[Congressional Record Volume 148, Number 13 (Wednesday, February 13, 2002)]
[Senate]
[Pages S741-S744]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself and Mr. Durbin):
  S. 1941. 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; to the 
Committee on Armed Services.
  Mr. LEAHY. Mr. President, on November 13, 2001, President Bush signed 
a military order authorizing the use of military commissions to try 
suspected terrorists. This order stimulated an important national 
debate and led to a series of Judiciary Committee hearings with the 
Attorney General and others to discuss the many legal, constitutional, 
and policy questions raised by the use of such tribunals. Our hearings, 
and the continued public discourse, helped to clarify the scope of the 
President's order and better define the terms of the debate.
  For example, the Judiciary Committee held a hearing on November 28, 
2001, at which several legal experts challenged the validity of the 
military order. Philip Heymann of Harvard Law School, a former Deputy 
Attorney General, testified that the order was so broad that it 
amounted to a dangerous claim of executive power. In his view, the 
order improperly bypassed congressional review, undermined confidence 
in our civil justice system, and jeopardized relationships with our 
allies abroad. Retired Air Force Colonel Scott Silliman who is now at 
Duke Law School, questioned the President's authority to use military 
commissions with respect to the September 11 attacks absent authorizing 
legislation by Congress. Professor Silliman also echoed the comments of 
Professor Heymann, arguing that tribunals convened under the order 
could adversely impact our international credibility as a Nation under 
the rule of law.
  On December 4, 2001, Senator Schumer chaired another important 
hearing on the issue of military commissions. Harvard Law Professor 
Laurence Tribe testified at that hearing that ``Congress alone can 
avoid the constitutional infirmities that plague the Military Tribunal 
Order of November 13.'' Professor Tribe argued for the establishment of 
procedural guidelines to ensure the protection of defendants' due 
process rights, and called for Congress to set limits in consultation 
with the President. He cautioned that if the Administration acted on 
its own--under authority that Professor Tribe believed was 
constitutionally infirm, any convictions could later be overturned by 
the courts, with the result that dangerous individuals could be set 
free. By contrast, convictions obtained by military tribunals 
constituted under the authority of the Congress and the President 
acting together would more likely be shielded from constitutional 
challenge on appeal.
  At the same December 4 hearing, Cass Sunstein of the University of 
Chicago Law School testified that ``from the standpoint of both 
constitutional law and democratic legitimacy, it is far better if the 
President and Congress act in concert,'' adding that ``the executive 
branch stands on the firmest ground if it acts pursuant to clear 
congressional authorization.'' Professor Sunstein suggested that 
Congress limit the scope of military tribunals by allowing the use of 
military tribunals ``only on certain essential occasions.''
  Finally, on December 6, the Judiciary Committee heard from Attorney 
General Ashcroft on military commissions and a number of other 
unilateral actions taken by the Administration last fall. I believe 
that we had a constructive conversation that day, despite our 
disagreements on substantive points. The Attorney General took issue 
with anyone who dared question the thinking of the executive branch on 
such topics, charging them with ``fearmongering'' and aiding the 
terrorists. I would note, however, that several members of the 
Committee, including some of my colleagues from the other side of the 
aisle, suggested to the Attorney General that if military tribunals 
were used, they should provide a number of basic due process 
guarantees. Suggestions like these, coming from both Republicans and 
Democrats, are not intended to bait the Administration. Rather, 
constructive criticism can be, should be and has been useful in 
developing sound policy that can better protect Americans and American 
soldiers, particularly when they are serving abroad.

  The Attorney General testified at our hearing on December 6 that the 
President does not need the sanction of Congress to convene military 
commission, but I disagree. Military tribunals may be appropriate under 
certain circumstances, but only if they are backed by specific 
congressional authorization. At a minimum, as the distinguished senior 
Senator from Pennsylvania stated on this floor on November 15, ``the 
executive will be immeasurably strengthened if the Congress backs the 
President,'' Clearly, our government is at its strongest when the 
executive and legislative branches of government act in concert.
  We demonstrated this unified strength in negotiating the USA Patriot 
Act last fall. The Congress, the White House and the Department of 
Justice worked intensively for seven weeks to craft a bill that 
provided law enforcement agencies with the tools they said were needed 
to fight terrorism while preserving American values and democratic 
principles.
  In that same spirit, and with my friend, the senior Senator from 
Illinois, I am today introducing the Military Tribunal Authorization 
Act. This legislation would provide the executive branch with the 
specific authorization it now lacks to use extraordinary tribunals to 
try members of the al Qaeda terrorist network and those who cooperated 
with them.
  Specifically, this legislation authorizes the use of ``extraordinary 
tribunals'' for al Qaeda members, and for persons aiding and abetting 
al Qaeda in terrorist activities against the United States, who are 
apprehended in, or fleeing from, Afghanistan. It also authorizes the 
use of tribunals for those al Qaeda members and abettors who are 
captured in any other place where

[[Page S742]]

there is armed conflict involving the U.S. Armed Forces.
  Like the November 13 order, the Military Tribunal Authorization Act 
exempts U.S. citizens from the jurisdiction of the tribunals, as well 
as those individuals determined to be prisoners of war under the Geneva 
Convention. The bill also exempts individuals arrested while present in 
the United States, since our civilian court system is well-equipped to 
handle such cases. These exemptions are consistent with the 
Administration's treatment of Zacharias Moussaoui, the suspected 20th 
hijacker in the September 11 attacks, who is awaiting trial in Federal 
district court. A second terrorist suspect, Richard Reid, the so-called 
``shoe bomber,'' is also being tried in Federal district court. In 
fact, one of the nine charges against Reid, ``attempted wrecking of a 
mass transportation vehicle,'' is a new anti-terrorism offense that was 
created by the USA Patriot Act. Finally, the Administration has decided 
to bring Federal criminal charges against John Walker Lindh, who 
allegedly took up arms against Americans to fight with al Qaeda and the 
Taliban in Afghanistan.

  A significant question raised about the November 13 order is that it 
vests the President with plenary and unreviewable discretion to 
determine who is subject to trial by military tribunal. The President's 
order also implied that those who were arrested under its terms could 
be held indefinitely. Detainees were to receive a ``full and fair 
trial,'' but no explanation of the terms ``full'' and ``fair'' is 
offered. While the Administration has deferred providing any 
explanation to the development of regulations by the Secretary of 
Defense, requests for an opportunity to review and be consulted about 
the draft regulations have been denied. This leaves introduction of 
legislation showing how military tribunals may be constituted to 
comport with constitutional mandates and values as one of the few 
avenues to inform the process in development of regulations.
  The Military Tribunal Authorization act defines the jurisdiction and 
procedure of tribunals in a way that ensures a ``full and fair'' trial 
for anyone detained. Under the bill, the Secretary of Defense is 
charged with elaborating on the procedures that the tribunals must 
follow and publishing any draft regulations in the Federal Register.
  First, the bill makes clear that tribunals may adjudicate violations 
of the law of war, including international laws of armed conflict and 
crimes against humanity, targeted against U.S. persons. Wars have 
rules, as defined by the Geneva Conventions and other international 
agreements. These rules protect civilians from harm and define how 
captured soldiers must be treated Under the bill, individuals who 
violated those rules by targeting innocent American civilians can face 
trial in a military tribunal. In addition, individuals who committed 
crimes against humanity, such as murder, torture, or other inhumane 
acts, may face charges in a tribunal.
  Second, on the length of detention, the bill authorizes detention of 
individuals subject to military tribunals for as long as the President 
certifies that the United States is in armed conflict with al Qaeda or 
Taliban forces in Afghanistan or elsewhere, or that an investigation, 
prosecution or post-trial proceeding against the detainee is ongoing. 
The certification must be made every six months.
  Third, on the conditions of confinement, the bill requires that 
detainees be ``treated humanely,'' which is consistent with the Body of 
Principles for the Protection of All Persons under Any Form of 
Detention or Imprisonment, a resolution adopted by the United Nations 
General Assembly in 1988. this includes adequate food, water, shelter, 
clothing and medical treatment, hygienic conditions, the necessary 
means of personal hygiene, and the free exercise of religion. Detention 
determinations and the conditions of detention are subject to review by 
the Court of Appeals for the D.C. Circuit.
  Fourth, the bill incorporates basic due process guarantees, including 
the right to independent counsel. In imposing this requirement, I am 
not suggesting that suspected terrorists deserve special treatment. 
Rather, the bill follows well-established standards for indigent 
defense. In the first of its ``Ten Commandments'' of public defense 
programs, the Department of Justice calls for full independence of 
defense counsel and judicial functions. The department's ``Ten 
Commandments'' also require that counsel's ability, training, and 
experience must be matched to the complexity of the case. Providing 
independent counsel and judicial review is critical to ensuring that 
any convictions are free from political influence. An independent 
process with experienced counsel will also safeguard against otherwise 
valid convictions being overturned for violations of due process or 
incompetent counsel.

  Under the terms of this bill, tribunals would be required to apply 
reasonable rules of evidence to ensure that material admitted at trial 
was of probative value. Defendants would be presumed innocent until 
proven guilty, and proof of guilt must be established beyond a 
reasonable doubt. Defendants may not be compelled to testify against 
themselves. Finally, defendants could appeal their convictions and 
sentences to a higher tribunal, the U.S. Court of Appeals for the Armed 
Forces.
  These procedures do not, as some have claimed, provide greater 
protections to suspected terrorists than we offer our own soldiers. 
These are, rather, the very basic guarantees provided under various 
sources of international law, including the Geneva Conventions, the 
International Covenant on Civil and Political Rights, the Universal 
Declaration of Human Rights, and the Statute of the International 
Criminal Tribunal for former Yugoslavia, among others. Several of the 
procedural protections are also drawn from the U.S. Rules of Courts-
Martial and the Military Rules of Evidence. In addition, the trial 
procedure statute of the Uniform Code of Military Justice, which is 
cited in the President's military order, recommends that the President 
apply to military commissions the principles of law and rules of 
evidence that are generally recognized by the federal district courts.
  I submit for the record a list the international conventions that 
serve as sources for the eighteen procedural protections included in my 
bill. As the ABA resolution urges, in establishing military tribunals, 
we should ``give full consideration to the impact . . . as precedents 
in . . . the use of international legal norms in shaping other nations' 
responses to future acts of terrorism.'' Respecting those international 
legal norms, will redound to the benefit of Americans.
  It is important to note that last week the President reevaluated his 
position on a related issue. He decided to apply the Geneva Conventions 
to Taliban captives. This decision sends a signal to the world that the 
United States respects the Geneva Conventions and expects them to be 
applied to American soldiers captured overseas. I commend Secretary 
Powell, who supported this application of the Geneva Conventions. I 
also commend Secretary Rumsfeld, whose draft rules on military 
commissions contained a number of important procedural protections. 
Both Secretaries Powell and Rumsfeld have worked to bring the original 
military order and subsequent decisions over detention within the 
framework of international law. I urge the Administration to follow 
this example of flexibility and inclusiveness by working with Congress 
to establish tribunals that are authorized by statute and consistent 
with international law.
  Finally, the bill comes down squarely on the side of transparency in 
government by providing that tribunal proceedings should be open and 
public, and include public availability of the transcripts of the trial 
and the pronouncement of judgment. The only exceptions are for 
demonstrable reasons of national security or the necessity to secure 
the safety of observers, witnesses, tribunal judges, counsel or other 
persons.
  In sum, the Military Tribunal Authorization Act establishes a legal 
framework for proceedings that are truly ``full and fair.'' The 
provisions of this bill track very closely with recommendations arrived 
at independently by the American Bar Association and issued on February 
4, 2002. The ABA calls on the executive branch to provide due process 
guarantees similar to those used in courts-martial, including a number 
of rights included in this

[[Page S743]]

bill. It also urged the Administration to work with Congress in 
defining the rules for military commissions.
  Passage of authorizing legislation would ensure the constitutionality 
of military tribunals and protect any convictions they might yield, 
while at the same time showing the world that we will fight terrorists 
without sacrificing our principles. We can also show by example how we 
expect our soldiers and nationals to be treated if they are swept into 
foreign courts or tribunals.
  Our government is at its strongest when its executive and legislative 
branches act in concert. I provided earlier drafts of this legislation 
to the Attorney General and Secretary of Defense, but received no 
response. With the introduction of this bill, I again invite the 
Administration's cooperation and comment.
  I ask unanimous consent that the text of the bill and the sectional 
analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1941

       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 
     Quaeda 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

[[Page S744]]

     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.
                                  ____


    Military Tribunal Authorization Act of 2002--Section-by-Section 
                                Analysis

       Sec. 1. Short Title. The Military Tribunal Authorization 
     Act of 2002.
       Sec. 2. Findings. This section outlines twelve findings, 
     including that the al Qaeda terrorist organization and its 
     leaders committed unlawful acts against the United States on 
     September 11, 2001 and on prior occasions; the U.S. is 
     justified in exercising its right to self-defense under 
     international law and the U.N. Charter; the Congress 
     authorized the President to use all necessary force against 
     those who committed, aided or abetted the September 11 
     attacks in order to prevent future attacks, within the 
     meaning of the War Powers Resolution; military trials may be 
     appropriate to protect public safety, to protect classified 
     information used as evidence, and to protect national 
     security interests; Article I, section 8 of the Constitution 
     provides that the Congress, not the President, has the power 
     to constitute tribunals and to define and punish offenses 
     against the law of nations; and congressional authority is 
     necessary to establish extraordinary tribunals to adjudicate 
     offenses arising from the September 11 attacks.
       Sec 3. Establishment of Extraordinary Tribunals. The 
     President is authorized to establish tribunals to try non-
     U.S. persons who are al Qaeda member (and persons aiding and 
     abetting al Qaeda in terrorist activities against the United 
     States); are apprehended in Afghanistan, apprehended fleeing 
     from Afghanistan, or apprehended in or fleeing from any other 
     place where there is armed conflict involving the U.S. Armed 
     Forces; and are not prisoners of war, as defined by the 
     Geneva Conventions. Tribunals may adjudicate violations of 
     the laws of war targeted against U.S. persons. The Secretary 
     of Defense is charged with promulgating rules of evidence and 
     procedure for the tribunals.
       Sec. 4. Procedural Requirements. Rules for tribunals shall 
     require (1) an independent and impartial proceeding; (2) that 
     the accused be informed of the charges against him; (3) that 
     proceedings be conducted with simultaneous translation for 
     non-English speakers; (4) that the accused be shown the 
     evidence against him; (5) that the accused be present at 
     trial if he so chooses; (6) that the accused have the right 
     to be represented by counsel; (7) that the accused have the 
     right to respond to the evidence, and to obtain exculpatory 
     evidence from the prosecution; (8) that the accused have the 
     right to confront and cross-examine adverse witnesses, and to 
     offer witnesses; (9) an expeditious trial and disposition; 
     (10) that the rules of evidence admit only reliable 
     information of probative value; (11) that the accused be 
     afforded all necessary means of defense; (12) that 
     convictions be based only upon proof of individual 
     responsibility; (13) that a conviction may not be based on an 
     act, offense, or omission that was not an offense under law 
     when committed; (14) that the penalty for conviction not be 
     greater than it was when the offense was committed; (15) that 
     the accused is presumed innocent until proven guilty, and 
     that proof of guilt be established beyond a reasonable doubt; 
     (16) that the accused may not be compelled to confess guilt 
     or testify against himself; (17) that trials to be open and 
     public and include public access to transcripts and 
     pronouncement of judgment, with the exceptions described 
     below; and (18) that convicted persons be informed of 
     available remedies and appeals. The bill follows the 
     Uniform Code of Military Justice in requiring a unanimous 
     vote for imposition of the death penalty.
       Trial proceedings will generally be accessible to the 
     public with limited exceptions for demonstrable public safety 
     concerns. The bill allows for evidence to be kept secret from 
     the public where disclosure may compromise national security 
     or intelligence sources.
       Convictions may be appealed to the U.S. Court of Appeals 
     for the Armed Forces. Any decisions of that court regarding 
     proceedings of tribunals are subject to review by the U.S. 
     Supreme Court by writ of certiorari.
       Sec. 5. Detention. This section authorizes detention of 
     individuals who are subject to a tribunal under section 3. In 
     order to detain an individual under the authority of this 
     section, the President must certify that the U.S. is in armed 
     conflict with al Qaeda or Taliban forces in Afghanistan or 
     elsewhere, or that an investigation, prosecution or post-
     trial proceeding against the detainee is ongoing. This 
     certification must be made every 6 months.
       Evidence that may establish that an accused is not subject 
     to detention under this section shall be disclosed to the 
     accused, except that a summary of such evidence will be 
     provided if the Attorney General certifies that disclosure 
     would cause certain identifiable harms. Detentions under this 
     section may be appealed to the U.S. Court of Appeals for the 
     D.C. Circuit.
       This section also defines the conditions of detention, 
     requiring that detainees be treated humanely. Humane 
     treatment includes adequate food, water, shelter, clothing 
     and medical treatment, hygienic conditions, the necessary 
     means of personal hygiene, and the free exercise of religion. 
     Detention determinations and the conditions of detention are 
     subject to review by the Court of Appeals for the D.C. 
     Circuit.
       Sec. 6. Sense of the Congress. This section calls for the 
     President to seek the cooperation of U.S. allies and other 
     nations in the investigations and prosecutions of those 
     responsible for the September 11 attacks. It also calls for 
     the President to use multilateral institutions to the fullest 
     extent possible in carrying out such investigations and 
     prosecutions.
       Sec. 7. Definitions. This section defines the terms, 
     ``September 11, 2001 attacks on the U.S.,'' and ``U.S. 
     person.'' The latter takes its meaning from the definition of 
     the term ``U.S. person'' in the Foreign Intelligence 
     Surveillance Act of 1978, and includes a citizen of the 
     United States or an alien lawfully admitted for permanent 
     residence.
       Sec. 8. Termination of Authority. Authority under the act 
     terminates on December 31, 2005.
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