US Public Law 109-366

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This is the text of the Military Commissions Act of 2006 as retrieved from the Government Printing Office on 2007-09-22 and reformatted for clarity.

Text

  • CID: f:publ366.109]
  • [[Page 2599]]

MILITARY COMMISSIONS ACT OF 2006

An Act

To authorize trial by military commission for violations of the law of war, and for other purposes. <<NOTE: Oct. 17, 2006 - [S. 3930]>>

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, <<NOTE: Military Commissions Act of 2006.>>

SEC. 1. SHORT TITLE; TABLE OF CONTENTS.

SECTION 1. <<NOTE: 10 USC 948a note.>> 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.

SEC. 2. <<NOTE: 10 USC 948a note.>> 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.

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:
      US Public Law 109-366 revision of USC 10.A.47A
    • (2) Tables of chapters amendments.--The tables of chapters at the beginning of subtitle A, and at the beginning of [[Page 120 STAT. 2631]] 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 <<NOTE: Deadline. Reports. 10 USC 948a note.>> 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 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.

SEC. 5. <<NOTE: 28 USC 2241 note.>> TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CERTAIN CLAIMS.

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. [[Page 120 STAT. 2632]]

  • (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.

SEC. 6. <<NOTE: 18 USC 2441 note.>> 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) <<NOTE: President. Federal Register, publication.>> 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); [[Page 120 STAT. 2633]]
        • (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:
        US Public Law 109-366 revision of USC 18.2441.d
    • (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 <<NOTE: 42 USC 2000dd-0.>> 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 <<NOTE: President. Rules. Procedures.>> 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 [[Page 120 STAT. 2636]] 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 <<NOTE: 28 USC 2441 note.>> 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...

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 <<NOTE: Applicability. 42 USC 2000dd-1 note.>> 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): [[Page 120 STAT. 2637]]
    • "(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 ``{{hilite|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...

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".

Footer

Approved October 17, 2006.

LEGISLATIVE HISTORY--S. 3930 (H.R. 6054):

HOUSE REPORTS: No. 109-664, Pt. 1 (Comm. on Armed Services) and Pt. 2 (Comm. on the Judiciary), both accompanying H.R. 6054.
CONGRESSIONAL RECORD, Vol. 152 (2006):
Sept. 27, 28, considered and passed Senate.
Sept. 29, considered and passed House.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 42 (2006):
Oct. 17, Presidential remarks.
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