Summary
S. 3930,
the Military Commissions Act of 2006, would authorize the President to
establish military commissions for the trial of alien unlawful enemy
combatants. The bill would authorize the Secretary of Defense to convene
military commissions and, in concert with the Attorney General to establish the
rules and procedures governing military commissions. S. 3930 also revises the War Crimes Act and would amend the Habeas
Corpus provisions of the United States Code.
Major Provisions
SUBCHAPTER 1- General Provisions
Authorization for the establishment of military
commissions. S. 3930
would establish the authority of the President to establish military
commissions for the trial of alien unlawful enemy combatants engaged in
hostilities against the United
States for violations of the law of war, as
provided in chapter 47 of title 10, United States Code. It would
recognize the authority of the military commission to impose an appropriate sentence upon any person
found guilty and would authorize the Secretary of Defense to carry out a
sentence of punishment imposed by a military commission. S. 3930 would require the Secretary of
Defense to submit an annual report to Congress on any trials conducted by
military commissions.
Unlawful enemy combatant.
S. 3930 would define an unlawful
enemy combatant as: 1) “a person who has engaged in hostilities against the
U.S. or who has purposefully and materially supported hostilities against the
U.S. 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 2) “a
person who, before, on, or after the date of the enactment of the Military
Commissions Act of 2006 [December 30, 2005] 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.”
In effect, S.
3930 would presume that any “person who is part of the Taliban, al Qaeda,
or associated forces” is an unlawful enemy combatant – regardless of whether
that person meets the test of engaging in hostilities against the United States
or purposefully and materially supporting such hostilities. The bill
would also allow the use of a Combatant Status Review Tribunal (CSRT)
determination for the purposes of classifying an individual as unlawful enemy
combatant, even though CSRT determinations may be based on evidence that would
be excluded as unreliable by a military commission.
Construction of provisions.
S. 3930 would establish that the
procedures for trial by general courts martial under chapter 47 of this title
(the Uniform Code of Military Justice) are not binding on military
commissions. The legislation requires the Secretary of Defense to apply
these rules only when he considers it practicable to do so.
Rulings and Precedents.
The bill would prohibit the rulings of military commissions from being
introduced, considered or used as a precedent in any court-martial hearing
convened under chapter 47.
Common Article 3. The bill would
establish that military commissions will provide all the necessary “judicial
guarantees which are recognized as indispensable by civilized peoples,” in
accordance with Article 3 of the Geneva Conventions.
Geneva Conventions. The bill would prohibit an alien enemy
unlawful combatant from invoking the Geneva Conventions as a source of rights
during his trial by a military commission.
Jurisdiction. The bill would provide military commissions
the jurisdiction to try any offense made punishable by this chapter (articles
904 and 906 of the Uniform Code of Military Justice) or the law of war by an
alien unlawful enemy before, on, or after September 11, 2001.
SUBCHAPTER II – Composition of Military Commissions
Convening military commissions.
S. 3930 would authorize the
Secretary of Defense, or his designee, to convene military commissions.
Members of military commissions.
S. 3930 would authorize any
commissioned officer of the armed forces on active duty (including commissioned
officers of the National Guard and reserve components called to active duty as
well as retired commissioned officers recalled to active duty to be eligible to
serve on a military commission). The bill would direct the convening
authority to determine the members best qualified to
serve by reason of age, education, training, experience, and judicial
temperament. It would disqualify any officer who is the accuser or a
witness for the prosecution as well as any member who has acted as an
investigator or counsel on the case. S.
3930 would require that a military commission must have at least five
members.
Military judge. The bill would
instruct the Secretary of Defense to detail a military judge to preside over a
military commission. It would define those eligible to serve as follows:
a commissioned officer of the armed forces who is a member of the bar of a
federal court or the highest court of a state, and who is certified to be
qualified under Article 26 of the Uniform Code of Justice as a military judge.
It would disqualify any officer who is the accuser or a witness for the
prosecution as well as any member who has acted as an investigator or counsel
on the case. The bill would prohibit the judge from consulting with
commission members or counsel outside the presence of the accused. The
judge would also be ineligible to vote with commission members.
Trial Counsel and Defense Counsel. S. 3930
would call on the Secretary of Defense to prescribe regulations for detailing
members of the trial and defense counsel. The trial counsel would have to
be either 1) a judge advocate who is a graduate of an accredited law school or
is a member of the bar of a federal court or highest state court and is
certified as competent to serve by the Judge Advocate General; or 2) a civilian
who is a member of the bar of a federal court or highest state court or
otherwise qualified to serve according to the Secretary’s regulations.
The defense counsel for a military commission would have to be a judge advocate
as defined above.
Court reporters and interpreters.
The bill would allow, pursuant to rules prescribed by the Secretary of Defense,
the convening authority of a military commission to detail to or employ
qualified interpreters and/or court reporters for military commissions.
The transcript of the court record shall remain under the control of the
convening authority of the commission.
SUBCHAPTER III – Pre-Trial Procedure
Charges and specifications.
The bill would require that charges be filed under oath before a commissioned
officer of the armed forces. After the swearing of the charges and
specifications, the bill would require that the accused be informed of these
charges as soon as practicable. S.
3930 would also require that a copy of the charges be provided to the
accused and the military defense counsel with sufficient advance time to
prepare a defense.
Compulsory self-incrimination.
S. 3930 would prohibit a person from
being required to testify against himself.
Statements obtained before the enactment of the Detainee Treatment Act of 2005. Statements obtained before December 30, 2005, in
which the degree of coercion is in question, would only be admitted 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 of evidence.
Statements obtained after the enactment of the Detainee Treatment Act of 2005. Statements obtained on or after December 30, 2005
in which the degree of coercion is in question, would be admitted only if the
military judge finds that, in addition to the terms of 1) and 2) as stated
above, 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 Fourteenth Amendments to the U.S. Constitution.
In effect, S.
3930 would permit the use of statements obtained by interrogation methods
that violate the cruel, unusual, or inhumane treatment protections under the U.S.
Constitution, if those statements were obtained prior to December 30, 2005.
SUBCHAPTER IV – Trial Procedure
Procedures
and rules of evidence. S. 3930 would authorize the Secretary
of Defense or his designee, in consultation with the Attorney General, to
prescribe the procedures and rules of evidence for military commissions.
The bill would require the Secretary to apply the general courts-martial
procedures and rules to military commissions only when he considers these to be
practicable.
The bill’s approach on the procedures for rules and
evidence is inconsistent with the Supreme Court’s ruling in the Hamdan case, which held that the procedures and rules
applicable in trials by general courts martial would apply in trials by
military commissions, allowing certain exceptions determined by the Secretary
of Defense to be necessary to address the unique circumstances of military and
intelligence operations.
While allowing the Secretary
to make exceptions to general courts-martial procedures, the bill would require
that the procedures and rules of evidence in military commission trials include
the following provisions:
- the accused would be permitted to present evidence
in his defense, cross examine witnesses who testify against him, and
respond to evidence submitted against him;
- the accused would be present at all sessions of
the military commission (except in cases outlined in the 949d, the
“sessions” section below);
- the accused would have the right to the
assistance of counsel; and
- the accused would have the right to
self-representation.
The bill would provide the accused with the right to
“respond to evidence admitted against him;” it would not provide him with the
right to see all of the evidence considered by the military commission for
determining guilt or innocence in sentencing.
S. 3930
would authorize the Secretary of Defense to prescribe the following provisions
in establishing the rules and procedures of evidence:
- evidence would be admissible if the military
judge determines that the evidence would have probative value;
- evidence would not be excluded from trial on the
grounds that it was not obtained with a search warrant; and
- hearsay evidence, which is not otherwise
admissible in general courts martial would be admitted in military
commission so long as the adverse party is informed in advance that the
evidence will be offered in sufficient time to prepare a response.
Hearsay evidence would not be admitted if the party opposing the
submission demonstrates that the evidence is unreliable or lacks probative
value.
The bill effectively would authorize the use of
evidence that is seized without a warrant both outside the United States and
within the United States.
Congressional notification.
S. 3930 would require the Secretary
of Defense to inform Congressional committees of changes in procedures governing
military commissions, no later than 60 days before the date on which any
proposed modifications would go into effect.
Unlawfully influencing action of military commission.
S. 3930 would prohibit the authority
convening a military commission from censuring, admonishing, or reprimanding
the members, counsel, or judge of the commission with respect to its findings
or actions. It would prohibit anyone from attempting to coerce or
influence the actions of a military commission. The bill also states that
the performance and actions of any member of a military commission would not be
used to evaluate that officer’s effectiveness, fitness, or efficiency.
Trial counsel and defense counsel. The bill would instruct the trial counsel to
prosecute in the name of the United
States. It would require that the
accused be represented by military counsel or by civilian counsel. S. 3930 would require that civilian
counsel have clearance to access classified evidence at the level of secret or
higher and instructs military counsel to serve as associate counsel to civilian
defense counsel.
Sessions without the presence of members.
S. 3930 would authorize the military
judge to call the commission into session without the presence of members in a
number of circumstances, and specifies that only members may be present during
a deliberation or vote. The bill would authorize the military judge to
close to the public all or portions of the proceedings of the military
commission only upon making a specific finding that closure is required to 1)
protect information that could jeopardize national security, or 2) ensure the
physical safety of individuals. The bill would authorize the military
judge to exclude the accused from any portion of proceedings to ensure the
physical safety of individuals and to prevent disruptions.
National security privilege.
S. 3930 would require that
classified information be protected if disclosure would be detrimental to
national security.
Disclosure of classified information.
The bill would authorize the trial counsel to object to any question, line or
inquiry or motion to commit evidence that would require the disclosure of
classified information and instructs the military judge to take action suitable
to safeguard the information. The bill would identify alternatives to
disclosure for classified information and also would authorize the protection
of sources, methods, or activities for otherwise admissible evidence if these
sources, methods, or activities are classified and the evidence is determined
to be reliable.
Additional regulations.
S. 3930 would authorize the
Secretary of Defense to prescribe additional regulations, consistent with this
subsection, for the use and protection of classified information so long as the
Secretary informs congressional committees of any modifications not later 60
days before the changes would take effect.
Conviction. The bill would authorize a conviction only in
the instances only if the accused enters a guilty plea or with the concurrence
of two-thirds of the members of the commission present at the time the vote is
taken.
Record. S. 3930
would require that a complete record of the proceedings and testimony be
prepared and authenticated by the military judge. The record may contain
a classified annex.
SUBCHAPTER V – Sentences
The bill would prohibit
cruel and unusual punishments and would prohibit any punishment in excess of
the limits prescribed by the President or Secretary of Defense for that
offense. It would authorize the Secretary of Defense to prescribe a
sentence of confinement in a place of confinement under the control of any of
the armed forces or any penal or correctional institutions under control of the
United States
and its allies.
SUBCHAPTER VI – Post-Trial Procedure and Review of
Military Commissions
Review by convening authority. S.
3930 would allow the accused to submit matters for consideration to the
convening authority with respect to the military commissions’ findings and
sentencing. The bill would provide the convening authority with the sole
discretion to modify the findings and sentence of a military commission to
approve, disapprove, commute, or suspend the sentence in whole or part.
However, it would prohibit the convening authority from increasing a sentence
beyond what is recommended by the military commission. S. 3930 also would authorize the
convening authority to order a revision or a rehearing.
Court of Military Commission Review. The bill would authorize the Secretary of
Defense to establish a Court of Military Commission Review to be composed of at
least three appellate military judges. The Court would have exclusive
jurisdiction to determine the validity of a final judgment of a military commission
based on the standards and procedures specified in this chapter and, when
applicable, the Constitution and laws of the United States.
Appellate review. The legislation
would require an automatic referral for appellate review by the Court of Military
Commission Review.
Appeal by the United States. S.
3930 would authorize the United
States to take an appeal to the Court of
Military Commission Review.
Execution of sentence of death.
The bill would require approval of the President to execute a death sentence
handed down by a military commission. It would authorize the President to
commute, remit, or suspend the sentence as he sees fit.
SUBCHAPTER VII – Punitive Matters
Crimes triable by military
commissions. S. 3930
would identify the following offenses as triable by
military commissions: murder of protected persons; attacking civilians;
attacking civilian objects; attacking protected property; pillaging; denying
quarter; taking hostages; employing poison or similar weapons; using protected
persons as a shield; torture; cruel and inhuman treatment; intentionally
causing bodily injury; mutilating or maiming; murder in violation of the law of
war; destruction of property in violation of the law of war; using treachery or
perfidy; improperly using a flag of truce; improperly using a distinctive
emblem; intentionally mistreating a dead body; rape; sexual assault or abuse;
hijacking or hazarding a vessel or aircraft; terrorism; providing material
support for terrorism; wrongfully aiding the enemy; and spying conspiracy.
Treaty obligations not establishing grounds for
certain claims. S. 3930
would prohibit a person from invoking the Geneva Conventions or related
protocols as a source of rights in a habeas corpus petition or other civil action
brought in a United States
court (state, territory, or federal) to which the United States, or current or former
employee/officer/armed forces member/agent, is a party.
The legislation, for the
purposes of this section, defines the “Geneva Conventions” as the: Convention
for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field (6 UST 3114); Convention for the Amelioration of the Condition of
the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea (6 UST
3217); Convention Relative to the Treatment of Prisoners of War (6 UST 3316);
and Convention Relative to the Protection of Civilian Persons in Time of War (6
UST 3516).
Revision to War Crimes Offense under federal criminal
code. S. 3930
would narrow the War Crimes Offense (18 USCS § 2441) by striking part of the
current definition of the term “war crimes” which reads:
(c) which constitutes a violation of common Article 3
of the international conventions signed at Geneva, 12 August 1949, or any protocol
to such convention to which the United States is a party and which deals with
non-international armed conflict;
It would replace that
subsection with:
(c) 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; (emphasis
added)
S. 3930 would
add subsection (d) to the War Crimes Offense to enumerate and further define
conduct that would constitute a “grave breach” of common Article 3: torture,
cruel and inhuman treatment, performing biological experiments, murder,
mutilation or maiming, intentionally causing serious bodily injury, rape,
sexual assault or abuse, and taking hostages (does not apply to wartime prisoner
exchanges).
Cruel and inhuman treatment
would include inflicting “serious physical pain or suffering,” which, for the
purposes of subsection (d), means bodily injury that involves substantial risk
of death, extreme physical pain, a serious burn or disfigurement, or
significant loss or functional impairment of a bodily member, organ, or mental
faculty. Further, “serious mental pain or suffering,” in the cruel and
inhuman treatment definition, for the purposes of subsection (d) would have the
same meaning as “severe mental pain or suffering” (defined in another section
of Title 18) save that “serious” would replace “severe” and, as to conduct that
occurs after this Act is enacted, “serious and non-transitory mental harm
(which need not be prolonged)” would replace “prolonged mental harm.”
The bill would also define
several other terms as they are defined in other parts of Title 18 of the
United States Code.
The new subsection (d) would
also specify that the standard of intent required for grave breaches,
especially murder, mutilation or maiming, or intentionally causing serious
bodily harm, precludes offenses caused by collateral damage or death, damage,
or injury incident to a lawful attack.
The bill’s changes to the War
Crimes Offense would apply retroactively to November 27, 1997, except as to the
“serious mental pain or suffering” definition within the context of Cruel and
Inhuman Treatment.
Additional prohibition on cruel, inhuman or degrading
treatment or punishment. S. 3930 would
further prohibit cruel, inhuman, or degrading treatment or punishment of
persons in the custody or under the physical control of the U.S. government, regardless of
nationality or physical location. The legislation requires the President to
take actions necessary to ensure compliance, including establishing
administrative rules and procedures.
The bill would define
“cruel, inhuman or degrading treatment or punishment” as it is prohibited in
the by the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution,
defined in the U.S. Reservations, Declarations and Understandings to the U.N.
Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment (December 10, 1984).
Implementation of treaty obligations.
S. 3930 would establish that the
grave breaches and cruel, inhuman, or degrading treatment or punishments
identified by the legislation constitute violations of common Article 3 of the
Geneva Conventions.
The legislation would
establish that the amended War Crimes Offense fully satisfies the U.S.
obligation under Article 129 of the Third Geneva Convention (the Convention
Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949
(6 UST 3316).
The measure would prohibit
US Courts from using foreign or international law as a basis for interpreting
conduct listed in the grave breaches section of the War Crimes Offense
(subsection (d)).
S. 3930 would
both recognize the President’s inherent authority under the Constitution and
authorize the President to interpret the meaning and application of the Geneva
Conventions and to establish higher standards and administration regulations
for violations of treaty obligations, including those which do not rise to the
level of grave breaches. The legislation would order the President to
publish those interpretations in the Federal Register as an Executive
Order. Any such Order would be authoritative as a matter of U.S. law, with the
exception of changes to the definition of grave breaches. The legislation
states, however, that nothing in the section pertaining to the interpretation
by the President is meant to affect the constitutional functions and
responsibilities of Congress and the judicial branch.
“Geneva Conventions” is
defined the same as in Sec. 5. Treaty Obligations Not Establishing Grounds For
Certain Claims, except that 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 is referenced as 6 UST 3217 in this section.
Habeas Corpus matters.
S. 3930 would amend the Habeas
Corpus provisions of the United States Code to strip U.S. courts of
jurisdiction to hear or consider a writ of habeas corpus (petition to seek
release from unlawful detention) by or on the behalf of an alien detained by
the U.S. who has been determined by the U.S. to have been properly detained as
an enemy combatant or is awaiting such determination.
The legislation would also
strip U.S. courts of jurisdiction to hear or consider any other action against
the U.S. or its agents relating to the detention, transfer, treatment, trial,
or conditions of confinement of an alien who is or was detained by the U.S. and
has been determined by the U.S. to be properly detained as an enemy combatant
or is awaiting such determination.
These changes would take
effect on the date of enactment and would apply to all cases, without
exception, pending on or after the date of enactment.
Revisions to Detainee Treatment Act of 2005 relating
to protection of certain United
States government personnel.
S. 3930 would amend the Detainee
Treatment Act of 2005 section that provides government personnel with legal
counsel. Currently, it reads:
(b) Counsel. The United States Government may
provide or employ counsel, and pay counsel fees, court costs, bail, and
other expenses incident to the representation of an officer, employee, member
of the Armed Forces, or other agent described in subsection (a), with respect
to any civil action or criminal prosecution arising out of practices described
in that subsection, under the same conditions, and to the same extent, to
which such services and payments are authorized under section 1037 of title 10,
United States Code. (emphasis added)
The bill would strike “may
provide” and insert “shall provide.” It would insert “or investigation”
after “criminal prosecution.” After “described in that subsection,” it
would insert, “whether before United
States courts or agencies, foreign courts or
agencies, or international courts or agencies.”
Further, the legislation
would apply the new counsel section with respect to any criminal prosecution
that:
- relates to the detention and interrogation of
aliens (“who [, according to the Detainee Treatment Act of 2005,] the
President or his designees have determined are believed to be engaged in
or associated with international terrorist activity that poses a serious,
continuing threat to the United States, its interests, or its allies, and
that were officially authorized and determined to be lawful at the time
that they were conducted”) ;
- is grounded in the amended War Crimes Offense (constitutes
a grave breach of common Article 3 section); and
- relates to actions occurring between 9/11/01 and
12/30/05.
Review of judgments of military commissions. S.
3930 would amend the Detainee Treatment Act of 2005, Judicial Review of
Detention of Enemy Combatants section, to strike the current grant of review section
which reads:
(B) Grant of review.--Review under this paragraph-- (i) with respect to a capital case or a case in which the
alien was sentenced to a term of imprisonment of 10 years or more, shall be as
of right; or (ii) with respect to any other case, shall be at the discretion of
the United States Court of Appeals for the District of Columbia Circuit.
The bill would replace it
with an unconditional, “(B) Grant of Review. Review under this paragraph
shall be as of right.”
Further the legislation
would amend the limitation on appeals section which currently reads:
(C) Limitation on appeals.--The jurisdiction of the
United States Court of Appeals for the District of Columbia Circuit under this
paragraph shall be limited to an appeal brought by or on behalf of an alien-- (i) who was, at the time of the proceedings pursuant to
the military order referred to in subparagraph (A), detained by the
Department of Defense at Guantanamo Bay, Cuba; and(ii)
for whom a final decision has been rendered pursuant to such military order. (emphasis added)
The legislation would strike
both references to “pursuant to the military order'' and insert ``by a military
commission.” It would also strike the limitation to persons detained ``at
Guantanamo Bay, Cuba.''
The legislation would also
strike the reference to a military order in the scope of review section and
replace it with a reference to a military commission.
Detention Covered By Review of Decisions of Combatant
Status Review Tribunals of Propriety of Detention. Last, S.
3930 would amend the Detainee Treatment Act of 2005 to allow the U.S. Court
of Appeals for the District of Columbia Circuit jurisdiction over appeals from
decisions made by the Combatant Status Review Tribunal with respect to aliens
who are being held by the United States,
as opposed to just the Department of Defense at Guantanamo Bay.
Legislative History
S. 3930
was introduced by Senator McConnell and others on Friday, September 22,
2006. Using the procedures under Rule XIV, the bill was placed on the
Legislative Calendar.
On Monday, September 25,
2006, Senator Frist offered a modified version of S. 3930 as an amendment (S.A.
5036) to H.R. 6061, the Secure Fence
Act of 2006, and filed a cloture motion on his amendment. On Wednesday,
September 27, 2006, an agreement was reached for the consideration of S. 3930. As a result of the
consent agreement, the cloture vote on the Frist
amendment to the Secure Fence Act was vitiated.
On Wednesday, September 27,
2006, when the Senate began consideration of S. 3930, a substitute amendment (S.A. 5085) was considered and agreed to as
original text for the purpose of further amendment. Other than any
managers’ amendment which is to be cleared by both managers and Leaders Frist and Reid, the consent agreement for amendments to S. 3930 allows for the following
amendments to remain in order:
Levin amendment – 2 hours of
debate equally divided (not agreed to, 43-54);
Rockefeller amendment – 1
hour of debate equally divided;
Kennedy amendment – 1 hour
of debate equally divided;
Byrd amendment – 1 hour of
debate equally divided; and
Specter amendment – 2 hours
of debate equally divided.
In addition to debate on
amendments, there are 3 hours of general debate time, equally divided.
Statement of
Administration Policy
As the time of publication,
no Statement of Administration Policy had been issued by the White House for S. 3930, the Military Commissions Act
of 2006 as introduced in the Senate. Barring amendments agreed to, the
administration is expected to support the bill.
Expected Amendments
The Specter amendment would
strike the habeas corpus provisions. The Byrd-Obama amendment would establish a 5 year sunset of President's
authority to convene new military commissions. The Kennedy-Feinstein amendment would require that the Department of
State notify other signatories to the Geneva Conventions that the United States
will consider designated practices violations of Common Article 3 when
committed against Americans. The list of practices, which is not
exhaustive, consists of practices specifically prohibited by the Army Field
Manual. The Rockefeller amendment
would provide for congressional oversight of CIA activities.
The Levin amendment would have substitute the current bill with the
bill reported by the Senate Armed Services Committee. On September 27,
2006, the amendment was not agreed to, on a 43-54 vote.
