S 1937 IS

To set forth certain requirements for trials and sentencing by military commissions, and for other purposes.

February 13, 2002

Mr. SPECTER (for himself and Mr. DURBIN) introduced the following bill; which was read twice and referred to the Committee on Armed Services

To set forth certain requirements for trials and sentencing by military commissions, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Military Commission Procedures Act of 2002'.

SEC. 2. DECLARATION OF LEGISLATIVE AUTHORITY.

The requirements, conditions, and restrictions provided in this Act are imposed in the exercise of the authority of Congress under clauses 1, 10, 11, 12, 13, 14, and 18 of section 8 of article I of the Constitution.

SEC. 3. APPLICABILITY.

The provisions of this Act shall apply with respect to each military commission established by, or pursuant to authority granted by, the President (whether by the Military Order of November 13, 2001, or otherwise) to try an individual who is not a United States citizen and with respect to whom the President determines that--

(1) there is reason to believe that the individual, at the relevant times--

(A) is or was a member of the organization known as al Qaeda;

(B) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

(C) has knowingly harbored one or more individuals described in subparagraph (A) or (B); and

(2) it is in the interest of the United States that such individual be subject to trial by a military commission on such charge.

SEC. 4. SUBJECT MATTER JURISDICTION.

A military commission may only adjudicate violations of the international law of war.

SEC. 5. COMPOSITION OF MILITARY COMMISSION.

(a) MINIMUM NUMBER OF MEMBERS- A military commission shall consist of not less than five members.

(b) ABSENT OR EXCUSED MEMBERS- No member of a military commission may be absent or excused after the military commission has been assembled for the trial of the defendant unless excused as a result of a challenge or excused by the Secretary of Defense for physical disability or other good cause.

(c) REPLACEMENT OF EXCUSED MEMBERS- Whenever a military commission is reduced below five members, the trial may not proceed unless the Secretary of Defense details new members sufficient in number to provide not less than five members. The trial may proceed with the new members present after the recorded evidence previously introduced before the members of the military commission has been read to the military commission in the presence of the other members of the military commission, the defendant, and counsel for both sides.

SEC. 6. REPRESENTATION BY COUNSEL.

(a) IN GENERAL- A defendant charged with any offense referred or to be referred to trial by a military commission shall have the same rights to representation by counsel as does an accused in a general court-martial under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice).

(b) CIVILIAN COUNSEL-

(1) SECURITY CLEARANCE-

(A) EXPEDITED CONSIDERATION- The Secretary of Defense shall ensure that a civilian counsel representing a defendant before a military commission is timely processed for the security clearance required for access to materials necessary for providing the defendant with effective assistance of counsel.

(B) COUNSEL INELIGIBLE FOR CLEARANCE- Notwithstanding subsection (a), a defendant referred to in that subsection is not entitled to be represented by a civilian counsel who is not eligible for the necessary security clearance, as determined in writing by the Secretary of Defense. The determination of the Secretary shall be final and is not subject to appeal to, or other review by, any court of the United States.

(2) TRAVEL EXPENSES- The Secretary of Defense shall pay a civilian counsel for travel away from the counsel's home or regular place of business in connection with the representation of a defendant before a military commission. The rates for the payment of travel expenses shall be those authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code.

SEC. 7. TRIAL PROCEDURES.

(a) TRIAL AND SENTENCING PHASES- Each trial by a military commission shall be composed of two phases, as follows:

(1) HEARING ON ISSUE OF GUILT- A hearing for the presentation of evidence and argument on the issue of guilt.

(2) HEARING ON SENTENCING- A hearing, after any verdict of guilty, for the presentation of evidence and argument on the issue of appropriate sentence.

(b) CONFRONTATION OF WITNESSES- Subject to section 8(c), a defendant in a trial by a military commission shall have--

(1) the right to confront and cross-examine each witness providing evidence offered by the prosecution against the defendant in the trial; and

(2) the right to examine all evidence offered by the prosecution against the defendant in the trial.

(c) NOTICE OF REFERRAL AS CAPITAL OFFENSE- For a charged offense to be tried and sentenced as a capital offense by a military commission in any case--

(1) the charge shall specifically set forth an allegation of the aggravating factors on which a sentence of death is justified; and

(2) the referral of the charge to the military commission shall specify that the maximum punishment authorized for the offense in the case includes death.

(d) BURDEN OF PROOF-

(1) PRESUMPTION OF INNOCENCE- The defendant in a trial by a military commission shall be presumed innocent until proven guilty.

(2) STANDARD OF PROOF- The prosecution shall have the burden of proving guilt of a charged offense beyond a reasonable doubt.

(3) CAPITAL OFFENSES- For an offense charged and referred to a military commission as a capital offense, the prosecution shall also have the burden of proving one or more aggravating factors sufficient to justify the sentence of death beyond a reasonable doubt.

(e) VOTING ON ISSUE OF GUILT-

(1) CAPITAL OFFENSES- For an offense charged and referred to a military commission as a capital offense--

(A) a finding of guilty of the offense as a capital offense results only if all members of the military commission present at the time the vote is taken vote for a finding of guilty and a finding of an alleged aggravating factor or a set of alleged aggravating factors sufficient to justify the sentence of death; or

(B) a finding of guilty of the offense as a noncapital offense results only if at least 2/3 of all members of the military commission present at the time the vote is taken vote for a finding of guilty.

(2) OTHER OFFENSES- In the case of an offense for which the maximum penalty does not include death, a finding of guilty of the offense results only if at least 2/3 of all members of the military commission present at the time the vote is taken vote for a finding of guilty.

(f) VOTING ON SENTENCE- A sentence may be adjudged by a military commission only if the requisite number of members of the military commission vote for that sentence. The requisite number of members is as follows:

(1) SENTENCE TO DEATH- In the case of a sentence that includes death, all members of the military commission present at the time the vote is taken.

(2) SENTENCE TO CONFINEMENT FOR MORE THAN 10 YEARS- In the case of a sentence that includes confinement for life or more than 10 years, at least 3/4 of all members of the military commission present at the time the vote is taken.

(3) OTHER SENTENCES- In the case of a sentence not described in paragraph (1) or (2), at least 2/3 of all members of the military commission present at the time the vote is taken.

(g) RECORD OF TRIAL-

(1) REQUIREMENT FOR RECORD- A record of each trial by a military commission shall be prepared promptly after the conclusion of the trial.

(2) VERBATIM TRANSCRIPT- The record of trial shall include a verbatim written transcript of all sessions of the trial except for sessions that are closed for deliberation and voting by the military commission.

(3) EXHIBITS AND OTHER EVIDENCE- The record of trial shall also include all exhibits and other real or demonstrative evidence, except that photographs may be substituted for any large written or graphic exhibits and any other real or demonstrative evidence. If a photograph is substituted for an exhibit or other evidence, the prosecution shall retain the original exhibit or other evidence, respectively, until no further appeal of the results of the trial is authorized.

(4) CLASSIFIED INFORMATION- In the case of a conviction of a charge on which classified information is admitted as evidence by the military commission, the copy of the record of trial submitted to an appellate court shall include the classified information.

SEC. 8. EVIDENTIARY MATTERS.

(a) STATEMENTS OF DEFENDANTS-

(1) ADMISSIBILITY- In a trial by a military commission, a statement made by the defendant shall be admissible notwithstanding any failure to advise the defendant, or any defect in the advising of the defendant, under section 831 of title 10, United States Code (article 31 of the Uniform Code of Military Justice), if the statement is otherwise admissible.

(2) PROHIBITION OF COMPELLED TESTIMONY- A defendant in a trial by a military commission may not be compelled to testify in the trial. A military commission may not draw any evidentiary inference from a failure of the defendant to testify.

(b) DISCOVERY AND PRESENTATION OF EXCULPATORY EVIDENCE- The defendant shall be accorded the opportunity to discover and present exculpatory evidence to the same extent as applies to defendants in courts-martial under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice).

(c) CLASSIFIED INFORMATION-

(1) ADMISSIBILITY- A military commission may admit and consider classified information offered by the prosecution in the case of a defendant if the prosecution has previously submitted a summary of the information, approved under this subsection, to the military commission and the defendant. The military commission shall receive and consider the classified information ex parte and in camera.

(2) SUMMARY OF EVIDENCE- Before offering classified information as evidence in a trial before a military commission, the prosecution shall submit a summary of the information to the military commission and the defendant.

(3) COMMISSION REVIEW-

(A) APPROVAL- The military commission shall approve the summary of classified information if the military commission finds that the summary provides the defendant with information sufficient to ensure that the defendant has substantially the same ability to defend against the charge or charges to which the classified information relates as the defendant would have if the classified information were disclosed to the defendant.

(B) DISAPPROVAL- If the military commission disapproves the summary of information, the military commission shall notify the prosecution and the defendant of the disapproval and return the summary to the prosecution with the notification.

(C) REVISED SUBMITTAL- Upon receipt of a notification of a disapproval of a summary of classified information under subparagraph (B), the prosecution may submit a revised summary of the classified information to the military commission and the defendant within 15 days after the date on which the prosecution receives the notification. A revised summary of classified information shall be subject to subparagraphs (A) and (B).

(D) INTERLOCUTORY APPEAL-

(i) AUTHORITY- The prosecution may appeal to the United States Court of Appeals for Military Commissions established under section 9(b) any disapproval of a summary or revised summary of classified information under this paragraph.

(ii) TIMELINESS- Any appeal under this subparagraph shall be commenced not later than 15 days after the date on which the prosecution receives the notification of disapproval from the military commission.

(iii) DOCUMENTATION- The prosecution shall include in the appeal documents the classified information and the summary and, if any, the revised summary or summaries of such information, together with a summary of all of the other evidence intended to be offered by the prosecution.

(iv) ACTION BY APPELLATE COURT- The appellate court shall conduct a de novo review of the summary or summaries, as the case may be, and issue a final ruling on the interlocutory appeal within 45 days after all submittals required by the court are filed.

SEC. 9. APPEAL.

(a) IN GENERAL- Any individual convicted by a military commission is entitled to a review of that conviction in accordance with this section.

(b) REVIEW BY UNITED STATES COURT OF APPEALS FOR MILITARY COMMISSIONS-

(1) ESTABLISHMENT OF COURT- Upon the first determination of the President to try and dispose of any charge before a military commission, there shall be established a court to be known as the United States Court of Appeals for Military Commissions (in this section referred to as the `Court').

(2) COMPOSITION-

(A) IN GENERAL- The Court shall be composed of three judges publicly designated by the Chief Justice of the United States from among the judges of the United States courts of appeals.

(B) LIMITATION- No two judges designated for the Court may be from the same court of appeals.

(C) VACANCY- Any vacancy in the Court shall be filled in the same manner as the original designation, subject to subparagraph (B).

(3) DURATION- The Court shall continue until the final disposition of all matters under the jurisdiction of the Court on any charges that may be tried or disposed of by a military commission.

(4) PROCEDURE- The Court shall establish its rules of procedure. Such rules shall be consistent, to the extent practicable, with applicable provisions of the Federal Rules of Appellate Procedure and the rules of procedure prescribed by the United States Court of Appeals for the Armed Forces under section 944 of title 10, United States Code (article 144 of the Uniform Code of Military Justice).

(5) JURISDICTION- The Court shall have jurisdiction to review the following:

(A) INTERLOCUTORY APPEAL OF DISAPPROVAL OF SUMMARY OF CLASSIFIED INFORMATION- Any interlocutory appeal of the disapproval of a summary or revised summary of classified information under section 8(c)(3)(D).

(B) APPEAL OF CONVICTION- Any appeal of the conviction of an individual by a military commission.

(6) PROCEEDINGS- Proceedings under this subsection in review of an appeal under paragraph (5)(B) shall be conducted as expeditiously possible.

(c) REVIEW BY SUPREME COURT-

(1) IN GENERAL- Decisions by the Court are subject to review by the Supreme Court by writ of certiorari.

(2) EXEMPTION FROM CERTAIN PETITION REQUIREMENTS- An individual may petition the Supreme Court for a writ of certiorari under this subsection without prepayment of fees and costs or security therefor and without filing the affidavit required by section 1915(a) of title 28, United States Code.