S.Amdt. 2916

SA 2916. Mr. KYL submitted an amendment intended to be proposed by him to the bill H.R. 1585, to authorize appropriations for fiscal year 2008 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes; which was ordered to lie on the table; as follows:

At page 306, strike line 23 and all that follows through the remainder of the section and insert the following:

“(G) the detainee shall bear the burden of proof and production that evidence that the United States seeks to introduce against him is inadmissible pursuant to this paragraph.

“(5) Scheduling.--The Secretary shall ensure that a Tribunal is scheduled for a detainee described in paragraph (2) not later than 180 days after the date on which a Tribunal becomes required for such detainee under paragraph (1), except that--

“(A) the Secretary shall schedule a Tribunal for a detainee who is eligible for such a Tribunal on the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008 not later than one year after the date on which procedures are required to be prescribed by paragraph (4); and

“(B) the Secretary shall not be required to schedule a Tribunal for--

“(i) a detainee upon whom charges have been served in accordance with section 948s of title 10, United States Code, until after final judgment has been reached on such charges; or

“(ii) a detainee who has been convicted by a military commission under chapter 47 A of such title of an offense under subchapter VII of that chapter.”.

(b) Modifications of Military Commission Authorities.--

(1) Congress finds that terrorists and other combatants serving in the forces of Al Qaeda, the Taliban, and associated forces are unlawful enemy combatants that they are subject to trial by military commission.

(2) Statements obtained through cruel, inhuman, or degrading treatment.--Section 948r of title 10, United States Code, is amended--

(A) by striking subsections (c) and (d); and

(B) by adding after subsection (b) the following new subsection (c):

“(c) Statements Obtained Through Cruel, Inhuman, or Degrading Treatment.--A statement in which the degree of coercion is disputed may be admitted if the military judge finds that--

“(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

“(2) the interests of justice would best be served by admission of the statement into evidence; and

“(3) one of the following circumstances is met:

“(A) The alleged coercion was incident to the lawful conduct of military operations at the point of apprehension.

“(B) The statement was voluntary.

“(C) The interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading. treatment prohibited by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd).

“(4) the detainee shall bear the burden of proof and production that evidence that the United States seeks to introduce against him is inadmissible pursuant to this subsection.”.

(4) Admittance of hearsay evidence.--Subparagraph (E) of section 949a(b)(2) of such title is amended to read as follows:

“(E) 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--

“(i) the proponent of the evidence makes known to the adverse party, sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to meet the evidence, the proponent's intention to offer the evidence, and the particulars of the evidence (including information on the circumstances under which the evidence was obtained); and

“(ii) the military judge finds that the totality of the circumstances render the evidence more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts, taking into consideration the unique circumstances of the conduct of military and intelligence operations during hostilities; or

“(iii) the evidence is admissible pursuant to the standards and procedures employed by recent United Nations war crimes tribunals or by the Nuremberg War Crimes Tribunal.”.

(5) Technical and conforming amendments.--

(A) Technical amendment.--The heading of section 950j of such title is amended by striking “Finality or” and inserting “Finality of”.

(B) Clerical amendment.--The table of sections at the beginning of subchapter VI of chapter 47A of such title is amended to read as follows:

“950j. Finality of proceedings, findings, and sentences.”.