[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1941 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 1941

 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 SENATE OF THE UNITED STATES

                           February 13, 2002

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

_______________________________________________________________________

                                 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 Tribunal Authorization 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) 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.''.
            (12) 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.

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;
            (2) are members of al Qaeda or members of other terrorist 
        organizations knowingly cooperating with members of al Qaeda in 
        planning, authorizing, committing, or aiding in the September 
        11, 2001 attacks against the United States, or, although not 
        members of any such organization, knowingly aided and abetted 
        members of al Qaeda in such terrorist activities against the 
        United States;
            (3) are apprehended in Afghanistan, fleeing from 
        Afghanistan, or in or fleeing from any other place outside the 
        United States where there is armed conflict involving the Armed 
        Forces of the United States; and
            (4) 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, or any protocol relating thereto.
    (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.
    (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 including translation or interpretation.
            (4) That the evidence supporting each alleged offense be 
        given to the accused.
            (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.
    (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 
        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 the rules of international law.
    (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 in 
Afghanistan, 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 Court of Appeals for the 
District of Columbia Circuit shall have exclusive jurisdiction to 
review any determination under this section that the requirements of 
this section for detaining an accused are satisfied.
    (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. 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.--The term ``United States 
        person'' has the meaning given that term in section 101(i) of 
        the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
        1801(i)).

SEC. 8. TERMINATION OF AUTHORITY.

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