[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5071 Introduced in House (IH)]







107th CONGRESS
  2d Session
                                H. R. 5071

 To authorize the President to establish military tribunals to try the 
 terrorists responsible for the September 11, 2001 attacks against the 
                 United States, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              July 9, 2002

  Mr. Schiff (for himself, Mr. Conyers, and Mr. Frank) introduced the 
following bill; which was referred to the Committee on Armed Services, 
 and in addition to the Committee on the Judiciary, for a period to be 
subsequently determined by the Speaker, in each case for consideration 
  of such provisions as fall within the jurisdiction of the committee 
                               concerned

_______________________________________________________________________

                                 A BILL


 
 To authorize the President to establish military tribunals to try the 
 terrorists responsible for the September 11, 2001 attacks against the 
                 United States, 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 Tribunals Act of 2002''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) The al Qaeda terrorist organization and its leaders 
        have committed unlawful attacks against the United States, 
        including the August 7, 1998 bombings of the United States 
        embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, the 
        October 12, 2000 attack on the USS COLE and the September 11, 
        2001 attacks on the United States.
            (2) The al Qaeda terrorist organization and its leaders 
        have threatened renewed attacks on the United States and have 
        threatened the use of weapons of mass destruction.
            (3) In violation of the resolutions of the United Nations, 
        the Taliban of Afghanistan provided a safe haven to the al 
        Qaeda terrorist organization and its leaders and allowed the 
        territory of that country to be used as a base from which to 
        sponsor international terrorist operations.
            (4) The United Nations Security Council, in Resolution 
        1267, declared in 1999 that the actions of the Taliban 
        constitute a threat to international peace and security.
            (5) The United Nations Security Council, in Resolutions 
        1368 and 1373, declared in September 2001 that the September 11 
        attacks against the United States constitute a threat to 
        international peace and security.
            (6) The United States is justified in exercising its right 
        of self-defense pursuant to international law and the United 
        Nations Charter.
            (7) Congress authorized the President on September 18, 
        2001, to use all necessary and appropriate force against those 
        nations, organizations, or persons that he determines to have 
        planned, authorized, committed, or aided the September 11 
        terrorist attacks or harbored such organizations or persons, in 
        order to prevent any future acts of international terrorism 
        against the United States, within the meaning of section 5(b) 
        of the War Powers Resolution.
            (8) The United States and its allies are engaged in armed 
        conflict with al Qaeda and the Taliban.
            (9) Military trials of the terrorists may be appropriate to 
        protect the safety of the public and those involved in the 
        investigation and prosecution, to facilitate the use of 
        classified information as evidence without compromising 
        intelligence or military efforts, and otherwise to protect 
        national security interests.
            (10) Military trials that provide basic procedural 
        guarantees of fairness, consistent with the international law 
        of armed conflict and the International Covenant on Civil and 
        Political Rights (opened for signature December 16, 1966), 
        would garner the support of the community of nations.
            (11) Due process, including the writ of habeas corpus and 
        the right to an appeals process, must be afforded to any person 
        subject to a military tribunal.
            (12) Preliminary proceedings should be established to 
        determine whether jurisdiction over the person and over the 
        charge is properly vested in the tribunal.
            (13) Article I, section 8, of the Constitution provides 
        that the Congress, not the President, has the power to 
        ``constitute Tribunals inferior to the Supreme Court; ... 
        define and punish ... Offenses against the Law of Nations; ... 
        make Rules concerning Captures on Land and Water; ... make all 
        Laws which shall be necessary and proper for carrying into 
        Execution the foregoing Powers and all other Powers vested by 
        this Constitution in the Government of the United States, or in 
        any Department or Officer thereof.''.
            (14) Without protections and reporting requirements in 
        place, persons detained for an indefinite amount of time would 
        have no recourse. A significant danger exists that due process 
        might be evaded simply by failing to bring detainees before a 
        tribunal for trial.
            (15) Congressional authorization is necessary for the 
        establishment of extraordinary tribunals to adjudicate and 
        punish offenses arising from the September 11, 2001 attacks 
        against the United States and to provide a clear and 
        unambiguous legal foundation for such trials.
            (16) Judicial review of individual detentions is best 
        handled by a court that would not have to appoint special 
        masters or magistrates to do the necessary fact finding.

SEC. 3. ESTABLISHMENT OF EXTRAORDINARY TRIBUNALS.

    (a) Authority.--The President is hereby authorized to establish 
tribunals for the trial of individuals who--
            (1) are not United States persons or residents;
            (2) are members of al Qaeda who knowingly planned, 
        authorized, committed, aided, or abetted one or more terrorist 
        acts against the United States, or members of other terrorist 
        organizations who knowingly cooperated with members of al Qaeda 
        in planning, authorizing, committing, aiding, or abetting one 
or more terrorists acts against the United States; and
            (3) are not prisoners of war within the meaning of the 
        Geneva Convention Relative to the Treatment of Prisoners of 
        War, done on August 12, 1949.
    (b) Jurisdiction.--Tribunals established under subsection (a) may 
adjudicate violations of the law of war, international laws of armed 
conflict, and crimes against humanity targeted against United States 
persons or residents.
    (c) Authority To Establish Procedural Rules.--The Secretary of 
Defense, in consultation with the Secretary of State and the Attorney 
General, shall prescribe and publish in the Federal Register, and 
report to the Committees on the Judiciary of the Senate and the House 
of Representatives, the rules of evidence and procedure that are to 
apply to tribunals established under subsection (a).

SEC. 4. PROCEDURAL REQUIREMENTS.

    (a) In General.--The rules prescribed for a tribunal under section 
3(c) shall be designed to ensure a full and fair hearing of the charges 
against the accused. The rules shall require the following:
            (1) That the tribunal be independent and impartial.
            (2) That the accused be notified of the particulars of the 
        offense charged or alleged without delay.
            (3) That the proceedings be made simultaneously 
        intelligible for participants not conversant in the English 
        language by translation or interpretation.
            (4) That the evidence supporting each alleged offense be 
        given to the accused, except as provided in section 4(d) of 
        this Act.
            (5) That the accused have the opportunity to be present at 
        trial.
            (6) That the accused have a right to be represented by 
        counsel.
            (7) That the accused have the opportunity--
                    (A) to respond to the evidence supporting each 
                alleged offense;
                    (B) to obtain exculpatory evidence from the 
                prosecution; and
                    (C) to present exculpatory evidence.
            (8) That the accused have the opportunity to confront and 
        cross-examine adverse witnesses and to offer witnesses.
            (9) That the proceeding and disposition be expeditious.
            (10) That the tribunal apply reasonable rules of evidence 
        designed to ensure admission only of reliable information or 
        material with probative value.
            (11) That the accused be afforded all necessary means of 
        defense before and after the trial.
            (12) That conviction of an alleged offense be based only 
        upon proof of individual responsibility for the offense.
            (13) That conviction of an alleged offense not be based 
        upon an act, offense, or omission that was not an offense under 
        law when it was committed.
            (14) That the penalty for an offense not be greater than it 
        was when the offense was committed.
            (15) That the accused--
                    (A) be presumed innocent until proven guilty, and
                    (B) not be found guilty except upon proof beyond a 
                reasonable doubt.
            (16) That the accused not be compelled to confess guilt or 
        testify against himself.
            (17) That, subject to subsections (c) and (d), the trial be 
        open and public and include public availability of the 
        transcripts of the trial and the pronouncement of judgment.
            (18) That a convicted person be informed of remedies and 
        appeals and the time limits for the exercise of the person's 
        rights to the remedies and appeals under the rules.
            (19) That a preliminary proceeding be held within 30 days 
        of detention to determine whether there is jurisdiction under 
        section 3 over the person and the offenses charged. The 
        preliminary proceeding may be continued for an additional 30 
        days for good cause shown.
            (20) That the privilege of the writ of habeas corpus under 
        title 28, United States Code, or under any other provision of 
        law not be infringed.
            (21) That the tribunal be comprised of a military judge and 
        not less than five members.
    (b) Imposition of the Death Penalty.--The requirements of the 
Uniform Code of Military Justice for the imposition of the death 
penalty shall apply in any case in which a tribunal established under 
section 3 is requested to adjudge the death penalty.
    (c) Public Proceedings.--Any proceedings conducted by a tribunal 
established under section 3, and the proceedings on any appeal of an 
action of the tribunal, shall be accessible to the public consistent 
with any demonstrable necessity to secure the safety of observers, 
witnesses, tribunal judges, counsel, or other persons.
    (d) Confidentiality of Evidence.--Evidence available from an agency 
of the Federal Government that is offered in a trial by a tribunal 
established under section 3 may be kept secret from the public only 
when the head of the agency personally certifies in writing that 
disclosure will cause--
            (1) identifiable harm to the prosecution of military 
        objectives or interfere with the capture of members of al Qaeda 
        anywhere;
            (2) significant, identifiable harm to intelligence sources 
        or methods; or
            (3) substantial risk that such evidence could be used for 
        planning future terrorist attacks.
    (e) Review.--
            (1) Procedures required.--The Secretary of Defense shall 
        provide for prompt review of convictions by tribunals 
        established under section 3 to ensure that the procedural 
        requirements of a full and fair hearing have been met and that 
        the evidence reasonably supports the convictions.
            (2) United states court of appeals for the armed forces.--
        The procedures established under paragraph (1) shall, at a 
minimum, allow for review of the proceedings of the tribunals, and the 
convictions and sentences of such tribunals, by the United States Court 
of Appeals for the Armed Forces established under the Uniform Code of 
Military Justice.
            (3) Supreme court.--The decisions of the United States 
        Court of Appeals for the Armed Forces regarding proceedings of 
        tribunals established under section 3 shall be subject to 
        review by the Supreme Court by writ of certiorari.

SEC. 5. DETENTION.

    (a) In General.--The President may direct the Secretary of Defense 
to detain any person who is subject to a tribunal established under 
section 3 pursuant to rules and regulations that are promulgated by the 
Secretary and are consistent with international law of armed conflict.
    (b) Duration of Detention.--
            (1) Limitation.--A person may be detained under subsection 
        (a) only while--
                    (A) there is in effect for the purposes of this 
                section a certification by the President that the 
                United States Armed Forces are engaged in a state of 
                armed conflict with al Qaeda or Taliban forces in the 
                region of Afghanistan or with al Qaeda forces 
                elsewhere; or
                    (B) an investigation with a view toward 
                prosecution, a prosecution, or a post-trial proceeding 
                in the case of such person, pursuant to the provisions 
                of this Act, is ongoing.
            (2) Certification and recertification.--A certification of 
        circumstances made under paragraph (1) shall be effective for 
        180 days. The President may make successive certifications of 
        the circumstances.
    (c) Disclosure of Evidence.--Evidence that may establish that an 
accused is not a person described in subsection (a) shall be disclosed 
to the accused and his counsel, except that a summary of such evidence 
shall be provided to the accused and his counsel when the Attorney 
General personally certifies that disclosure of the evidence would 
cause identifiable harm to the prosecution of military objectives, to 
the capture of other persons who are subject to this Act or reside 
outside the United States, or to the prevention of future terrorist 
acts directed against Americans. A summary of evidence shall be as 
complete as is possible in order to provide the accused with an 
evidentiary basis to seek release from detention.
    (d) Detention Review.--The United States District Court for the 
District of Columbia shall have exclusive jurisdiction to review any 
determination under this section that the requirements of this section 
for detaining an accused are satisfied. Findings of fact shall be 
sustained unless they are clearly erroneous. Conclusions of law and 
mixed questions of law and fact shall be subject to de novo review.
    (e) Conditions of Detention.--A person detained under this section 
shall be--
            (1) detained at an appropriate location designated by the 
        Secretary of Defense;
            (2) treated humanely, without any adverse distinction based 
        on race, color, religion, gender, birth, wealth, or any similar 
        criteria;
            (3) afforded adequate food, drinking water, shelter, 
        clothing, and medical treatment;
            (4) sheltered under hygienic conditions and provided 
        necessary means of personal hygiene; and
            (5) allowed the free exercise of religion consistent with 
        the requirements of such detention.

SEC. 6. SENSE OF CONGRESS.

    It is the sense of Congress that the President should seek the 
cooperation of United States allies and other nations in conducting the 
investigations and prosecutions, including extraditions, of the persons 
who are responsible for the September 11, 2001 attacks on the United 
States, and use to the fullest extent possible multilateral 
institutions and mechanisms for carrying out such investigations and 
prosecutions.

SEC. 7. REPORTS TO CONGRESS.

    Not less often than once every 12 months, the President shall 
submit to the Congress a report on the use of the authority provided by 
this Act. Each such report shall specify--
            (1) each individual subject to, or detained pursuant to, a 
        military tribunal authorized by this Act; and
            (2) each individual detained pursuant to any actual or 
        planned act of terrorism occurring on or after September 11, 
        2001, who has not been referred for trial in connection with 
        that act of terrorism to a criminal court or to a military 
        tribunal authorized by this Act.

SEC. 8. DEFINITIONS.

    In this Act:
            (1) September 11, 2001 attacks on the united states.--The 
        term ``September 11, 2001 attacks on the United States'' means 
        the attacks on the Pentagon in the metropolitan area of 
        Washington, District of Columbia, and the World Trade Center, 
        New York, New York, on September 11, 2001, and includes the 
        hijackings of American Airlines flights 77 and 11 and United 
        Airlines flights 175 and 93 on that date.
            (2) United states person or resident.--The term ``United 
        States person or resident'' means--
                    (A) a United States person, as such term is defined 
                in section 101(i) of the Foreign Intelligence 
                Surveillance Act of 1978 (50 U.S.C. 1801(i)); or
                    (B) an alien lawfully admitted to the United States 
                for permanent residence.

SEC. 9. TERMINATION OF AUTHORITY.

    The authority under this Act shall terminate at the end of December 
31, 2005.
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