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.>>

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.

<<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 Chapter 47A

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.

<<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.

<<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:
        • "(d) Common Article 3 Violations.--
          • "(1) Prohibited conduct.--In subsection (c)(3), the term `grave breach of common Article 3' means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
            • "(A) Torture.--The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
                    ``(B) Cruel or inhuman treatment.--The act of a 
                person who commits, or conspires or attempts to commit, 
                an act intended to inflict severe or serious physical or 
                mental pain or suffering (other than pain or suffering 
                incidental to lawful sanctions), including serious 
                physical abuse, upon another within his custody or 
                control.
                    ``(C) Performing biological experiments.--The act of 
                a person who subjects, or conspires or attempts to 
                subject, one or more persons within his custody or 
                physical control to biological experiments without a 
                legitimate medical or dental purpose and in so doing 
                endangers the body or health of such person or persons.
                    ``(D) Murder.--The act of a person who intentionally 
                kills, or conspires or attempts to kill, or kills 
                whether intentionally or unintentionally in the course 
                of committing any other offense under this subsection, 
                one or more persons taking no active part in the 
                hostilities, including those placed out of combat by 
                sickness, wounds, detention, or any other cause.

[[Page 120 STAT. 2634]]

                    ``(E) Mutilation or maiming.--The act of a person 
                who intentionally injures, or conspires or attempts to 
                injure, or injures whether intentionally or 
                unintentionally in the course of committing any other 
                offense under this subsection, one or more persons 
                taking no active part in the hostilities, including 
                those placed out of combat by sickness, wounds, 
                detention, or any other cause, by disfiguring the person 
                or persons by any mutilation thereof or by permanently 
                disabling any member, limb, or organ of his body, 
                without any legitimate medical or dental purpose.
                    ``(F) Intentionally causing serious bodily injury.--
                The act of a person who intentionally causes, or 
                conspires or attempts to cause, serious bodily injury to 
                one or more persons, including lawful combatants, in 
                violation of the law of war.
                    ``(G) Rape.--The act of a person who forcibly or 
                with coercion or threat of force wrongfully invades, or 
                conspires or attempts to invade, the body of a person by 
                penetrating, however slightly, the anal or genital 
                opening of the victim with any part of the body of the 
                accused, or with any foreign object.
                    ``(H) Sexual assault or abuse.--The act of a person 
                who forcibly or with coercion or threat of force 
                engages, or conspires or attempts to engage, in sexual 
                contact with one or more persons, or causes, or 
                conspires or attempts to cause, one or more persons to 
                engage in sexual contact.
                    ``(I) Taking hostages.--The act of a person who, 
                having knowingly seized or detained one or more persons, 
                threatens to kill, injure, or continue to detain such 
                person or persons with the intent of compelling any 
                nation, person other than the hostage, or group of 
                persons to act or refrain from acting as an explicit or 
                implicit condition for the safety or release of such 
                person or persons.
            ``(2) Definitions.--In the case of an offense under 
        subsection (a) by reason of subsection (c)(3)--
                    ``(A) the term `severe mental pain or suffering' 
                shall be applied for purposes of paragraphs (1)(A) and 
                (1)(B) in accordance with the meaning given that term in 
                section 2340(2) of this title;
                    ``(B) the term `serious bodily injury' shall be 
                applied for purposes of paragraph (1)(F) in accordance 
                with the meaning given that term in section 113(b)(2) of 
                this title;
                    ``(C) the term `sexual contact' shall be applied for 
                purposes of paragraph (1)(G) in accordance with the 
                meaning given that term in section 2246(3) of this 
                title;
                    ``(D) the term `serious physical pain or suffering' 
                shall be applied for purposes of paragraph (1)(B) as 
                meaning bodily injury that involves--
                          ``(i) a substantial risk of death;
                          ``(ii) extreme physical pain;
                          ``(iii) a burn or physical disfigurement of a 
                      serious nature (other than cuts, abrasions, or 
                      bruises); or
                          ``(iv) significant loss or impairment of the 
                      function of a bodily member, organ, or mental 
                      faculty; and
                    ``(E) the term `serious mental pain or suffering' 
                shall be applied for purposes of paragraph (1)(B) in 
                accordance

[[Page 120 STAT. 2635]]

                with the meaning given the term `severe mental pain or 
                suffering' (as defined in section 2340(2) of this 
                title), except that--
                          ``(i) the term `serious' shall replace the 
                      term `severe' where it appears; and
                          ``(ii) as to conduct occurring after the date 
                      of the enactment of the Military Commissions Act 
                      of 2006, the term `serious and non-transitory 
                      mental harm (which need not be prolonged)' shall 
                      replace the term `prolonged mental harm' where it 
                      appears.
            ``(3) Inapplicability of certain provisions with respect to 
        collateral damage or incident of lawful attack.--The intent 
        specified for the conduct stated in subparagraphs (D), (E), and 
        (F) or paragraph (1) precludes the applicability of those 
        subparagraphs to an offense under subsection (a) by reasons of 
        subsection (c)(3) with respect to--
                    ``(A) collateral damage; or
                    ``(B) death, damage, or injury incident to a lawful 
                attack.
            ``(4) Inapplicability of taking hostages to prisoner 
        exchange.--Paragraph (1)(I) does not apply to an offense under 
        subsection (a) by reason of subsection (c)(3) in the case of a 
        prisoner exchange during wartime.
            ``(5) Definition of grave breaches.--The definitions in this 
        subsection are intended only to define the grave breaches of 
        common Article 3 and not the full scope of United States 
        obligations under that Article.''.
            (2) Retroactive applicability.--The amendments made by this 
        subsection, except as specified in subsection (d)(2)(E) of 
        section 2441 of title 18, United States Code, shall take effect 
        as of November 26, 1997, as if enacted immediately after the 
        amendments made by section 583 of Public Law 105-118 (as amended 
        by section 4002(e)(7) of Public Law 107-273).

    (c) Additional <<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 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 ``by a military 
                      commission''; and
                          (ii) by striking ``at Guantanamo Bay, Cuba''; 
                      and
                    (B) in clause (ii), by striking ``pursuant to such 
                military order'' and inserting ``by the military 
                commission''; and
            (4) in subparagraph (D)(i), by striking ``specified in the 
        military order'' and inserting ``specified for a military 
        commission''.

SEC. 10. DETENTION COVERED BY REVIEW OF DECISIONS OF COMBATANT STATUS 
            REVIEW TRIBUNALS OF PROPRIETY OF DETENTION.

    Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 2005 
(title X of Public Law 109-148; 119 Stat. 2742; 10 U.S.C. 801 note) is 
amended by striking ``the Department of Defense at Guantanamo Bay, 
Cuba'' and inserting ``the United States''.

    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.

                                  <all>
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