[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3038 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 3038

   To affirm the authority of the executive branch to detain foreign 
  nationals as unlawful combatants, to enable a person detained as an 
  unlawful combatant to challenge the basis for that detention and to 
 receive a disposition within 2 years, to provide for the President to 
    establish military tribunals to try such persons, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 22, 2005

    Mr. Schiff (for himself, Mr. Udall of Colorado, and Mr. Owens) 
 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 affirm the authority of the executive branch to detain foreign 
  nationals as unlawful combatants, to enable a person detained as an 
  unlawful combatant to challenge the basis for that detention and to 
 receive a disposition within 2 years, to provide for the President to 
    establish military tribunals to try such persons, 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 ``Guantanamo Detainees Procedures Act 
of 2005''.

SEC. 2. AUTHORITY OF EXECUTIVE BRANCH TO DETAIN PERSONS COVERED BY THIS 
              ACT AS UNLAWFUL COMBATANTS.

    (a) Finding.--Congress finds that the executive branch has 
authority to detain persons covered by this Act as unlawful combatants.
    (b) Persons Covered by This Act.--In this Act, the term ``person 
covered by this Act'' means an individual who--
            (1) is accused of knowingly--
                    (A) planning, authorizing, committing, aiding, or 
                abetting one or more terrorist acts against the United 
                States; or
                    (B) being part of or supporting forces engaged in 
                armed conflict against the United States;
            (2) is not a United States person or lawful permanent 
        resident; and
            (3) is not a prisoner of war within the meaning of the 
        Geneva Convention Relative to the Treatment of Prisoners of 
        War, done on August 12, 1949.

SEC. 3. RIGHT OF PERSON DETAINED AS UNLAWFUL COMBATANT OR ON SIMILAR 
              BASIS TO CHALLENGE THAT BASIS.

    (a) In General.--Whenever the United States detains a person 
covered by this Act on the basis of a determination that the person can 
be detained as an unlawful combatant or can be detained on any similar 
basis, the person is entitled to a hearing under this section as 
expeditiously as practicable but not later than 6 months after the date 
on which the United States first made the determination.
    (b) Requirements for Hearing.--A hearing required by subsection (a) 
must meet the following requirements:
            (1) The hearing officer is an active member of one of the 
        Courts of Criminal Appeals of the Armed Forces.
            (2) The hearing officer has authority to decide de novo 
        whether the basis of a determination under subsection (a) is 
        valid and to grant appropriate relief if the hearing officer 
        decides that the basis is invalid.
            (3) The hearing officer is impartial in fact, and is in a 
        position independent from--
                    (A) the individuals who first determined that the 
                person can be detained; and
                    (B) the individuals on whose orders the person is 
                being detained.
            (4) The person is provided with access to the evidence that 
        tends to support the determination that the person can be 
        detained.
            (5) The person is provided with an opportunity to address 
        the hearing officer, and is provided with an interpreter for 
        that purpose.
    (c) Administrative Review.--The Secretary of Defense shall conduct 
administrative review of the activities of a hearing officer under this 
section.

SEC. 4. RIGHT OF PERSON DETAINED TO DISPOSITION WITHIN 2 YEARS.

    (a) In General.--Whenever the United States detains a person 
covered by this Act on the basis of a determination that the person can 
be detained as an unlawful combatant or can be detained on any similar 
basis, the person is entitled to a disposition under this section not 
later than 2 years after the date on which the United States first made 
the determination.
    (b) Requirements for Disposition.--A disposition under this section 
is any one of the following:
            (1) Repatriation to the governing authority in the area in 
        which the person was first detained or the person's country of 
        origin, except where there are substantial grounds to believe 
        that the person would be in danger of being subjected to 
        torture.
            (2) The commencement, by formal charges, of prosecution in 
        an appropriate court, which may include an extraordinary 
        tribunal under section 5 of this Act, an international criminal 
        tribunal, or a district court of the United States.
    (c) Extension.--
            (1) Certification.--The period required by subsection (a) 
        for the repatriation of the person or the commencement of 
        formal charges may be extended if the Secretary of Defense 
        certifies, in writing, with respect to the person that the 
        Secretary of Defense has determined that the person is a 
        continuing threat to the national security of the United States 
        due to a likelihood that the person will undertake terrorist or 
        belligerent acts against the United States based on the 
        person's past conduct, level of authority within the group or 
        organization, statement and actions during confinement, age and 
        health, psychological profile, and other pertinent factors, and 
        the repatriation of the person or the commencement of formal 
        charges will compromise the national security of the United 
        States by curtailing intelligence gathering from the person, 
        jeopardize intelligence sources necessary to prosecute the 
        person, or other extraordinary circumstances justify the 
        extension.
            (2) Detailed basis.--A certification under this subsection 
        must include a detailed account of the factual basis for that 
        determination.
            (3) Access to certification.--A person covered by a 
        certification under this subsection is entitled to an 
        unclassified copy of the certification.
            (4) Duration of certification.--A certification under this 
        subsection is effective for not more than 1 year. The Secretary 
        may make successive certifications with respect to a person so 
        long as each additional certification is made while an imminent 
        threat to national security continues to be posed by the group 
        or organization in which the person is a member or by other 
        persons associated with, or acting on behalf of, the group, 
        organization, or person.
            (5) Judicial review.--The United States Court of Appeals 
        for the Armed Forces shall provide judicial review with respect 
        to any issue under this subsection, including whether the 
        determination of the Secretary under paragraph (1) is justified 
        by the factual basis under paragraph (2).

SEC. 5. EXTRAORDINARY TRIBUNALS.

    (a) Authority.--The President is hereby authorized to establish 
tribunals for the trial of persons covered by this Act.
    (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. 6. PROCEDURAL REQUIREMENTS.

    (a) In General.--The rules prescribed for a tribunal under section 
5(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 subsection (d).
            (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 not be based 
        upon an act, offense, or omission that was not an offense under 
        law when it was committed.
            (13) That the penalty for an offense not be greater than it 
        was when the offense was committed.
            (14) That the accused--
                    (A) be presumed innocent until proven guilty, and
                    (B) not be found guilty except upon proof beyond a 
                reasonable doubt.
            (15) That the accused not be compelled to confess guilt or 
        testify against himself.
            (16) 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.
            (17) 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.
            (18) That a preliminary proceeding be held within 30 days 
        of detention to determine whether there is jurisdiction under 
        section 4 over the person and the offenses charged. The 
        preliminary proceeding may be continued for an additional 30 
        days for good cause shown.
            (19) 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.
            (20) 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 5 is requested to adjudge the death penalty.
    (c) Public Proceedings.--Any proceedings conducted by a tribunal 
established under section 5, 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 5 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;
            (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 5 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 5 shall be subject to 
        review by the Supreme Court by writ of certiorari.

SEC. 7. ANNUAL REPORT ON PERSONS COVERED BY THIS ACT WHO ARE DETAINED 
              AS UNLAWFUL COMBATANTS BY THE UNITED STATES.

    (a) Report Required.--The Secretary of Defense shall submit to 
Congress an annual report on persons covered by this Act who are 
detained as unlawful combatants by the United States.
    (b) Current Detainees.--The report shall include, for each person 
currently so detained, the following:
            (1) The name and nationality of the person.
            (2) The period during which the person has been so 
        detained.
            (3) A description of the specific process afforded to the 
        person under sections 3 and 4 of this Act and the outcome of 
        those processes.
    (c) Former Detainees.--The report shall include, for each person 
formerly so detained, the following:
            (1) The name and nationality of the person.
            (2) The terms of the conditional release agreement with 
        respect to the person.
            (3) A statement of the basis for the determination of the 
        United States Government that release was warranted.
            (4) The period during which the person was so detained, 
        including the release date of the person.
    (d) Classification.--The report required by this section shall be 
submitted in unclassified form, but may include a classified annex.
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