I figured it would be useful to put the text of this steaming pile of legislation on the table and let everyone read it for themselves....
See below the fold..
I think we NEED to have our resident lawyers weigh in on the exact language here.
THe problem I can see, at this point, is the way this bill provides certain proper protections...and then puts them at the discretion of the executive branch.
`Sec. 948c. Persons subject to military commissions
`Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States is subject to trial by military commission as set forth in 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, sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of Military Justice), 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) Punishments- A miliary commission under this chapter may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter, chapter 47 of this title, or the law of war.
`SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS
`Sec.
`948h. Who may convene military commissions.
`948i. Who may serve on military commissions.
`948j. Military judge of a military commission.
`948k. Detail of trial counsel and defense counsel.
`948l. Detail or employment of reporters and interpreters.
`948m. Number of members; excuse of members; absent and additional members.
`Sec. 948h. Who may convene military commissions
`Military commissions under this chapter may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose.
`Sec. 948i. Who may serve on military commissions
`(a) In General- Any commissioned officer of the armed forces on active duty is eligible to serve on a military commission under this chapter, including commissioned officers of the reserve components of the armed forces on active duty, commissioned officers of the National Guard on active duty in Federal service, or retired commissioned officers recalled to active duty.
`(b) Detail of Members- When convening a military commission under this chapter, the convening authority shall detail as members thereof such members of the armed forces eligible under subsection (a) who, 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 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) Eligibility- A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court, or a member of the bar of the highest court of a State, and who is certified to be qualified for duty under section 826 of this title (article 26 of the Uniform Code of Military Justice) as a military judge 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 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.
`(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.
`(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 military 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 is--
`(A) a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; and
`(B) certified as competent to perform duties as trial counsel before general courts-martial by the Judge Advocate General of the armed force of which he is a member; or
`(2) a civilian who is--
`(A) a member of the bar of a Federal court or of the highest court of a State; and
`(B) otherwise qualified to practice before the military commission pursuant to regulations prescribed by the Secretary of Defense.
`(c) Military Defense Counsel- Subject to subsection (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 military commission qualified court reporters, who shall prepare a verbatim record of the proceedings of and testimony taken before the military commission.
`(b) Interpreters- Under such regulations as the Secretary of Defense may prescribe, the convening authority of a military commission under this chapter may detail to or employ for the military commission interpreters who shall interpret for the military commission, and, as necessary, for trial counsel and defense counsel for the military commission, and for the accused.
`(c) Transcript; Record- The transcript of a military commission under this chapter shall be under the control of the convening authority of the military commission, who shall also be responsible for preparing the record of the proceedings of the military commission.
`Sec. 948m. Number of members; excuse of members; absent and additional members
`(a) Number of Members- (1) 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; statements obtained by torture or other methods of coercion.
`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 his knowledge and belief.
`(b) Notice to Accused- Upon the swearing of the charges and specifications in accordance with subsection (a), the accused shall be informed of the charges and specifications against him as soon as practicable.
`Sec. 948r. Compulsory self-incrimination prohibited; statements obtained by torture or other methods of coercion
`(a) In General- No person shall be required to testify against himself at a proceeding of a military commission under this chapter.
`(b) 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 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 Detainee 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 it 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 Detainee 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 it 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 violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the United States Constitution.
`Sec. 948s. Service of charges
`The trial counsel assigned to a case before a military commission under this chapter shall cause to be served upon the accused and military defense counsel a copy of the charges upon which trial is to be had in English and, if appropriate, in another language that the accused understands, sufficiently in advance of trial to prepare a defense.
`SUBCHAPTER IV--TRIAL PROCEDURE
`Sec.
`949a. Rules.
`949b. Unlawfully influencing action of military commission.
`949c. Duties of trial counsel and defense counsel.
`949d. Session
s.
`949e. Continuances.
`949f. Challenges.
`949g. Oaths.
`949h. Former jeopardy.
`949i. Pleas of the accused.
`949j. Opportunity to obtain witnesses and other evidence.
`949k. Defense of lack of mental responsibility.
`949l. Voting and rulings.
`949m. Number of votes required.
`949n. Military commission to announce action.
`949o. Record of trial.
`Sec. 949a. Rules
`(a) Procedures and Rules of Evidence- Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be prescribed by the Secretary of Defense. Such procedures may not be contrary to or inconsistent with this chapter. Except as otherwise provided in this chapter or chapter 47 of this title, the procedures and rules of evidence applicable in trials by general courts-martial of the United States shall apply in trials by military commission under this chapter.
`(b) Exceptions- (1) The Secretary of Defense, in consultation with the Attorney General, may make such exceptions in the applicability in trials by military commission under this chapter from the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need.
`(2) Notwithstanding any exceptions authorized by paragraph (1), the procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights:
`(A) To examine and respond to all evidence considered by the military commission on the issue of guilt or innocence and for sentencing.
`(B) To be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d of this title.
`(C) To the assistance of counsel.
`(D) To self-representation, if the accused knowingly and competently waives the assistance of counsel, subject to the provisions of paragraph (4).
`(E) To the suppression of evidence that is not reliable or probative.
`(F) To the suppression of evidence the probative value of which is substantially outweighed by--
`(i) the danger of unfair prejudice, confusion of the issues, or misleading the members; or
`(ii) considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
`(3) In making exceptions in the applicability in trials by military commission under this chapter from the procedures and rules otherwise applicable in general courts-martial, the Secretary of Defense may provide the following:
`(A) Evidence seized outside the United States shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or authorization.
`(B) A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title.
`(C) Evidence shall be admitted as authentic so long as--
`(i) the military judge of the military commission determines that there is sufficient evidence that the evidence is what it is claimed to be; and
`(ii) the military judge instructs the members that they may consider any issue as to authentication or identification of evidence in determining the weight, if any, to be given to the evidence.
`(D)(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 this clause is subject to the requirements and limitations applicable to the disclosure of classified information in section 949j(b) 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.
`(4)(A) The accused in a military commission under this chapter who exercises the right to self-representation under paragraph (2)(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 (2)(D).
Sec. 949s. Cruel or unusual punishments prohibited
`Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a military commission under this chapter or inflicted under this chapter upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited under this chapter.
`Sec. 949t. Maximum limits
`The punishment which a military commission under this chapter may direct for an offense may not exceed such limits as the President or Secretary of Defense may prescribe for that offense.
`Sec. 949u. Execution of confinement
`(a) In General- Under such regulations as the Secretary of Defense may prescribe, a sentence of confinement adjudged by a military commission under this chapter may be carried into execution by confinement--
`(1) in any place of confinement under the control of any of the armed forces; or
`(2) in any penal or correctional institution under the control of the United States or its allies, or which the United States may be allowed to use.
`(b) Treatment During Confinement by Other Than the Armed Forces- Persons confined under subsection (a)(2) in a penal or correctional institution not under the control of an armed force are subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State, District of Columbia, or place in which the institution is situated.
`SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY COMMISSIONS
`Sec.
`950a. Error of law; lesser included offense.
`950b. Review by the convening authority.
`950c. Waiver or withdrawal of appeal.
`950d. Appeal by the United States.
`950e. Rehearings.
`950f. Review by Court of Military Commission Review.
`950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court.
`950h. Appellate counsel
`950i. Execution of sentence; suspension of sentence.
`950j. Finality of 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 accused has been give an authenticated record of trial under section 949o(c) of this title.
`(B) If the accused shows that additional time is required for the accused to make a submittal under paragraph (1), the convening authority may, for good cause, extend the applicable period under subparagraph (A) for not more than an additional 20 days.
`(3) The accused may waive 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) 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, only--
`(A) dismiss any charge or specification by setting aside a finding of guilty thereto; or
`(B) change a finding of guilty to a charge to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge.
`(3)(A) The convening authority shall take action on the sentence of a military commission under this chapter.
`(B) Subject to regulations prescribed by the Secretary of Defense, action under this paragraph may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier.
`(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.
`(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. Waiver or withdrawal of appeal
`(a) Waiver of Right of Review- (1) An accused may file with the convening authority a statement expressly waiving the right of the accused to appellate review by the Court of Military Commission Review under section 950f of this title of the final decision of the military commission under this chapter.
`(2) A waiver under paragraph (1) shall be signed by both the accused and a defense counsel.
`(3) A waiver under paragraph (1) must be filed, if at all, within 10 days after notice of the action is served on the accused or on defense counsel under section 950b(c)(4) of this title. The convening authority, for good cause, may extend the period for such filing by not more than 30 days.
`(b) 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.
`(c) 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 under section 950f of this title 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 (c), (d), or (e) of section 949d of this title.
`(2) The United States may not appeal under paragraph (1) an order or ruling that is, or amounts to, a finding of not guilty by the military commission with respect to a charge or specification.
`(b) Notice of Appeal- The United States shall take an appeal of an order or ruling under subsection (a) by filing a notice of appeal with the military judge within five days after the date of the order or ruling.
`(c) Appeal- An appeal under this section shall be forwarded, by means specified in regulations prescribed the Secretary of Defense, directly to the Court of Military Commission Review. In ruling on an appeal under this section, the Court may act only with respect to matters of law.
`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 serve as an appellate military judge in any case in which that person acted as a military judge, counsel, or reviewing official.
`(c) Right of Appeal- The accused may appeal from a final decision of a military commission, and the United States may appeal as provided in section 950d of this title, to the Court of Military Commission Review in accordance with procedures prescribed under regulations of the Secretary.
`(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) Review by United States Court of Appeals for the District of Columbia Circuit- (1) Subject to the provisions of this subsection, the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the final validity of any judgment rendered by a military commission under this chapter.
`(2) The United States Court of Appeals for the District of Columbia Circuit may not determine the final validity of a judgment of a military commission under this subsection until all other appeals from the judgment under this chapter have been waived or exhausted.
`(3)(A) An accused may seek a determination by the United States Court of Appeals for the District of Columbia Circuit of the final validity of the judgment of the military commission under this subsection only upon petition to the Court for such determination.
`(B) A petition on a judgment under subparagraph (A) shall be filed by the accused in the Court not later than 20 days after the date on which--
`(i) written notice of the final decision of the military commission is served on the accused or defense counsel; or
`(ii) 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.
`(C) The accused may not file a petition under subparagraph (A) if the accused has waived the right to appellate review under section 950c(a) of this title.
`(4) The determination by the United States Court of Appeals for the District of Columbia Circuit of the final validity of a judgment of a military commission under this subsection shall be governed by the provisions of section 1005(e)(3) of the Detainee Treatment Act of 2005 (42 U.S.C. 801 note).
`(b) Review by Supreme Court- The Supreme Court of the United States may review by writ of certiorari pursuant to section 1257 of title 28 the final judgment of the United States Court of Appeals for the District of Columbia Circuit in a determination under subsection (a).
`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 of counsel for appearing before military commissions under this chapter.
`(b) Representation of United States- Appellate counsel may represent the United States in any appeal or review proceeding under this chapter. Appellate Government counsel may represent the United States before the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court in cases arising under this chapter when requested to do so by the Attorney General.
`(c) Representation of Accused- The accused shall be represented before the United States Court of Appeals for the District of Columbia Circuit or the Supreme Court by military appellate counsel, or by civilian counsel if retained by him.
`Sec. 950i. Execution of sentence; suspension of sentence
`(a) Execution of Sentence of Death Only Upon Approval by the President- If the sentence of a military commission under this chapter extends to death, that part of the sentence providing for death may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit.
`(b) Execution of Sentence of Death Only Upon Final Judgment of Legality of Proceedings- (1) If the sentence of a military commission under this chapter extends to death, the sentence may not be executed until there is a final judgement as to the legality of the proceedings (and with respect to death, approval under subsection (a)).
`(2) A judgement as to legality of proceedings is final for purposes of paragraph (1) when--
`(A) the time for the accused to file a petition for review by the United States 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 the 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 (A) a petition for a writ of certiorari is not timely filed, (B) such a petition is denied by the Supreme Court, or (C) review is otherwise completed in accordance with the judgment of the Supreme Court.
`(c) Suspension of Sentence- The Secretary of the Defense, or the convening authority acting on the case (if other than the Secretary), may suspend the execution of any sentence or part thereof in the case, except a sentence of death.
`Sec. 950j. Finality of 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 enactment of this chapter, 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.
`950aa. Definitions; construction of certain offenses; common circumstances.
`950bb. Statement of substantive offenses.
`950cc. Principals.
`950dd. Accessory after the fact.
`950ee. Conviction of lesser offenses.
`950ff. Attempts.
`950gg. Solicitation.
`950hh. Murder of protected persons.
`950ii. Attacking civilians.
`950jj. Attacking civilian objects.
`950kk. Attacking protected property.
`950ll. Pillaging.
`950mm. Denying quarter.
`950nn. Taking hostages.
`950oo. Employing poison or similar weapons.
`950pp. Using protected persons as a shield.
`950qq. Using protected property as a shield.
`950rr. Torture.
`950ss. Cruel or inhuman treatment.
`950tt. Intentionally causing serious bodily injury.
`950uu. Mutilating or maiming.
`950vv. Murder in violation of the law of war.
`950ww. Destruction of property in violation of the law of war.
`950xx. Using treachery or perfidy.
`950yy. Improperly using a flag of truce.
`950zz. Improperly using a distinctive emblem.
`950aaa. Intentionally mistreating a dead body.
`950bbb. Rape.
`950ccc. Hijacking or hazarding a vessel or aircraft.
`950ddd. Terrorism.
`950eee. Providing material support for terrorism.
`950fff. Wrongfully aiding the enemy.
`950ggg. Spying.
`950hhh. Conspiracy.
`950iii. Contempt.
`950jjj. Perjury and obstruction of justice.
`Sec. 950aa. Definitions; construction of certain offenses; common circumstances
`(a) Definitions- In this subchapter:
`(1) The term `military objective' means combatants and those objects during an armed conflict which, by their nature, location, purpose, or use, effectively contribute to the war-fighting or war-sustaining capability of an opposing force and whose total or partial destruction, capture, or neutralization would constitute a definite military advantage to the attacker under the circumstances at the time of an attack.
`(2) The term `protected person' means any person entitled to protection under one or more of the Geneva Conventions, including civilians not taking an active part in hostilities, military personnel placed out of combat by sickness, wounds, or detention, and military medical or religious personnel.
`(3) The term `protected property' means any property specifically protected by the law of war, including buildings dedicated to religion, education, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, but only if and to the extent such property is not being used for military purposes or is not otherwise a military objective. The term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective.
`(b) Construction of Certain Offenses- The intent required for offenses under sections 950hh, 950ii, 950jj, 950kk, and 950ss of this title precludes their applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack.
`(c) Common Circumstances- An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with armed conflict.
`Sec. 950bb. Statement of substantive offenses
`(a) Purpose- The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.
`(b) Effect- Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter.
`Sec. 950cc. Principals
`Any person is punishable as a principle under this chapter who--
`(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission;
`(2) causes an act to be done which if directly performed by him would be punishable by this chapter; or
`(3) is a superior commander who, with regard to acts punishable under this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
`Sec. 950dd. 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. 950ee. Conviction of lesser offenses
`An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an attempt to commit either the offense charged or an offense necessarily included therein.
`Sec. 950ff. 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. 950gg. 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. 950hh. 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.
`Sec. 950ii. 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.
`Sec. 950jj. 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.
`Sec. 950kk. 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.
`Sec. 950ll. 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.
`Sec. 950mm. 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.
`Sec. 950nn. 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.
`Sec. 950oo. 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.
`Sec. 950pp. 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.
`Sec. 950qq. 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.
`Sec. 950rr. 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.
`Sec. 950ss. Cruel or inhuman treatment
`(a) Offense- Any person subject to this chapter 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 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 section:
`(1) The term `severe mental pain or suffering' has the meaning given that term in section 2340(2) of title 18.
`(2) The term `serious physical pain or suffering' means bodily injury that involves--
`(A) a substantial risk of death;
`(B) extreme physical pain;
`(C) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
`(D) significant loss or impairment of the function of a bodily member, organ, or mental faculty.
`(3) 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--
`(A) the term `serious' shall replace the term `severe' where it appears; and
`(B) as to conduct occurring after the date of the enactment of the Military Commission 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.
`Sec. 950tt. 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 section, the term `serious bodily injury' means bodily injury which involves--
`(1) a substantial risk of death;
`(2) extreme physical pain;
`(3) protracted and obvious disfigurement; or
`(4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
`Sec. 950uu. 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.
`Sec. 950vv. 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.
`Sec. 950ww. 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.
`Sec. 950xx. 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.
`Sec. 950yy. 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.
`Sec. 950zz. 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.
`Sec. 950aaa. Intentionally mistreating a dead body
`Any person subject to this chapter who intentionally mistreats the body of a dead person, without justification by legitimate military necessary, shall be punished as a military commission under this chapter may direct.
`Sec. 950bbb. 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.
`Sec. 950ccc. 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.
`Sec. 950ddd. 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.