good fit, and it gives the thing that is most
important to personnel, and that is clarity.
Mr. BUYER. Mr. Speaker, will the gentleman yield?
Mr. HUNTER. I yield to the gentleman from Indiana.
Mr. BUYER. What I would like to share with everyone, having done
interrogations, I have interrogated Iraqi high command when I was at
the Western Enemy Prisoner of War Camp. I assure you that trying to use
any type of method to torture or beat the person you are trying to
interrogate, I assure you, you never want to do that as an
interrogator, because whatever he is going to say is really not going
to be helpful to you. So as an interrogator, it is the last thing. It
wouldn't even enter your mind that you want to do this type of thing.
The only time, I won't say the only time, some of the most difficult
situations are usually what we find in the field where time is of the
essence, where someone has just been killed, you are in a battlefield
situation, you have gotten a prisoner and you need to know who they are
and where they just went. That is generally where bad things happen. It
is not at a garrison, in prison or a detention center.
Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the gentleman from
Oregon (Mr. Wu).
(Mr. WU asked and was given permission to revise and extend his
remarks.)
Mr. WU. Mr. Speaker, this is a sad day in the long history of this
Chamber and of this Congress because today we break faith with the
basic tenets of Anglo-American law that have come down from the Magna
Carta, through the attempts of Charles I to suspend the writ of habeas
corpus, to the challenges that American Presidents have faced in every
stressful conflict situation in this Nation's history.
{time} 1230
Although we should care about the rights of aliens seized in other
countries, we should care, what we are debating today are the rights of
American citizens here in the United States.
If my wife, a sixth generation Oregonian, were seized up and detained
under the law we are considering today, she would disappear into a
black hole of detention with no access to article 3 courts. At best,
she would get a military tribunal, and that is not what American
citizens deserve. The Koramatsu case from World War II is still the law
of the land. It has not been overturned. And what it stands for is the
proposition that civilians can be held by the military in this country.
The Koramatsu case has been called a gun pointed at the heart of our
civil liberties, and today this Congress loads that weapon.
This law is unwise as it is unconstitutional, and we should not be
enacting this in haste. The great writ is one of our great protections.
It applies to all Americans, and Americans should not be tried by a
military tribunal.
Mr. SKELTON. Mr. Speaker, I recognize the ranking member of the
Judiciary Committee (Mr. Conyers) for 1 minute.
Mr. CONYERS. I thank the gentleman for yielding. He has done great
legal work from the Armed Services Committee.
I just keep going through my mind, and this is getting to be a night
and
[[Page H7942]]
day job, because I have a Member I respect so much in judiciary, Mr.
Lungren, who keeps trying to tell us that there are two writs of habeas
corpus. A wonderful idea, if it were only true.
The statutory writ of habeas corpus, I say to my colleague from
California, is to implement the great writ in the Constitution. So to
be telling us repeatedly, repeatedly, and I have got the cases, I have
been waiting for this great moment in American judiciary history, that
there are two writs and that you have got to know which one you are
talking about is absolutely incorrect.
Mr. SKELTON. Mr. Speaker, I yield 4 minutes to the gentlewoman from
Texas, Sheila Jackson-Lee.
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Let me thank the distinguished ranking
member of the Armed Services for his very insightful, instructive
messages on the dilemma we face in Iraq and Afghanistan. Let me also
acknowledge that there are individuals who have had firsthand
experience in the military courts.
Having gone to a law school that had a very outstanding JAG school, I
understand the importance of military law and was one time a member of
the U.S. Military Court of Appeals.
But I think it is important that we make this argument
understandable, because in a few hours the President will give to my
friends on the other side of the aisle an opportunity of bragging
rights by having signed a bill that has been rushed through this
process and has totally ignored the Supreme Court's decision.
Why are we standing here on this side of the aisle seemingly making
arguments that don't promote security and safety in the United States?
Well, that interpretation is totally wrong, because not one of us wants
to take away the tools that would ensure America's security. But what
we are concerned about are the faces here who represent those who have
lost their lives on the front lines of Iraq and Afghanistan, and they
continue over and over again. We have concerns about the life they
sacrifice and the soldiers that they left behind. We know that soldiers
don't leave comrades on the battlefield, injured or lost in the line of
battle.
Today, this military tribunal commission will leave our soldiers on
the battlefield, for what it does is it creates the atmosphere, no
matter whether we are in a guerilla war or we are in the
confrontational wars that we know of World War I and II. It is to
ensure that the treatment of our soldiers, if caught by the enemy, will
reflect the lack of treatment that we have given here.
Mr. Skelton has made it very clear, we could fix this, because he
would have provided an expedited Constitution review of the entire
matter to give the opportunity for entry into the courts under habeas.
It would also require that these military commissions, because they are
eliminating rights, we are not saying releasing people, we are saying
eliminating rights, that then get translated to the miserable treatment
of those who were incarcerated or taken off the battlefield that are
our soldiers.
Secondly, it refuses to give reauthorization language to the military
commissions. We don't know where we will be in 3 years. We don't know
how negatively this will impact our soldiers on the battlefield, which
next conflict that, God forbid, we may have to be engaged in.
Also, the language that my friends have go beyond the scope of the
Supreme Court's decision in Hamdan to decide whether or not detainees
have habeas rights. The court already decided they do. Or whether or
not the habeas provisions in the Detainee Treatment Act are
constitutionally legal. The habeas provisions in the legislation are
contrary to congressional intent in the Detainee Treatment Act. In that
act, Congress did not intend to strip the courts of jurisdiction over
the pending habeas.
In addition, although my friends say they fixed it, they also deny
the rights which I had an amendment to to utilize the Geneva
Conventions language to say that you were tortured or not tortured,
even if you would put that defense in a classified presentation.
So in concluding, let me say we owe them a debt of gratitude. Let's
vote down this tribunal to save future lives.
I rise in strong opposition to S. 3930, the Military Commissions Act.
I oppose this bill because I stand strong for our troops. I stand
strong for the Constitution. I stand strong for the values that have
made our country, the United States of America, the greatest country in
the history of the world. I oppose this legislation because it is not
becoming a nation that is strong in its values, confident of its
future, and proud of its ancient heritage.
Mr. Speaker, let us be crystal clear: All Americans, and Democrats
especially, want those responsible for 9/11 and other terrorist acts to
be tried fairly and punished accordingly, and we want those convictions
to be upheld by our courts.
Democrats want the President to have the best possible intelligence
to prevent future terrorist attacks on the United States and its
allies.
Democrats agreed with the President when he said ``whether the
terrorists are brought to justice or justice brought to the terrorists,
justice will be done.'' But Democrats understand that justice requires
the Congress to establish a system for trying suspected terrorists that
not only is fundamentally fair but also consistent with the Geneva
Convention.
We should abide by the Geneva Convention not out of some slavish
devotion to international law or desire to coddle terrorists, but
because adherence to the Geneva Convention protects American troops and
affirms American values.
S. 3930, the compromise before us, includes some improvements that I
strongly support. For example, evidence obtained through torture can no
longer be used against the accused. Similarly, the compromise bill
provides that hearsay evidence can be challenged as unreliable.
Perhaps the most important improvement over the bill passed by the
House is that accused terrorists will have the right to rebut all
evidence offered by the prosecution. As is the case in the existing
military justice system, classified evidence can be summarized,
redacted, declassified, or otherwise made available to the accused
without compromising sources or methods. This change to the bill goes a
long way toward minimizing the chance that an accused may be convicted
with secret evidence, a shameful practice favored by dictators and
totalitarians but beneath the dignity of a great nation like the United
States. As Senator John McCain said:
I think it's important that we stand by 200 years of legal
precedents concerning classified information because the
defendant should have a right to know what evidence is being
used.
However, I am concerned that there is reason to believe that even
with this compromise legislation, this system of military commissions
may lead to endless litigation and get struck down by the courts. Then
we would find ourselves back here again next year, or five years from
now, trying to develop a system that can finally bring the likes of
Khalid Sheik Mohammed to justice. Why would we want to give terrorist
detainees a ``get out of jail free'' card when we can avoid that by
establishing military commissions that work. As currently written, the
compromise bill has provisions that could lead to the reversal of a
conviction.
Specifically, the bill contains a section that strips the federal
courts of jurisdiction over habeas corpus petitions filed prior to the
passage of the Detainee Treatment Act last December on behalf of
detainees at Guantanamo Bay. Mr. Speaker, nine former federal judges
were so alarmed by this prospect that they were compelled go public
with their concerns:
Congress would thus be skating on this constitutional ice
in depriving the federal courts of their power to hear the
cases of Guantanamo detainees. . . . If one goal of the
provision is to bring these cases to a speedy conclusion, we
can assure from our considerable experience that eliminating
habeas would be unconstitutional.
Mr. Speaker, common Article 3 of the Geneva Convention requires that
a military commission be a regularly constituted court affording all
the necessary ``judicial guarantees which are recognized as
indispensable by civilized peoples. Notwithstanding the provision in
the House bill that the military commissions established therein
satisfy this standard, the fact is that other nations will agree.
Simply saying so does not make it so. Moreover, they may well be right.
Consider this, Mr. Speaker:
The compromise allows statements to be entered into
evidence that were obtained through cruel, inhuman and
degrading treatment and lesser forms of coercion if the
statement was obtained before passage of the Detainee
Treatment Act last December.
To provide limited immunity to government agents involved
in the CIA detention and interrogation program, the bill
amends the War Crimes Act of 1996 to encompass only ``grave
breaches'' of the Geneva Conventions. U.S. agents could not
be tried under the War Crimes Act of 1996 to encompass only
``grave breaches'' of the Geneva Convention. U.S. agents
could not be tried under the
[[Page H7943]]
War Crimes Act for past actions that degraded and humiliated
detainees. The bill also limits any use of international law
such as the Geneva Convention in interpreting the War Crimes
Act.
Mr. Speaker, what is sometimes lost sight of in all the tumult and
commotion is that the reason we have observed the Geneva Conventions ``
since their adoption in 1949 is to protect members of our military. But
as the Judge Advocate Generals pointed out, the compromise bill could
place United States servicemembers at risk by establishing an entirely
new international standard that American troops could be subjected to
if captured overseas. As Rear Admiral Bruce McDonald testified:
I go back to the reciprocity issue that we raised earlier,
that I would be very concerned about other nations looking in
on the United States and making a determination that, if it's
good enough for the United States, it's good enough for us,
and perhaps doing a lot of damage and harm internationally if
one of our servicemen or -women were taken and held as a
detainee.
What's more, Mr. Speaker, the Geneva Conventions also protect those
not in uniform--special forces personnel, diplomatic personnel, CIA
agents, contractors, journalists, missionaries, relief workers and all
other civilians. Changing our commitment to this treaty could endanger
them, as well.
We can fix these deficiencies easily if we only we have the will.
What we should do is recommit the bill with instructions to add two
important elements: (1) expedited constitutional review of the
legislation; and (2) a requirement that these military commissions be
reauthorized after three years.
Under expedited review, the constitutionality of the military
commission system could be tested and determined quickly and early--
before there are trials and convictions. And it would help provide
stability and sure-footing for novel legislation that sets up a
military commissions system unlike anything in American history.
Such an approach provides no additional rights to alleged terrorists.
All it does is give the Supreme Court of the United States the ability
to decide whether the military commissions system under this act is
legal or not. It simply guarantees rapid judicial review.
requiring reauthorization in three years
Second, any system of military commissions to deal with detainees
should be required to be reauthorized in three years. There are several
good for requiring Congress to reaffirm its judgment that such
tribunals are necessary:
The Military Commissions Act of 2006 is a far-reaching measure that
implements an entirely new kind of military justice system outside the
Uniform Code of Military Justice. It has many complex provisions.
This legislation has been rushed to the floor. It has numerous
provisions that are still poorly understood by many in Congress. By
requiring a reauthorization in three years, we give Congress the
ability to carefully review how this statute is working in the real
world.
Providing for a reauthorization in three years is the best way to
ensure congressional oversight. This reauthorization requirement will
allow Congress to evaluate the effectiveness of the military commission
provisions and decide whether they need any modifications in the
future.
The reauthorization requirement in the PATRIOT Act has worked well--
compelling Congress to review how various provisions in the PATRIOT Act
have worked. As a result of congressional review, important
modifications in the PATRIOT Act were signed into law in January 2006
when 16 provisions were reauthorized.
Mr. Speaker, even Republicans on the House Judiciary Committee
admitted that the only way Congress was able to get information out of
the Justice Department about the operation of the PATRIOT Act was that
Congress had to reauthorize it--similarly, the only way Congress will
be able to perform proper oversight on military commissions is this
similar requirement that the program must be reauthorized. The
reauthorization requirement is a critical tool in Congress' ability to
hold the Administration accountable and review the military commission
program's performance.
Mr. Speaker, I cannot recall being asked to render final judgment on
a matter of such scope, consequence, and moment in so short a period of
time with such a sparsely developed legislative record. Now is not the
time to rush blindly forward. Rather, now more than ever, it is
important to take our time and make the right decision and establish
the right policy. And the right policy is not to jettison the Geneva
Convention.
We should not try to redefine the Geneva Convention. We should not do
anything to alter our international obligations in an election-year
rush. We cannot use international law only when it is convenient and
expedient. Our commitment to the Geneva Conventions gives us the moral
high ground. This is true in both a long war against radical terrorists
and a war for the hearts and minds of people from every religion and
every nation. If we compromise our values, the terrorists win. As
Senator McCain has said: ``This is not about the terrorists are, this
is about who we are.''
The United States was one of the prime architects of the Geneva
Conventions and other international laws. Our goal was to protect
prisoners of war in all kinds of armed conflicts and insure that no one
would be outside the law of war. Coming shortly after World War II,
they knew the horrors of war but they still chose to limit the
inhumanity of war by establishing minimum protections of due process
and humane treatment, even for those accused of grave breaches of the
Conventions.
Mr. Speaker, our nation has the finest military in the world. Our
nation also deserves to have the finest military justice system in the
world. I oppose S. 3930 because it departs significantly from the tried
and true procedures established in the UCMJ.
The United States has long served as the model for the world of a
civilized society that effectively blends security and human liberty.
When we refuse to observe the very international standards for the
treatment of detainees, which we were so instrumental in developing, we
provide encouragement for others around the world to do the same. Our
British allies have demonstrated that these traditional principles can
be adhered to without distinguishing the ability to provide for the
security of its citizens. We must do likewise.
Mr. Speaker, the treatment and trials of detainees by the United
States is too important not to do it right. In the words of Jonathan
Winthrop, often quoted by President Reagan, ``for we must consider that
we shall be as a City upon a hill. The eyes of all people are upon
us.'' Let us act worthy of ourselves and our nation.
So Mr. Speaker, I stand in opposition to this legislation. But I do
not stand alone. I stand with former Secretary of State Colin Powell. I
stand with former Chairman of the Joint Chiefs John Vesey. I stand with
the 911 Families Opposed to Administration Efforts to Undermine Geneva
Conventions. I stand with the retired federal judges and admirals and
Judge Advocate Generals.
The bill before us is not the right way to do justice by the American
people. I therefore cannot support it and I urge my colleagues to
reject it. We have time to come up with a better product and we should.
The American people deserve no less. The eyes of the world are upon us.
Let us act worthy of ourselves.
Mr. SKELTON. I yield 1\1/2\ minutes to the gentleman from New York
(Mr. Nadler).
Mr. NADLER. Mr. Speaker, this bill says the term ``unlawful enemy
combatant,'' means, one, a person who is engaged in hostilities or who
is purposefully and materially supportive of hostilities against the
United States; or, two, a person who has been determined to be an
unlawful enemy combat status, review tribunal, or another competent
tribunal established under the authority of the President.
In other words, you could become an unlawful enemy combatant because
you are adjudged by a tribunal; or, one, because the President says so
without a tribunal. Otherwise, this language has no meaning. That's
page 3 of the bill.
And if you look at page 93 of the bill, you find that no court shall
have jurisdiction to hear an application for writ of habeas corpus or
for an application relating to any aspect of the detention transfer,
treatment, trial, or conditions of confinement of an alien who is an
unlawful enemy combatant.
In other words, anyone other than the citizen can be accused by the
President or by any bureaucrat of being an unlawful enemy combatant,
thrown into jail, and get no benefits.
We have heard repeatedly that we are giving rights to terrorism. No,
we are not. We are not trying to give rights to terrorists. We are
saying that before someone is accused of rape or murder, you don't
string them up; you first give them a trial and then string them up.
And what they are saying, what this bill says is the President or his
designee can designate someone as an unlawful enemy combatant, and,
with no trial, no hearing, no status review, no nothing, throw them in
jail forever. That is un-American. It is worse than what we rebelled
against the King of England for in 1776, and we should be ashamed of
ourselves.
Mr. HUNTER. I yield myself such time as I may consume, Mr. Speaker.
And let me make five points here.
First, there is nothing in this language that directs people to pick
up or not pick up people. This is the language. This bill designs and
constructs military commissions. On page 8 of the bill it gives the
jurisdiction of the commission, and it says: ``A military commission
under this chapter shall have
[[Page H7944]]
jurisdiction to try any offense made punishable by this chapter or the
law of war when committed by an alien unlawful enemy combatant before,
on, or after September 11, 2001.'' That would allow us also to try
those folks from the Cole and the Embassy bombings.
With respect to habeas, there is no soldier in the world, no POW in
the world from our research who has a habeas right.
And let me go to Mr. Wu's point. Mr. Wu said, when we pointed out the
Detainee Treatment Act provided for review, he said that he thought it
expired because it was attached to an appropriations bill and expired
annually. That is not so. It is a permanent code. So the Detainee
Treatment Act is in place. And if the gentleman can show me where it is
expired, we will be happy to entertain that.
Secondly, the gentleman also said that it was procedural only. I am
referring to the Detainee Treatment Act that says that the court has
the jurisdiction to review relating to any aspect, and I am quoting,
any aspect of the detention of the person in question, relating to any
aspect. And, of course, that would go as to whether he was a combatant.
So it was not as you stated, it is not simply a procedural review.
So I just want to go over those points.
I reserve the balance of my time.
Mr. SKELTON. I yield 2 minutes to the gentlewoman from California
(Mrs. Davis), who is a member of the Armed Services Committee.
Mrs. DAVIS of California. Mr. Speaker, I want to give this
administration, any administration, the ability to prosecute, convict,
and punish individuals who have committed terrorist acts and who are
planning acts against the United States. But we must do this under the
guidelines outlined by the Supreme Court in Hamdan v. Rumsfeld.
The Court entrusted this Congress with the duty to reform military
tribunals in a matter consistent with the Constitution and
international treaty obligations.
While the Senate attempted to respect our obligations under Geneva,
concern remains. We have heard that on many occasions that this bill
will grant the Executive the power to define certain types of
interrogation methods that may be inconsistent with common article 3 of
the Geneva Conventions.
Now, Mr. Speaker, in response to Hamdan, the House Armed Services
Committee heard from current and former judge advocate generals. Mr.
Speaker, I listened to them. Their testimony was compelling. Many spoke
out against modifying the Geneva Conventions in any way, in anyway,
because of the risk that this provision could put our troops in harm's
way and could be found to be inconsistent with Hamdan. Congress must
ensure that this doesn't happen.
In this bill, I believe, Mr. Speaker, that we miss an opportunity to
be absolutely clear on these points and to show the world that America
can be tough on terrorism while staying true to the values we hold so
dear.
Ms. JACKSON-LEE of Texas. If the gentlewoman would yield just for a
moment. I thank you for your comments. I think it should be clear that
the framework for soldiers may not be habeas in civilian language, but
there is a procedure that soldiers would have to be able to petition
their detention, and it is a military term. And what we are seeing in
the military tribunals commission language is that doesn't exist.
{time} 1245
Mr. SKELTON. Mr. Speaker, in closing, let me say that being tough on
terrorists not only centers about a conviction, a judgment rendered on
what they did, whether it be the death penalty, life imprisonment or a
term of years but also centers upon the fact that there is certainty
after a conviction; and the last thing I want to see coming out of this
is for there to be a reversal on appeal which destroys certainty
because of what we did in this law.
Mr. Speaker, I yield back the balance of my time.
Mr. HUNTER. Mr. Speaker, I yield the balance of my time to the
distinguished chairman of our Veterans Committee and former JAG
officer, Mr. Buyer, for our closing remarks.
Mr. BUYER. Mr. Speaker, to bring a chill into the debate, the issue
of who can be detained is not addressed in this bill. This bill is
about trying alien detainees who are unlawful enemy combatants. Nothing
in this bill changes the Detainee Treatment Act of 2005.
The SPEAKER pro tempore (Mr. Price of Georgia). All time has expired.
The Chair recognizes the gentleman from Wisconsin.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise in support of S. 3930, the Military Commissions
Act of 2006, which is identical to legislation this House passed in a
bipartisan manner on Wednesday evening by a vote 253-168. The other
body voted 65-34 to approve this bill last night.
Let me say that the only reason we are here today is because the
other body has committed a flagrant act of legislative plagiarism, once
again. The House passed its version of the bill first. They would not
take up a bill with an ``H.R.'' number but instead picked up the work
product that this House did, put an ``S.'' number on it, and thus
required us to have an hour debate on this issue for a second time.
I regret that, and I think all of the arguments that were made on
Wednesday when we fully and thoroughly debated this bill are just as
valid today as they were 2 days ago. Because there is not one word
changed in the legislation between the time it passed the House and the
time the Senate reintroduced it with an ``S.'' number and put us
through an hour debate on the rule and an hour debate on the same bill,
in my opinion unnecessarily.
Having said that, on the merits of the bill, the way we treat
terrorist enemy combatants sends a strong signal to the rest of the
world about our commitment to the rule of law. This legislation says we
will not subject enemy combatants in our custody to the cruel and
brutal treatment they regularly utilize against our soldiers and
civilians.
At the same time, this bill makes it clear to the terrorists and
their lawyers in America that America will not allow them to subvert
our judicial process nor to disrupt the war on terror with unnecessary
or frivolous lawsuits. The bill strikes the right balance. It
establishes a mechanism that is full and fair but also is orderly and
efficient.
Indeed, the bill provides some 26 new rights to terrorist detainees,
far more rights than any other system employed in history to try
suspected war criminals. Those who have suggested that this legislation
will be found unconstitutional are misguided.
In this legislation, we accomplish precisely what a majority of the
Supreme Court, and particularly Justice Breyer, invited us to do in the
Hamdan case: construct a full set of rules for conducting military
commissions that meet the fundamental test of fairness under our
Constitution.
On habeas corpus, let me again restate Congress' understanding of the
law, because it is against this backdrop that we pass this legislation
today.
The Supreme Court has never held that the Constitution's protections,
including habeas corpus, extend to noncitizens held outside the United
States. To repeat, the Supreme Court has never held that the habeas
corpus protections contained in the Constitution apply to noncitizens
held outside the United States.
In fact, the Supreme Court rejected such an argument in the 1950 case
of Johnson v. Eisentrager. That portion of Eisentrager is still good
law. Moreover, in the 1990 Verdugo case, the court reiterated that
aliens detained in the United States but with no substantial connection
to our country cannot avail themselves of the Constitution's
protections.
If the Supreme Court follows its own precedents and takes seriously
its invitation to Congress to legislate in this area, the Court should
have no problem concluding that this bill passes constitutional muster.
As we consider this legislation, it is important to remember, first
and foremost, that this bill is about prosecuting the most dangerous
terrorist that America has ever confronted, individuals like Khalid
Sheikh Mohammed, the mastermind of the 9/11 attacks, or Ahbd Nashiri,
who planned the attack on the USS Cole. None of their victims was
treated with the same kind of respect for human life and the rule of
law that is embodied in this legislation.
[[Page H7945]]
I urge my colleagues to support this legislation, and let me
reiterate for my colleagues the 26 rights for terrorist detainees that
are created by this legislation. They include:
The right to be informed of the charges against them as soon as
practicable;
The right to service of charges sufficiently in advance of trial to
prepare a defense;
The right to reasonable continuances;
The right to preemptory challenge against members of the commission
and challenges for cause against members of the commission and the
military judge;
Witness must testify under oath, and judges, counsels and members of
the military commission must take an oath.
There is a right to enter a plea of not guilty.
There is a right to obtain witnesses in other evidence.
There is a right to exculpatory evidence as soon as possible.
There is a right to be present in court with the exception of certain
classified evidence involving national security, preservation of safety
or preventing disruption of proceedings;
The right to a public trial except for national security issues or
physical safety issues;
The right to have any findings or sentences announced as soon as
determined;
The right against compulsory self-incrimination;
The right against double jeopardy;
The defense of lack of mental responsibility;
Voting by members of the military commission by secret written
ballot;
Prohibition against unlawful command influence toward members of the
commission, counsel or military judges;
Two-thirds vote of members required for conviction and three-quarters
vote required for sentence of life or over 10 years, and unanimous
verdict required for the death penalty;
Verbatim authenticated record of trial;
Cruel or unusual punishments are prohibited;
Treatment and discipline during confinement the same as afforded to
prisoners in U.S. domestic courts;
The right to review the full factual record by the convening
authority; and
The right to at least two appeals, including to a Federal Article III
appellate court.
I submit, Mr. Speaker, that none of the people who have been beheaded
by terrorists had any of those rights.
Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would like to begin by inserting the New York Times
editorial of September 28 entitled ``Rushing Off a Cliff.''
[From the New York Times, Sept. 28, 2006]
Rushing Off a Cliff
Here's what happens when this irresponsible Congress
railroads a profoundly important bill to serve the mindless
politics of a midterm election: The Bush administration uses
Republicans' fear of losing their majority to push through
ghastly ideas about antiterrorism that will make American
troops less safe and do lasting damage to our 217-year-old
nation of laws--while actually doing nothing to protect the
nation from terrorists. Democrats betray their principles to
avoid last-minute attack ads. Our democracy is the big loser.
Republicans say Congress must act right now to create
procedures for charging and trying terrorists--because the
men accused of plotting the 9/11 attacks are available for
trial. That's pure propaganda. Those men could have been
tried and convicted long ago, but President Bush chose not
to. He held them in illegal detention, had them questioned in
ways that will make real trials very hard, and invented a
transparently illegal system of kangaroo courts to convict
them.
It was only after the Supreme Court issued the inevitable
ruling striking down Mr. Bush's shadow penal system that he
adopted his tone of urgency. It serves a cynical goal:
Republican strategists think they can win this fall, not by
passing a good law but by forcing Democrats to vote against a
bad one so they could be made to look soft on terrorism.
Last week, the White House and three Republican senators
announced a terrible deal on this legislation that gave Mr.
Bush most of what he wanted, including a blanket waiver for
crimes Americans may have committed in the service of his
antiterrorism policies. Then Vice President Dick Cheney and
his willing lawmakers rewrote the rest of the measure so that
it would give Mr. Bush the power to jail pretty much anyone
he wants for as long as he wants without charging them, to
unilaterally reinterpret the Geneva Conventions, to authorize
what normal people consider torture, and to deny justice to
hundreds of men captured in error.
These are some of the bill's biggest flaws:
Enemy Combatants: A dangerously broad definition of
``illegal enemy combatant'' in the bill could subject legal
residents of the United States, as well as foreign citizens
living in their own countries, to summary arrest and
indefinite detention with no hope of appeal. The president
could give the power to apply this label to anyone he wanted.
The Geneva Conventions: The bill would repudiate a half-
century of international precedent by allowing Mr. Bush to
decide on his own what abusive interrogation methods he
considered permissible. And his decision could stay secret--
there's no requirement that this list be published.
Habeas Corpus: Detainees in U.S. military prisons would
lose the basic right to challenge their imprisonment. These
cases do not clog the courts, nor coddle terrorists. They
simply give wrongly imprisoned people a chance to prove their
innocence.
Judicial Review: The courts would have no power to review
any aspect of this new system, except verdicts by military
tribunals. The bill would limit appeals and bar legal actions
based on the Geneva Conventions, directly or indirectly. All
Mr. Bush would have to do to lock anyone up forever is to
declare him an illegal combatant and not have a trial.
Coerced Evidence: Coerced evidence would be permissible if
a judge considered it reliable--already a contradiction in
terms--and relevant. Coercion is defined in a way that
exempts anything done before the passage of the 2005 Detainee
Treatment Act, and anything else Mr. Bush chooses.
Secret Evidence: American standards of justice prohibit
evidence and testimony that is kept secret from the
defendant, whether the accused is a corporate executive or a
mass murderer. But the bill as redrafted by Mr. Cheney seems
to weaken protections against such evidence.
Offenses: The definition of torture is unacceptably narrow,
a virtual reprise of the deeply cynical memos the
administration produced after 9/11. Rape and sexual assault
are defined in a retrograde way that covers only forced or
coerced activity, and not other forms of nonconsensual sex.
The bill would effectively eliminate the idea of rape as
torture.
There is not enough time to fix these bills, especially
since the few Republicans who call themselves moderates have
been whipped into line, and the Democratic leadership in the
Senate seems to have misplaced its spine. If there was ever a
moment for a filibuster, this was it.
We don't blame the Democrats for being frightened. The
Republicans have made it clear that they'll use any
opportunity to brand anyone who votes against this bill as a
terrorist enabler. But Americans of the future won't remember
the pragmatic arguments for caving in to the administration.
They'll know that in 2006, Congress passed a tyrannical law
that will be ranked with the low points in American
democracy, our generation's version of the Alien and Sedition
Acts.
Mr. Speaker, the New York Times editorial summarizes the simple fact
that what we are doing is giving the President the power to jail, and I
am quoting from the editorial, pretty much anyone he wants for as long
as he wants without charging them, to unilaterally reinterpret the
Geneva Conventions, to authorize what normal people consider torture,
and to deny justice to hundreds of men captured in error.
I want to repeat that, because I could have taken a lot of time to
say the same thing.
The President in this measure would be given the power to jail pretty
much anyone he wants for as long as he wants without charging them, to
unilaterally reinterpret the Geneva Conventions, to authorize what
normal people consider torture, and to deny justice to hundreds of men
captured in error.
Is there anybody that would really want to implement a piece of
legislation on this last day before recess that would do that?
Well, maybe there is innocent error. I have talked about the very
esteemed Attorney General from California who has up until today been
arguing that there are two writs of habeas corpus.
But then I come to the gentleman from Indiana who says that there is
nothing in this bill that relates to who can be detained. He says
absolutely nothing.
The first page of the bill starts off with ``unlawful enemy
combatant.'' The term ``unlawful enemy combatant'' means a person who
has engaged in hostilities or who has purposefully or materially
supported hostilities against the United States, and they go
[[Page H7946]]
on to tell you that he can be subjected to a combatant status review
tribunal or any other tribunal established under the authority of the
President or the Secretary of Defense. That's the first page.
Then I get to my esteemed chairman of the committee that the United
States has never held that people can be detained outside of the U.S.
and have habeas rights. Well, as my colleague, the gentleman from New
York (Mr. Nadler), points out, we are talking about being picked up and
held indefinitely from Chicago. You don't have to be outside of the
U.S. That's the problem. This is the most drastic piece of legislation
that has ever come before the House of Representatives dealing with the
writ of habeas corpus.
Mr. Speaker, I yield 2 minutes to the gentleman from New York (Mr.
Nadler).
Mr. NADLER. Mr. Speaker, the radical nature of this bill is that, as
the gentleman from Michigan said, anybody picked up in Chicago can be
subject to this bill. The President can determine unilaterally, look at
paragraph 1 on page 3, that someone is an unlawful enemy combatant, or
they can put the person before a tribunal, paragraph 2 on page 3, to
decide if he is an enemy combatant. But you don't have to have a
tribunal.
A little later it says that military tribunals are not subject to the
speedy trial rule. So someone can be determined by the executive branch
to be an unlawful enemy combatant, someone in America, never have a
trial, never go before a combat status review tribunal, never go before
a military commission, have none of the rights everybody is talking
about, and be held in jail forever. That is wrong.
Secondly, the gentleman who was debating me before said soldiers have
never had rights to habeas corpus. Certainly, if you pick up someone on
the battlefield with a rifle in his arms, he shouldn't have habeas
corpus. But if you pick up somebody in Chicago or New York or Los
Angeles, who is to say that person is an unlawful enemy combatant? If
you pick up somebody in Chicago or New York and say he is a murderer or
a rapist and you want to hold him in jail until you can have a trial,
you go before a judge and say, here is our evidence. There is some
evidence that he is, in fact, a murderer or rapist to justify keeping
him in jail.
{time} 1300
Under this, though, you say he is an unlawful enemy combatant and
that's that. You never hear from him again. That is against all our
traditions. It makes the President a dictator because someone who
claims the power to put someone in jail forever, with no hearing, no
evidence, and no recourse, is a dictator. And on page 93 of the bill it
says that no court shall have jurisdiction to entertain habeas corpus,
which is simply a request to say show me why you are holding me in
jail, or to entertain any action saying, Hey, you are torturing me,
about the condition of confinement. So you can take this person because
the President says so, put him in jail, subject him to any torture or
whatever, and whatever you write in the law doesn't matter because no
court can hear the case. There is no one to bring the complaint before
it. That is wrong and it is insupportable.
Mr. SENSENBRENNER. Mr. Speaker, the gentleman from California, Mr.
Lungren, was so moved by the last speech that I yield him 2 minutes.
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I thank the
gentleman for the time.
Mr. Speaker, let me make clear, first of all, the distinguished
ranking member of the full committee referred to the first page of the
bill, but he needs to go on further, to section 948b subsection (a),
which defines the purpose of the military tribunals, where it says:
``This chapter establishes procedures governing the use of military
commissions to try alien unlawful enemy combatants.'' So where
initially he referred to the definition of unlawful enemy combatants,
this bill refers to ``alien'' unlawful enemy combatants engaged in
hostilities against the U.S. So you can't pick up just anybody in the
United States.
Section 948a(3) defines an alien as a person who is not a citizen of
the United States. Therefore, the language of the bill before us
precludes the use of military commissions to try citizens of the U.S.
Second, the limitations on habeas corpus also only apply to alien
enemy combatants. By its very terms, section 7 says that ``no court,
justice, or judge shall have jurisdiction to hear or consider an
application for a writ of habeas corpus filed by or on behalf of an
alien detained by the United States who has been determined by the
United States to have been properly detained . . . '' Therefore, under
the expressed terms of the bill, an American citizen will have the
unencumbered ability to challenge his or her detention as they have
under the Constitution.
So let's not confuse it. Let's read all sections of the bill. We are
dealing with, as the bill says, ``alien unlawful enemy combatants,''
those people who are not in uniform, those people who are not following
the rules of international law with respect to war, those people who
hide behind women and children, those people who use the very fact that
they are not identified as ``legal combatants'' to try to kill and maim
Americans around the world.
That is what this tribunal is set up for, and to give them more
rights than they would have virtually anywhere else and in any other
system, as articulated by the chairman of the full committee. So let's
not confuse the facts.
Mr. CONYERS. Mr. Speaker, I yield 1 minute to the distinguished
gentlewoman from Texas (Ms. Jackson-Lee), a superlative member of the
committee.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the distinguished
gentleman. He has waged a powerful argument.
My good friend from California is arguing, if we had taken the time
to clarify this bill. Let me tell you what is really in the bill.
First of all, as I continue to acknowledge the existence of the lost
lives of our soldiers, the bill does not clarify this whole definition.
We have 11,000 non-U.S. citizens serving in the United States Army. We
have individuals who are U.S. legal aliens, United States citizens.
There is no clarification that they could not be defined as an unlawful
enemy combatant. The definition of ``alien'' is unclear. In some places
it is defined; in some places it is not.
In addition, the Geneva Conventions is not respected. We have taken
this away from the McCain-Warner compromise, and we have destroyed it
because what we have done is given the President, not this President,
any President, the ability to adjudge what the Geneva Conventions, how
to interpret it, how to utilize it.
This is a wrong way to ago. This should have more time. This is not a
political opportunity. This is not a campaign speech. These are the
lives of our soldiers.
Mr. Speaker, at this time I will insert into the Record a letter from
admirals and, as well, the 9/11 families opposing the military tribunal
commission.
September 12, 2006.
Senator John Warner,
Chairman, U.S. Senate Committee on Armed Services, Russell
Office Building, U.S. Senate, Washington, DC.
Senator Carl Levin,
Ranking Member, U.S. Senate Committee on Armed Services,
Russell Office Building, U.S. Senate, Washington, DC.
We find it necessary yet again to communicate with you
about issues arising out of our policies concerning detainees
held at Guantanamo Bay. It would appear that each time the
U.S. Supreme Court speaks, efforts are taken to reverse by
legislation the decision of the Court. We refer, of course,
to the Supreme Court's Rasul and Hamdan decisions and to the
provision in the Administration's proposed Military
Comissions Act of 2006 that would strip the federal courts of
jurisdiction over even the pending habeas cases that have
been brought by the detainees at Guantanamo to challenge the
basis for their detention. We urge you to reject any such
habeas-stripping provision.
As we have argued and agreed since 9/11, it is necessary
for Congress to enact legislation to create military
commissions that recognize both the basic notions of due
process and the need for specialized rules and procedures to
deal with the new paradigm we call the war on terror. This
effort must cover those already charged with violating the
laws of war and those newly transferred to Guantanamo Bay.
But the military commissions we are now fashioning will
have no application to the vast majority of the detainees who
have never been charged, and most likely never will be
charged. These detainees will not go before any commissions,
but will continue to be held as ``enemy combatants.'' It is
critical to these detainees, who have not been charged with
any crime, that Congress not
[[Page H7947]]
strip the courts of jurisdiction to hear their pending habeas
cases. The habeas cases are the only avenue open for them to
challenge the bases for their detention--potentially life
imprisonment--as ``enemy combatants.''
We strongly agree with those who have argued that we must
arrive at a position worthy of American values, i.e., that we
will not allow military commissions to rely on secret
evidence, hearsay, and evidence obtained by torture. But it
would be utterly inconsistent, and unworthy of American
values, to include language in the draft bill that would, at
the same time, strip the courts of habeas jurisdiction and
allow detainees to be held, potentially for life, based on
CSRT determinations that relied on just such evidence. The
effect would be to give greater protections to the likes of
Khalid Sheikh Mohammed than to the vast majority of the
Guantanamo detainees, who claim that they had nothing to do
with al Qaeda or the Taliban.
We are on a course that should have been plotted and
navigated years ago, and we might be close to consensus. We
ask that, in the closing moments of your consideration of
this vital bill, you restore the faith of those who long have
been a voice for simple commitment to our longstanding basic
principles, to our integrity as a nation, and to the rule of
law. We urge you to oppose any further erosion of the proper
authority of our courts and to reject any provision that
would strip the courts of habeas jurisdiction.
As Alexander Hamilton and James Madison emphasized in the
Federalist Papers, the writ of habeas corpus embodies
principles fundamental to our nation. It is the essence of
the rule of law, ensuring that neither king nor executive may
deprive a person of liberty without some independent review
to ensure that the detention has a reasonable basis in law
and fact. That right must be preserved. Fair hearings do not
jeopardize our security. They are what our country stands
for.
Sincerely,
John D. Hutson,
Rear Admiral, JAGC, USN (Ret.).
Donald J. Guter,
Rear Admiral JAGC, USN (Ret.).
David M. Brahms,
Brigadier General, USMC (Ret.).
____
9/11 Families Oppose Administration Efforts To Undermine Geneva
Conventions
Washington, D.C.--Today 9/11 family members sent a letter
to the Senate strongly opposing the Bush Administration's
proposals to undermine the Geneva Conventions, decriminalize
brutal interrogations and create military commissions lacking
fundamental due process guarantees.
The letter challenges the Administration's claim that the
Military Commissions Act of 2006 is needed to make America
safer. ``There are those who would like to portray the
legislation as a choice between supporting the rights of
terrorists and keeping the United States safe. We reject this
argument. We believe that adopting policies against terrorism
which honor our values and our international commitments
makes us safer and is the smarter strategy.''
The letter urges members of Congress to reject any
legislation which is at all ambiguous on the criminality of
brutal interrogation techniques and to oppose supporting
military trials that lack due process and judicial
accountability.
The letter was signed by the parents of a FDNY fireman
killed in the World Trade Center collapse, the mother of a
NYPD policeman, along with relatives of victims from all four
of the attacks, including a passenger on Flight 93 that
crashed in Pennsylvania.
The letter closes by urging members of Congress to ``reject
the Administration's ill-conceived proposals which will make
us both less safe and less proud as a nation.''
____
September 14, 2006.
Dear Senator: As members of families who lost loved ones in
the 9/11 attacks, we are writing to express our deep concern
over the provisions of the Administration's proposed Military
Commissions Act of 2006.
There are those who would like to portray the legislation
as a choice between supporting the rights of terrorists and
keeping the United States safe. We reject this argument. We
believe that adopting policies against terrorism which honor
our values and our international commitments makes us safer
and is the smarter strategy.
We do not believe that the United States should
decriminalize cruel and inhuman interrogations. The Geneva
Convention rules against brutal interrogations have long had
the strong support of the U.S. because they protect our
citizens. We should not be sending a message to the world
that we now believe that torture and cruel treatment is
sometimes acceptable. Moreover, the Administration's own
representatives at the Pentagon have strongly affirmed in
just the last few days that torture and abuse do not produce
reliable information. No legislation should have your support
if it is at all ambiguous on this issue.
Nor do we believe that it is in the interest of the United
States to create a system of military courts that violate
basic notions of due process and lack truly independent
judicial oversight. Not only does this violate our most
cherished values and send the wrong message to the world, it
also runs the risk that the system will again be struck down
resulting in even more delay.
We believe that we must have policies that reflect what is
best in the United States rather than compromising our values
out of fear. As John McCain has said, ``This is not about who
the terrorists are, this is about who we are.'' We urge you
to reject the Administration's ill-conceived proposals which
will make us both less safe and less proud as a nation.
Sincerely,
Marilynn Rosenthal, Nicholas H. Ruth, Adele Welty, Nissa
Youngren, Terry Greene, John LeBlanc, Andrea LeBlanc,
Ryan Amundson, Barry Amundson, Colleen Kelly, Terry Kay
Rockefeller, John William Harris.
David Potorti, Donna Marsh O' Connor, Kjell Youngren,
Blake Allison, Tia Kminek, Jennifer Glick, Lorie Van
Auken, Mindy Kleinberg, Anthony Aversano, Paula
Shapiro, Valerie Lucznikowska, Lloyd Glick.
James and Patricia Perry, Anne M. Mulderry, Marion
Kminek, Alissa Rosenberg-Torres, Kelly Campbell, Bruce
Wallace, John M. Leinung, Kristen Breitweiser, Patricia
Casazza, Michael A. Casazza, Loretta J. Filipov, Joan
Glick.
Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentleman from
Maryland (Mr. Hoyer), our distinguished whip.
Mr. HOYER. Mr. Speaker, I thank the gentleman from Michigan for
yielding.
I rise to talk about briefly coddling terrorists.
There is no one in this body, no one in this country who wants to
coddle terrorists. But let me remind my friends that Saddam Hussein was
taken out of a hole and captured. And we did not torture him, and we
have accorded him legal rights to hear the evidence, to address the
court, and be represented by counsel. Why did we do that? Because we
wanted to coddle Saddam Hussein? Did this administration want to coddle
Saddam Hussein? Absolutely not. But because our values and the values
of the international community suggested that.
And the ``Butcher of Belgrade,'' Milosevic, who murdered tens of
thousands of people and ethnically cleansed 2 million people, we
accorded him legal rights because we wanted to coddle him? No. Because
that was our value system.
And, yes, even the butchers of Berlin, those who murdered millions of
people in the Second World War, at Nuremburg were given their rights to
see the evidence, to confront their accusers, and to have the proof
adduced at trial. Why did we do that? Because we wanted to coddle the
butchers of Berlin? Absolutely not. It was because those are our
values, the values of the international community, and the values of
our Founding Fathers.
Let us not rush to judgment in this instance. Let us recognize and
honor our values. That does not mean that we coddle the murderer, the
rapist, or the terrorist. It means that we want a civilized society in
which to live in this country and, yes, around the world.
Mr. CONYERS. Mr. Speaker, I yield 15 seconds to my colleague from
Oregon (Mr. Wu).
Mr. WU. Mr. Speaker, we do a grave injustice today because this
statute applies to American citizens as well as everybody else.
Fred Korematsu was a U.S. citizen. He was picked up on a U.S. street.
And we issued an apology years later.
If we pass this bill today, some future Congress, long after we are
out of office, long after we are dead, some future Congress will be
issuing an apology.
Mr. CONYERS. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, this has been an exceedingly interesting discussion here
today. I only close by reminding the distinguished member of the
Judiciary Committee from California that in the opening parts of this
law, this bill, there is no word ``alien'' anywhere in it. It is
referring to an unlawful enemy combatant. An unlawful enemy combatant
could be an American.
And so I oppose this legislation, finally, because it endangers our
troops because we are lowering the standards set forth in the Geneva
Conventions by allowing the President to unilaterally interpret the
conventions and that can be operative against our own troops. Don't
endanger our own troops.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, there is one issue that really has not come up in this
debate, and that is the immunity that is given in this bill to the
people who are interrogating the enemy combatants.
[[Page H7948]]
We need to pass this bill so that interrogations can start up again
because without the immunity, anybody who is hired by the United States
Government to try to find out whom they are planning on blowing up next
would be subject to a lawsuit that would be filed by some attorney that
would claim that he was representing the public interest.
This is a protection bill for the interrogators. It is something that
is needed, and that is another reason why it ought to pass.
Mr. McGOVERN. Mr. Speaker, I will not take up any more time speaking
about why I oppose this bill. I spoke at length during the House
debate, and nothing has changed over the past 48 hours to make me
believe that undermining our history, values and constitutional
commitment to human rights, civil rights, the rule of law, due process
and judicial review is the right thing to do.
Instead, I would like to submit for the Record the views of others in
the face of this monumental mistake this Congress is making in
submitting to the demands of an imperial White House.
I ask unanimous consent to submit into the Record the following
materials:
1. Resolution Condemning Torture by the Conference of Major Superiors
of Men;
2. A September 22, 2006 letter from human rights organizations to the
U.S. Senate regarding the Military Commissions Act of 2006;
3. September 28, 2006 New York Times editorial, ``Rushing Off a
Cliff;'' and
4. ``Questions for the Interrogators,'' Commentary by Fareed Zakaria,
September 25, 2006, Newsweek
Resolution Condemning Torture
CMSM condemns torture in all its forms regardless of
putative justification, and encourages support and help for
victims of torture throughout the world, but especially in
areas under the control of the United States Government.
Rationale: Jesus' death and resurrection revealed the
infinite value of each human being in God's eyes. [Cf. Mt
5:44-48; 10:29-31] Torture is a denial of that value. The
Catechism of the Catholic Church condemns torture as
``contrary to respect for the person and for human dignity,''
and Gaudium et Spes of the Second Vatican Council [#27]
characterizes as criminal ``all violations of the integrity
of the human person, such as mutilation, physical and mental
torture, undue psychological pressures,'' including them in a
list that also contains ``all offenses against life itself,
such as murder, genocide, abortion, euthanasia and willful
suicide.''
Resolution: Given the universal condemnation of torture in
both International Law and religious documents, the
Conference of Major Superiors of Men resolves:
To condemn unequivocally any use of torture by agents of
any government for any reason;
To encourage its constituencies to use their resources of
education, preaching and advocacy to eliminate use of torture
as contrary to both natural law and human dignity, and in
fundamental opposition to God's salvific love for humanity:
To join with others to work in advocacy for the abolition
of torture, and to offer help and support to victims of
torture.
The Justice and Peace office will be responsible for
implementation.
Additional Facts/Related Circumstances: Background: ``The
torturer has become like the pirate and slave trader before
him hostis humani generis, an enemy of all mankind.'' So
proclaimed the US Court of Appeals for the Second Circuit in
1980 [Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir.(N.Y.)
Jun 30, 1980)]. In his 1958 Chicago address to the Radio and
Television News Directors Association, Edward R. Murrow said,
``Not every story has two sides.''
The United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment [1984]
defines torture as follows:
For the purposes of this Convention, the term ``torture''
means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a
third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official
or other person acting in an official capacity. It does not
include pain or suffering arising only from, inherent in or
incidental to lawful sanctions. [A listing of other
international documents that condemn torture is available at
www.apt.ch/un/Torture%20Definition.doc.]
Recent actions brought to light about the involvement of
the U.S. military and other branches of the government in the
application of torture to prisoners demand a faith-based
response. The USCCB has spoken as follows on the issue:
The United States has a long history of leadership and
strong support for human rights around the world.
Ratifications of the Convention on Civil and Political Rights
and the Convention Against Torture embody our nation's
commitment to establishing standards of conduct and
prohibiting torture and other acts of inhumane treatment of
persons in U.S. custody. Tragically, our nation's record has
been marred by reported instances of abusive treatment of
enemy combatants held in military prisons in Iraq,
Afghanistan and Guantanamo Bay, Cuba. [The complete document
is available at <a href='http://www.usccb.org/sdwp/international/
senateletterretorture100405.pdf'>www.usccb.org/sdwp/international/
senateletterretorture100405.pdf</a>.]
The CMSM Executive Committee issued a statement in May of
2004 that included the following:
The Executive Committee of the Conference of Major
Superiors of Men is greatly disturbed by the revelations of
torture and abuse by U.S. military personnel. We have
consistently called for U.S. troops to abide by international
standards and laws that govern the treatment of detainees and
have questioned the lack of access that international
monitoring organizations such as the Red Cross, the Red
Crescent, Amnesty International have had at detention centers
in Iraq, Afghanistan, and Guantanamo Bay. Reports by
independent organizations and military personnel, combined
with the photographs and the admission by Administration
officials of the abuses indicate that the U.S. military
personnel and others contracted by the U.S. to work in the
detention centers must be monitored to protect the rights and
dignity of detainees.
As people of faith and as leaders of the Catholic
congregations of the nearly 23,000 brothers and priests in
the United States we believe that we must address this issue.
Each human being is created with God-given dignity and each
life is precious. This dignity must always be upheld and
protected but especially so when an individual is being
detained and his or her rights are already limited. They
deserved to be treated with dignity and protected from
violence and humiliation. As Christians we are deeply
troubled that much of the humiliation and abuse violates the
beliefs and practices of Islam. As U.S. citizens we are
ashamed that those who represent our nation are perpetrating
these abuses. We believe that as a nation we stand for the
protection of human rights and uphold the dignity of all
peoples regardless of their ethnic or religious background
and we hold our national and military leaders responsible for
the conditions that made these abuses not only possible, but
who refused to acknowledge them even after they knew of the
abuses.
George Hunsinger of the National Religious Campaign against
Torture adapted these words from Dr. Martin Luther King, Jr.,
delivered at Riverside Church in New York in 1967:
A time comes when silence is betrayal. [People] do not
easily assume the task of opposing their government's policy,
especially in time of war. We must speak with all the
humility that is appropriate to our limited vision, but we
must speak. For we are deeply in need of a new way beyond the
darkness so close around us. We are called upon to speak for
the weak, for the voiceless, for the victims of our nation,
for those it calls ``enemy,'' for no document from human
hands can make these humans any less our brothers and
sisters.
Resources: A powerful article by Gary Haugen titled
``Silence on Suffering: Where are the voices from the
Christian community on cruel and degrading treatment of
detainees?'' appeared in Christianity Today in October of
2005.
Other useful links: The National Religious Campaign against
Torture; Torture Abolition and Survivors Network
International; Amnesty International; and Center for the
Victims of Torture.
Origin of Proposal: CMSM Justice and Peace Committee.
Budget: none.
Contact Person: T. Michael McNulty, SJ, Justice and Peace
Director.
____
September 22, 2006.
Hon. John Warner,
Hon. John McCain,
Hon. Lindsey Graham,
U.S. Senate,
Washington, DC.
Dear Senators Warner, McCain and Graham: We write to
express our grave concerns over the reported agreement
reached with the White House on the text of the Military
Commissions Act of 2006.
While the agreement rejects the Administration's proposal
to define and narrow the scope of US obligations under Common
Article Three of the Geneva Conventions, its language
concerning the War Crimes Act contains potentially dangerous
ambiguities. These ambiguities create serious risks for
American servicemembers as well as detainees in US custody.
We believe that a good faith interpretation of U.S. law,
including the Detainee Treatment Act, and U.S. international
obligations make it absolutely clear that practices such as
waterboarding, cold cell, prolonged standing, sleep
deprivation, threats and assaults on prisoners are illegal.
These and similar abusive techniques manifestly cause serious
mental and physical suffering and constitute grave breaches
of Common Article 3. Nonetheless, for several years there
have been persistent reports that such techniques have been
used on detainees. Moreover, troubling legal justifications
for them have been devised and provided to U.S.
interrogators. Some of those spurious legal justifications,
such as the Bybee Memorandum, have now been abandoned; but
there are continuing reports that
[[Page H7949]]
other legal justifications have been provided for conduct we
consider to be indisputably illegal under both U.S. and
international law.
Against this background of repeated legal contortions used
to justify and permit torture and abuse--some abandoned, some
apparently still in effect--it is absolutely essential that
the Congress be clear that these kinds of abusive
interrogation techniques are illegal and covered by the War
Crimes Act. We urge you to leave no shred of doubt on these
crucial issues by naming specific techniques which amount to
per se violations of the War Crimes Act or, at a minimum,
creating a legislative record that these techniques are
prohibited.
We also oppose the provisions in the bill that strip
individuals who are detained by the United States of the
ability to challenge the factual and legal basis of their
detention. Habeas corpus is necessary to avoid wrongful
deprivations of liberty and to ensure that executive
detentions are not grounded in torture or other abuse.
Likewise, we are deeply concerned about the provisions that
permit the use of evidence obtained through coercion.
This letter is not intended to offer a comprehensive
catalogue of the provisions in the proposed compromise
legislation which are of great concern. We appreciate the
efforts you have made to insure that abusive interrogations
cannot take place and to provide fair judicial procedures for
detainees. However, we do not believe that the proposed
compromise can be said to have satisfied those important
goals and feel strongly that these issues must be resolved.
Sincerely,
Center for Victims of Torture; Brennan Center for Justice
at NYU Law School; Center for American Progress Action
Fund; Physicians for Human Rights; Washington Office on
Latin America; Open Society Policy Center; Amnesty
International USA; Human Rights Watch; Center for
National Security Studies; Human Rights First; American
Civil Liberties Union; Robert F. Kennedy Memorial
Center for Human Rights; Center for Human Rights and
Global Justice, NYU School of Law.
____
[From the New York Times, Sept. 28, 2006]
Rushing Off a Cliff
Here's what happens when this irresponsible Congress
railroads a profoundly important bill to serve the mindless
politics of a midterm election: The Bush administration uses
Republicans' fear of losing their majority to push through
ghastly ideas about antiterrorism that will make American
troops less safe and do lasting damage to our 217-year-old
nation of laws--while actually doing nothing to protect the
nation from terrorists. Democrats betray their principles to
avoid last-minute attack ads. Our democracy is the big loser.
Republicans say Congress must act right now to create
procedures for charging and trying terrorists--because the
men accused of plotting the 9/11 attacks are available for
trial. That's pure propaganda. Those men could have been
tried and convicted long ago, but President Bush chose not
to. He held them in illegal detention, had them questioned in
ways that will make real trials very hard, and invented a
transparently illegal system of kangaroo courts to convict
them.
It was only after the Supreme Court issued the inevitable
ruling striking down Mr. Bush's shadow penal system that he
adopted his tone of urgency. It serves a cynical goal:
Republican strategists think they can win this fall, not by
passing a good law but by forcing Democrats to vote against a
bad one so they could be made to look soft on terrorism.
Last week, the White House and three Republican senators
announced a terrible deal on this legislation that gave Mr.
Bush most of what he wanted, including a blanket waiver for
crimes Americans may have committed in the service of his
antiterrorism policies. Then Vice President Dick Cheney and
his willing lawmakers rewrote the rest of the measure so that
it would give Mr. Bush the power to jail pretty much anyone
he wants for as long as he wants without charging them, to
unilaterally reinterpret the Geneva Conventions, to authorize
what normal people consider torture, and to deny justice to
hundreds of men captured in error.
These are some of the bill's biggest flaws:
Enemy Combatants: A dangerously broad definition of
``illegal enemy combatant'' in the bill could subject legal
residents of the United States, as well as foreign citizens
living in their own countries, to summary arrest and
indefinite detention with no hope of appeal. The president
could give the power to apply this label to anyone he wanted.
The Geneva Conventions: 'The bill would repudiate a half-
century of international precedent by allowing Mr. Bush to
decide on his own what abusive interrogation methods he
considered permissible. And his decision could stay secret--
there's no requirement that this list be published.
Habeas Corpus: Detainees in U.S. military prisons would
lose the basic right to challenge their imprisonment. These
cases do not clog the courts, nor coddle terrorists. They
simply give wrongly imprisoned people a chance to prove their
innocence.
Judicial Review: The courts would have no power to review
any aspect of this new system, except verdicts by military
tribunals. The bill would limit appeals and bar legal actions
based on the Geneva Conventions, directly or indirectly. All
Mr. Bush would have to do to lock anyone up forever is to
declare him an illegal combatant and not have a trial.
Coerced Evidence: Coerced evidence would be permissible if
a judge considered it reliable--already a contradiction in
terms--and relevant. Coercion is defined in a way that
exempts anything done before the passage of the 2005 Detainee
Treatment Act, and anything else Mr. Bush chooses.
Secret Evidence: American standards of justice prohibit
evidence and testimony that is kept secret from the
defendant, whether the accused is a corporate executive or a
mass murderer. But the bill as redrafted by Mr. Cheney seems
to weaken protections against such evidence.
Offenses: The definition of torture is unacceptably narrow,
a virtual reprise of the deeply cynical memos the
administration produced after 9/11. Rape and sexual assault
are defined in a retrograde way that covers only forced or
coerced activity, and not other forms of nonconsensual sex.
The bill would effectively eliminate the idea of rape as
torture.
There is not enough time to fix these bills, especially
since the few Republicans who call themselves moderates have
been whipped into line, and the Democratic leadership in the
Senate seems to have misplaced its spine. If there was ever a
moment for a filibuster, this was it.
We don't blame the Democrats for being frightened. The
Republicans have made it clear that they'll use any
opportunity to brand anyone who votes against this bill as a
terrorist enabler. But Americans of the future won't remember
the pragmatic arguments for caving in to the administration.
They'll know that in 2006, Congress passed a tyrannical law
that will be ranked with the low points in American
democracy, our generation's version of the Alien and Sedition
Acts.
____
[From Newsweek, Sept. 25, 2006]
Questions for the Interrogators
(By Fareed Zakaria]
A fierce debate over military tribunals has erupted in
Washington. This is great news. The American constitutional
system is finally working. The idea that the war on terror
should be fought unilaterally by the executive branch--a
theory the Bush administration promulgated for its entire
first term--has died. The secret prisons have come out of the
dark. Guantanamo will have to be closed or transformed.
The president and the legislative branch are negotiating a
new system to determine the guilt or innocence of terrorism
suspects, and it will have to pass muster with the courts. It
is heartening as well that some of the key senators
challenging the president's position are senior Republicans.
Principle is triumphing over partisanship. Let's hope the
debate will end with the United States' embracing a position
that will allow America to reclaim the moral high ground.
The administration's policy has undergone a sea change. The
executive branch has abandoned the idea that ``enemy
combatants''--that is, anyone so defined by the White House
or Defense Department--may be locked up indefinitely without
ever being charged, that secret prisons can be maintained,
that congressional input or oversight is unnecessary and that
international laws and treaties are irrelevant. The Geneva
Conventions, in particular, were dismissed during the
administration's first term by the then White House counsel
Alberto Gonzales for their ``quaint'' protections of
prisoners and ``obsolete'' limitations on interrogations.
Donald Rumsfeld publicly announced that the Conventions no
longer applied. The Bush administration's basic legal
argument, formulated by officials like the Justice
Department's John Yoo, was that this was a new kind of war,
that the executive branch needed complete freedom and
flexibility, with no checks or balances.
``There has been a paradigm shift on this whole issue,' a
senior administration official told me last week. ``The whole
legal framework that underpinned the administration's
approach in the first term is gone. John Yoo's arguments are
simply no longer applicable. You may disagree with where we
draw the lines, but we're now using concepts, principles and
approaches that are familiar, within the American legal
tradition and that of other civilized nations.''
The administration was forced to do much of this by the
Supreme Court's recent Hamdan decision and by the bold
opposition of senators like John McCain and Lindsey Graham.
But several officials, wishing to remain anonymous because of
the sensitivity of the matter, said Secretary of State
Condoleezza Rice and national security adviser Stephen Hadley
had been urging movement in this direction for some time.
``We concluded that this whole structure of prisoners,
interrogations, trials and tribunals had to be placed on a
sustainable basis,'' said one official. ``That meant Congress
had to be involved and the president had to explain the
programs and procedures publicly.''
The crucial issue, on which former Secretary of State Colin
Powell and other distinguished military figures have stood up
to Bush, is the treatment of prisoners under the Geneva
Conventions. Powell explained to me his deep concerns about
safeguarding American troops if ``we start monkeying around
with the common understanding of the Conventions.'' The
administration claims that it merely wants to provide
specific guidelines,
[[Page H7950]]
but the real aim appears to be to let CIA employees engage in
``rough'' interrogations without fear of legal sanctions.
Powell and the senators argue that the guidelines are
better left as they are--with a kind of calculated ambiguity
that deters U.S. interrogators from testing the limits.
``Clarifying' our treaty obligations will be seen as
`withdrawing' from them,'' warns Senator Graham, a former
staff judge advocate in the Air National Guard. He's right.
No other nation has sought to narrow the Geneva Conventions'
scope by ``clarifying'' them. Does the United States want to
be the first? Why not retain the status quo and then consult
with other countries that are also grappling with terror
suspects and arrive at a genuinely ``common'' clarification
of the Conventions? If we ``clarify'' the Conventions to
allow, say, waterboarding and other ``rough'' procedures,
what happens to a CIA operative who is captured in a foreign
country? Can that country ``clarify'' the Conventions and
torture him? If it does, would the United States have any
basis to condemn it and take action under international law?
Powell made another argument to me. ``Part of the war on
terror is an ideological and political struggle,'' he said.
``Our moral posture is one of our best weapons. We're not
doing so well on the public-diplomacy front. This would be
the wrong signal to send the world.'' The administration
seems blind to this political reality. After Guantanamo, Abu
Ghraib, Haditha and more, America desperately needs a symbol
that showcases its basic decency. Quibbling with the Geneva
Conventions is the wrong signal, by the wrong administration,
at the wrong time.
Mr. UDALL of Colorado. Mr. Speaker, the Senate-passed bill before us
today is identical to H.R. 6166. I could not support that bill when the
House considered it earlier this week, and nothing that has happened
since then has caused me to change my view that it should not be
enacted. So, I must continue to oppose it.
As I said earlier, I agree that Congress should establish clear
statutory authority for detaining unlawful enemy combatants and using
military tribunals to try them. In fact, I thought this should have
been done long age because I took seriously the warnings of legal
experts who said the system established by President Bush's unilateral
Executive Order lacked departed too far from America's fundamental
legal traditions to be immune from serious legal challenges.
That is why for several years I have cosponsored bills to replace
that Executive Order with a sound statute that would allow prosecutions
to proceed without the same vulnerability to challenge.
Unfortunately, until recently neither the president nor the
Republican leadership thought there was a need for Congress to act--the
president preferred to insist on unilateral assertions of executive
authority, and the leadership was content with an indolent abdication
of Congressional authority and responsibility.
Then, earlier this year, the Supreme Court put an end to that
approach with its decision in the case of Hamdan v. Rumsfeld, which
struck down the system established by the Executive Order--just what
many of us had seen coming, and which we had sought to avoid through
legislation.
So, we are voting on this bill only because the Supreme Court has
forced the Administration to do what it should have done much sooner--
come to Congress for legislation. And the voting is occurring this
week, under rushed procedures that do not permit consideration of any
changes, because, above all, the Republicans have decided they need to
claim a legislative victory when they go home to campaign, to help take
voters' minds off the Administration's missteps and their own failures.
But I think it is less important to get the job done before the
election than to do it right. And, regrettably, I remain convinced that
this bill fails that test.
I remain concerned about the bill's specific provisions. But just as
serious are my concerns about what the bill does not say. In
particular, I am concerned about the lack of any provisions to prevent
indefinite detentions of American citizens who have never left the
United States.
I cannot support any legislation intended to give the president--any
president, of any party authority to throw an American citizen into
prison without what the Supreme Court has described as ``a meaningful
opportunity to contest the factual basis for that detention before a
neutral decisionmaker.''
As I said when the House first debated this legislation, I prefer to
err on the side of caution when I must vote on a measure that is not
more clear on this point. And since that earlier debate, my concern--
and my unwillingness to vote for this legislation--has been heightened
by analyses of experts such as Professor Bruce Akerman of the Yale Law
School.
In an analysis published after the earlier vote here in the House--
which I am attaching for the benefit of our colleagues--Professor
Akerman says: ``The legislation . . . authorizes the president to seize
American citizens as enemy combatants, even if they have never left the
United States. And once thrown into military prison, they cannot expect
a trial by their peers or any other of the normal protections of the
Bill of Rights. . . . This grants the president enormous power over
citizens and legal residents. They can be designated as enemy
combatants if they have contributed money to a Middle Eastern charity,
and they can be held indefinitely in a military prison. . . . What is
worse, if the federal courts support the president's initial detention
decision, ordinary Americans would be required to defend themselves
before a military tribunal without the constitutional guarantees
provided in criminal trials.''
And, as Professor Akerman notes: ``We are not dealing with
hypothetical abuses. The president has already subjected a citizen to
military confinement. Consider the case of Jose Padilla. A few months
after 9/11, he was seized by the Bush administration as an ``enemy
combatant'' upon his arrival at Chicago's O'Hare International Airport.
He was wearing civilian clothes and had no weapons. Despite his
American citizenship, he was held for more than three years in a
military brig, without any chance to challenge his detention before a
military or civilian tribunal. After a federal appellate court upheld
the president's extraordinary action, the Supreme Court refused to hear
the case, handing the administration's lawyers a terrible precedent. .
. .
``But the bill also reinforces the presidential claims, made in the
Padilla case, that the commander in chief has the right to designate a
U.S. citizen on American soil as an enemy combatant and subject him to
military justice. Congress is poised to authorize this presidential
overreaching. Under existing constitutional doctrine, this show of
explicit congressional support would be a key factor that the Supreme
Court would consider in assessing the limits of presidential
authority.''
I do not have the legal expertise to say that Professor Akerman is
completely right in this analysis. But I cannot in good conscience vote
for this bill on the mere hope that he is wrong.
And, as I said when the House first considered this bill, it is clear
that several of its provisions raise enough legal questions that
military lawyers say there is a good chance the Supreme Court will rule
it unconstitutional.
They may or may not be right about that, but their views deserve to
be taken seriously--not only because we in Congress have sworn to
uphold the Constitution but also because if our goal truly is to avoid
unnecessary delays in bringing terrorists to justice, we need to take
care to craft legislation that can and will operate soon, not only
after prolonged legal challenges.
Finally, I remain concerned that the bill gives the president the
authority to ``interpret the meaning and application'' of U.S.
obligations under the Geneva Conventions. Instead of clearly banning
abuse and torture, the bill leaves in question whether or not we are
authorizing the Executive Branch to carry out some of the very things
the Geneva Conventions seek to ban.
I cannot forget or discount the words of RADM Bruce MacDonald, the
Navy's Judge Advocate General, who told the Armed Services Committee
``I go back to the reciprocity issue that we raised earlier, that I
would be very concerned about other nations looking in on the United
States and making a determination that, if it's good enough for the
United States, it's good enough for us, and perhaps doing a lot of
damage and harm internationally if one of our service men or women were
taken and held as a detainee.''
I share that concern, and could not in good conscience support
legislation that could put our men and women in uniform at risk.
Mr. Speaker, as I said earlier, establishing a system of military
tribunals to bring to trial some of the worst terrorists in the world
shouldn't be a partisan matter. It also should not be handled in a
rush, without adequate care to get it right. Unfortunately, that has
been the process used to develop this legislation and the result is a
measure that I think has too many flaws to deserve enactment as it
stands.
So, as I said earlier, I cannot support it.
[From the Los Angeles Times, Sept. 28, 2006]
The White House Warden
(By Bruce Ackerman)
Buried in the complex Senate compromise on detainee
treatment is a real shocker, reaching far beyond the legal
struggles about foreign terrorist suspects in the Guantanamo
Bay fortress. The compromise legislation, which is racing
toward the White House, authorizes the president to seize
American citizens as enemy combatants, even if they have
never left the United States. And once thrown into military
prison, they cannot expect a trial by their peers or any
other of the normal protections of the Bill of Rights.
This dangerous compromise not only authorizes the president
to seize and hold terrorists who have fought against our
troops ``during an armed conflict,'' it also allows him to
seize anybody who has ``purposefully and materially supported
hostilities against the United States.'' This grants the
president enormous power over citizens and legal
[[Page H7951]]
residents. They can be designated as enemy combatants if they
have contributed money to a Middle Eastern charity, and they
can be held indefinitely in a military prison.
Not to worry, say the bill's defenders. The president can't
detain somebody who has given money innocently, just those
who contributed to terrorists on purpose.
But other provisions of the bill call even this limitation
into question. What is worse, if the federal courts support
the president's initial detention decision, ordinary
Americans would be required to defend themselves before a
military tribunal without the constitutional guarantees
provided in criminal trials.
Legal residents who aren't citizens are treated even more
harshly. The bill entirely cuts off their access to federal
habeas corpus, leaving them at the mercy of the president's
suspicions.
We are not dealing with hypothetical abuses. The president
has already subjected a citizen to military confinement.
Consider the case of Jose Padilla. A few months after 9/11,
he was seized by the Bush administration as an ``enemy
combatant'' upon his arrival at Chicago's O'Hare
International Airport. He was wearing civilian clothes and
had no weapons. Despite his American citizenship, he was held
for more than three years in a military brig, without any
chance to challenge his detention before a military or
civilian tribunal. After a federal appellate court upheld the
president's extraordinary action, the Supreme Court refused
to hear the case, handing the administration's lawyers a
terrible precedent.
The new bill, if passed, would further entrench
presidential power. At the very least, it would encourage the
Supreme Court to draw an invidious distinction between
citizens and legal residents. There are tens of millions of
legal immigrants living among us, and the bill encourages the
justices to uphold mass detentions without the semblance of
judicial review.
But the bill also reinforces the presidential claims, made
in the Padilla case, that the commander in chief has the
right to designate a U.S. citizen on American soil as an
enemy combatant and subject him to military justice. Congress
is poised to authorize this presidential overreaching. Under
existing constitutional doctrine, this show of explicit
congressional support would be a key factor that the Supreme
Court would consider in assessing the limits of presidential
authority.
This is no time to play politics with our fundamental
freedoms. Even without this massive congressional expansion
of the class of enemy combatants, it is by no means clear
that the present Supreme Court will protect the Bill of
Rights. The Korematsu case--upholding the military detention
of tens of thousands of Japanese Americans during World War
II--has never been explicitly overruled. It will be tough for
the high court to condemn this notorious decision, especially
if passions are inflamed by another terrorist incident. But
congressional support of presidential power will make it much
easier to extend the Korematsu decision to future mass
seizures.
Though it may not feel that way, we are living at a moment
of relative calm. It would be tragic if the Republican
leadership rammed through an election-year measure that would
haunt all of us on the morning after the next terrorist
attack.
Mrs. CHRISTENSEN. Mr. Speaker, I rise in opposition to S. 3930, the
Military Commission Act of 2006 because it is too broad, overly
inclusive and potentially unconstitutional. While I also vividly
remember the horrors of the 9/11 terrorist attacks, I believe that
Congress should carefully and constitutionally craft a bill which
effectively punishes all terrorists and potential terrorists while at
the same time maintaining the safety and security of our citizens from
future terrorist attacks.
The definition of an ``unlawful combatant'' in Section 948(a.) of
this bill is indicative of its over-inclusiveness. It creates legal
loopholes and in my view, leaves even U.S. Citizens vulnerable to being
classified as unlawful combatants. This definition does not exclude nor
does it seek to exclude U.S. Citizens from being indefinitely detained.
The President or one of his designees can simply determine that a
fellow U.S. Citizen is an ``unlawful enemy combatant'' and this would
suffice as sufficient evidence to detain this citizen indefinitely
without any access to his family, an attorney or any form of judicial
review.
Furthermore, the term ``purposefully and materially supported
hostilities'' is overly broad and would lead to many innocent acts
being transformed into terrorist activities.
In an article, Aziz Huq astutely demonstrates the broadness of the
term by showing how a fictional character that owns a bodega and
allowed Lebanese immigrants to use its services to send money to ``West
Beqaa'', an area within the Hezbollah controlled area of Lebanon
protectorate is found to have ``purposefully and materially supported
hostilities. This scenario is not very far-fetched, this piece of
legislation has the potential to impact the very foundation of civil
liberties and fundamental freedoms on which this country is built. It
will impact the American Citizen's freedom of speech, freedom of
association and the list could go on.
The bill also further undermines U.S. credibility in the eyes of the
international community by granting the President the authority to
interpret Art. III of the Geneva Convention an international treaty to
which the U.S. is a signatory. This language sets a bad precedence in
the international community and only frustrates the goals of
established international laws, norms and customs.
If the U.S. President is allowed to reinterpret and apply an
international treaty, what would stop other nations from doing the
same? Additionally, as noted in his letter to Senator McCain, former
U.S. Secretary of State Colin Powell, posited that allowing the
President to interpret the Geneva Convention would expose U.S. soldiers
to more dangers. Colin Powell emphatically opposed this provision.
S. 3930 also violates separation of powers and the constitutional
protection this provides, by stripping the federal court of its habeas
review. The independence of the judiciary is one of the fundamental
principles on which this democracy is built. Under this bill, the
normal appeals process would not be available to the detained
``unlawful enemy combatant.'' Instead the detainee who wishes to appeal
an adverse decision has to appeal to a newly established ``Court of
Military Commission Review''.
Terrorists must be brought to justice and we must act accordingly to
secure our country and our citizens. However, these same goals can be
achieved in a constitutional manner. I urge my colleagues to oppose
this unworthy bill.
Mr. MICHAUD. Mr. Speaker, the final language for the bill was brought
to the floor quickly and without thorough review by the House. I
believe that it is important to have a system to try accused terrorists
for their war crimes in a quick and fair way. In my original review of
the bill, I believed that it took steps to protect fundamental human
rights, prevent torture and provide for a fair legal process.
As I have heard from more and more legal experts and from my
constituents, it is clear that this bill does not create a system that
meets our high American standards for a fair trial and human rights.
Make no mistake; I believe that convicted terrorists must be punished
for their war crimes. But it must be done in such a way that the
American people are confident that our values are upheld. I do not
believe that this bill makes this clear to the American people or to
the international community that looks to us as a place of human rights
and fairness.
Some people may question me for changing my vote. I believe that
elected officials must have the strength to recognize new information
and to take it into account to make the right decision. I wish
President Bush would do the same thing with our policies in Iraq.
Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time
The SPEAKER pro tempore. All time for debate has expired.
Pursuant to House Resolution 1054, the Senate bill is considered read
and the previous question is ordered.
The question is on the third reading of the Senate bill.
The Senate bill was ordered to be read a third time, and was read the
third time.
The SPEAKER pro tempore. The question is on the passage of the Senate
bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
____________________