[Congressional Record Volume 147, Number 173 (Thursday, December 13, 2001)]
[Extensions of Remarks]
[Page E2285]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       THE FOREIGN TERRORIST MILITARY TRIBUNAL AUTHORIZATION ACT

                                 ______
                                 

                            HON. ZOE LOFGREN

                             of california

                    in the house of representatives

                      Wednesday, December 12, 2001

  Ms. LOFGREN. Mr. Speaker, Congresswoman Jane Harman and I support our 
Commander-in-Chief in the fight against terrorism. We agree that we may 
need to convene military tribunals and the bill that we are introducing 
today would specifically authorize that.
  Article 1, Section 8 of our Constitution provides that Congress shall 
constitute tribunals inferior to the Supreme Court and that Congress 
shall make rules concerning captures on land and water in time of war.
  On September 11th, international criminals terrorized and killed many 
innocent Americans. These murderers must face swift and unyielding 
justice if they are not killed in combat and, if we are going to try 
combatants on Afghan soil, it is likely that a military tribunal is the 
right forum.
  Congress needs to act so that there will be no question that this is 
legal.
  But, as the Supreme Court pointed out in Ex Parte Milligan, 71 U.S. 
2, 18 L. Ed. 281 (1866), when courts are operational here in America 
they need to be used for the trial of criminals. That's why this bill 
Iimits tribunals to those being prosecuted abroad. If Osama bin Laden 
is captured overseas, he will face a military tribunal. If your 
neighbor is arrested tomorrow in San Jose, he will go to court like any 
other accused person in America. It is important to note that American 
law already provides for the safekeeping of classified information and 
the security of trials. The Classified Information Procedures Act 
(CIPA) has been part of American law for two decades. It rightly 
insures that criminal prosecution won't jeopardize national security.
  The President's recent military order also appeared to suspend the 
right of the accused to appeal to courts. In essence, this would 
suspend the Writ of Habeas Corpus. The Order stated that any individual 
subject to a military tribunal ``shall not be privileged to seek any 
remedy or maintain any proceeding, directly or indirectly, or to have 
any such remedy or proceeding sought on the individual's behalf, in (i) 
any court of the United States, or any State thereof, (ii) any court of 
any foreign nation, or (iii) any international tribunal.''
  We are a nation of laws. The most important, our original law, is our 
Constitution.
  Article 1, Section 9 provides that the writ of Habeas Corpus may only 
be suspended when the public safety may require it and then only in 
cases of rebellion or invasion. Suspension require Congress to act. It 
is not the President's prerogative. Even President Lincoln, who felt 
the need to suspend Habeas during the civil war, had to seek and obtain 
approval from Congress to do so. We have expressly preserved habeas 
corpus in our bill.
  We have also required the President to report to the Congress about 
the use of these tribunals and on a classified basis if necessary.
  There is a sunset provision for these extraordinary procedures. The 
use of military tribunals expires on December 31, 2005 with the use of 
force authorization that Congress granted the President. As with the 
Use of Force authorization itself, if it is necessary to take further 
military action, Congress will need to act to extend the war as well as 
the war tribunals.
  We need to make this bill the law so that there will be no question 
that military tribunals are valid.
  We also need to once again mobilize America behind our Commander in 
Chief in the prosecution of the war against terrorists.
  I believe this bill would receive overwhelming support in Congress 
and we hope it can be swiftly considered.

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