[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1076 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 1076

To authorize the President to detain an enemy combatant who is a United 
  States person or resident who is a member of al Qaeda or knowingly 
  cooperated with members of al Qaeda, to guarantee timely access to 
 judicial review to challenge the basis for a detention, to permit the 
          detainee access to counsel, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 3, 2005

  Mr. Schiff introduced the following bill; which was referred to the 
 Committee on the Judiciary, and in addition to the Committee on Armed 
Services, 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 detain an enemy combatant who is a United 
  States person or resident who is a member of al Qaeda or knowingly 
  cooperated with members of al Qaeda, to guarantee timely access to 
 judicial review to challenge the basis for a detention, to permit the 
          detainee access to counsel, 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 ``Detention of Enemy Combatants Act''.

SEC. 2. FINDINGS.

    The 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 U.S.S. COLE (DDG-67), 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) 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.
            (4) The United States is justified in exercising its right 
        of self-defense pursuant to international law and the United 
        Nations Charter.
            (5) 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.
            (6) The United States and its allies are engaged in armed 
        conflict with al Qaeda.
            (7) Al Qaeda and its terrorist allies have a presence in 
        more than 60 nations around the world, including the United 
        States. United States citizens and residents have been detained 
        as enemy combatants in the struggle against al Qaeda.
            (8) The term ``enemy combatant'' has historically referred 
        to all of the citizens of a state with which the Nation is at 
        war, and who are members of the armed force of that enemy 
        state. Enemy combatants in the present conflict, however, come 
        from many nations, wear no uniforms, and use unconventional 
        weapons. Enemy combatants in the war on terrorism are not 
        defined by simple, readily apparent criteria, such as 
        citizenship or military uniform. And the power to name a 
        citizen as an ``enemy combatant'' is therefore extraordinarily 
        broad.
            (9) There is precedent for detaining American citizens as 
        enemy combatants. In Ex Parte Quirin, 317 U.S. 1 (1942), 2 of 
        the 8 German soldiers who planned acts of sabotage within the 
        United States claimed American citizenship. Detention of enemy 
        combatants who are United States citizens is appropriate to 
        protect the safety of the public and those involved in the 
        investigation and prosecution of terrorism, to facilitate the 
        use of classified information as evidence without compromising 
        intelligence or military efforts, to gather unimpeded vital 
        information from the detainee, and otherwise to protect 
        national security interests.
            (10) The Executive must be allowed broad latitude to 
        establish by regulation and Executive order the process, 
        standards, and conditions in which a United States citizen or 
        lawful resident may be detained as an enemy combatant. Courts 
        must give broad deference to military judgment concerning the 
        determination of enemy combatant status, POW status, and 
        related questions.
            (11) Section 4001(a) of title 18, United States Code, 
        provides that ``no citizen shall be imprisoned or otherwise 
        detained by the United States except pursuant to an Act of 
        Congress''. Section 4001 was designed to repeal the Emergency 
        Detention Act of 1950, and ensure that there was a statutory 
        basis for any detention. As Chief Justice Burger wrote in Howe 
        v. Smith, 452 U.S. 473 (1981), ``the plain language of section 
        4001(a) proscribes detention of any kind by the United States, 
        absent a congressional grant of authority to detain''.
            (12) By this Act, the Congress authorizes the President to 
        detain enemy combatants who are United States persons or 
        residents who are members of al Qaeda, or knowingly cooperated 
        with members of al Qaeda in the planning, authorizing, 
        committing, aiding, or abetting of one or more terrorist acts 
        against the United States.
            (13) During wartime, a nation must take extraordinary steps 
        to protect itself, including measures that would never be 
        acceptable during peacetime. Nonetheless, ``the Constitution of 
        the United States is a law for rulers and people, equally in 
        war and in peace, and covers with the shield of its protection 
        all classes of men, at all times, and under all 
        circumstances.'' Ex Parte Milligan.
            (14) Nothing in this Act permits the Government, even in 
        wartime, to detain American citizens or other persons lawfully 
        in the United States as enemy combatants indefinitely without 
        charges and hold them incommunicado without a hearing and 
        without access to counsel on the basis of a unilateral 
        determination that the person may be connected with an 
        organization that intends harm to the United States. The 
        Supreme Court has held that a citizen held in the United States 
        as an enemy combatant must be given a meaningful opportunity to 
        challenge the factual basis for that detention before a neutral 
        decisionmaker. Hamdi v. Rumsfeld, 542 U.S. 1 (2004). The 
        Supreme Court has held that even enemy aliens within the United 
        States are entitled to habeas review of their conviction. Ex 
        Parte Quirin, 317 U.S. 1 (1942); Johnson v. Eisentrager, 339 
        U.S. 763 (1950).
            (15) The validity of the detention of citizens as enemy 
        combatants may be challenged by a writ of habeas corpus. As the 
        right of habeas corpus may be effectively nullified by denial 
        of the assistance of counsel, a citizen detained as an enemy 
        combatant may not be indefinitely denied access to counsel.
            (16) The Congress has a responsibility for maintaining 
        vigorous oversight of detention of United States citizens and 
        lawful residents to assure that such detentions are consistent 
        with due process.

SEC. 3. DETENTION OF ENEMY COMBATANTS.

    (a) Authority.--A United States person or resident may be detained 
as an enemy combatant in accordance with this Act if the United States 
person or resident is a member of al Qaeda, or knowingly cooperated 
with a member of al Qaeda in the planning, authorizing, committing, 
aiding, or abetting of one or more terrorist acts against the United 
States. Nothing in this Act shall apply to a United States person or 
resident who is a prisoner of war within the meaning of the Geneva 
Convention Relative to the Treatment of Prisoners of War, signed at 
Geneva on August 12, 1949 (6 UST 3316).
    (b) 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 standards, process, and criteria to be used for 
the determination that an American citizen or lawful resident is an 
enemy combatant under subsection (a) and for the detention of such an 
enemy combatant.

SEC. 4. PROCEDURAL REQUIREMENTS.

    The rules prescribed for the detention of enemy combatants shall 
establish clear standards and procedures governing detention of a 
United States person or resident that preserve the Government's ability 
to detain those who may threaten the United States, assist in the 
gathering of vital intelligence, and protect the confidentiality of 
that information or any other information which, if released, could 
impede the Government's investigation of terrorism. Such rules shall 
also guarantee timely access to judicial review to challenge the basis 
for a detention, and permit the detainee access to counsel.

SEC. 5. DETENTION.

    (a) Duration of Detention.--
            (1) Limitation.--A United States person or resident may be 
        detained under subsection (a) of section 3 only while there is 
        in effect for the purposes of this section a certification by 
        the President that--
                    (A) the United States Armed Forces are engaged in a 
                state of armed conflict with al Qaeda and an 
                investigation with a view toward prosecution, a 
                prosecution, or a post-trial proceeding in the case of 
                such person or resident is ongoing; or
                    (B) detention is warranted in order to prevent such 
                person or resident from aiding persons attempting to 
                commit terrorist acts against the United States.
            (2) Certification and recertification.--A certification 
        referred to in paragraph (1) shall be effective for 180 days. 
        The President may make successive certifications under that 
        paragraph.
    (b) Detention Review.--The United States District Court for the 
District of Columbia shall have exclusive jurisdiction to review any 
detention under this Act to ensure that the requirements of this Act 
for detaining an accused are satisfied.
    (c) Conditions of Detention.--A person detained under this Act 
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. 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 each individual subject to, or 
detained pursuant to, the authority provided by this Act.

SEC. 7. UNITED STATES PERSON OR RESIDENT DEFINED.

    In this Act, the term ``United States person or resident'' means--
            (1) 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
            (2) an alien lawfully admitted to the United States for 
        permanent residence.

SEC. 8. TERMINATION OF AUTHORITY.

    The authority under this Act may not be exercised after December 
31, 2007.
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