[Congressional Record Volume 148, Number 91 (Tuesday, July 9, 2002)]
[Extensions of Remarks]
[Pages E1211-E1212]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         THE INTRODUCTION OF THE MILITARY TRIBUNALS ACT OF 2002

                                 ______
                                 

                          HON. ADAM B. SCHIFF

                             of california

                    in the house of representatives

                         Tuesday, July 9, 2002

  Mr. SCHIFF. Mr. Speaker:


                          SEPARATION OF POWERS

  Our great nation was founded on the basic principles of liberty and 
justice for all. And one of the founding principles of our government 
is a separation of powers, and a system of checks and balances.
  We set up our government this way for a reason. The delegates to the 
Constitutional Convention faced a difficult challenge--to create a 
strong, cohesive central government, while also ensuring that no 
individual or small group in the government would become too powerful. 
They formed a government with three separate branches, each with its 
own distinct powers.
  Without this separation of powers, any one branch of government could 
have the power to establish a tribunal, decide what charges would be 
covered and what due process would be afforded, and also serve as judge 
and jury. The intent of the framers was to avoid these kinds of 
imbalances of power--to provide checks and balances.
  That is why Congress must have a role in setting up military 
tribunals.


                     THE ROLE OF MILITARY TRIBUNALS

  As the United States and its allies continue to engage in armed 
conflict with al Qaeda and the Taliban, military tribunals provide an 
appropriate forum to adjudicate the international law of armed 
conflict. While it may sound incongruous to have a justice system to 
deal with crimes of war, this process ensures adherence to certain 
international standards of wartime conduct. In order to garner the 
support of the community of nations, military trials must provide basic 
procedural guarantees of fairness, consistent with the international 
law of armed conflict and the International Covenant on Civil and 
Political Rights.


                      CONSTITUTIONAL JUSTIFICATION

  Congressional authorization is necessary for the establishment of 
extraordinary tribunals to adjudicate and punish offenses arising from 
the September 11, 2001 attacks, or future al Qaeda terrorist attacks 
against the United States, and to provide a clear and unambiguous legal 
foundation for such trials.
  This power is granted by the U.S. Constitution, which gives Congress 
the authority to constitute tribunals, define and punish offenses 
against the Law of Nations, and make rules concerning captures.
  While Congress has authorized the President to use all necessary and 
appropriate force against those nations, organizations, or persons that 
he determines to have planned, authorized, committed, or aided the 
terrorist attacks or harbored such organizations or persons, Congress 
has yet to expressly authorize the use of military tribunals.


                           CRAFTING THE BILL

  In November, 2001, the President issued a military order which said 
non-U.S. citizens arrested at home or abroad could be tried by military 
tribunals. In March, 2002, the Department of Defense announced rules 
for military trials for accused terrorists.
  These rules made no provision for the writ of habeas corpus, or an 
adequate appeals process. In addition, there was no accounting of 
persons who were being detained.
  Believing that Congress should play a critical role in authorizing 
military tribunals, I began discussing this issue with legal 
organizations, military law experts, and legal scholars. The result of 
these discussion is the Military Tribunals Act of 2002, which I am 
introducing today.


                             WHO IS COVERED

  My bill will give the President the authority to carry out military 
tribunals to try individuals who are members of al Qaeda or members of 
other terrorist organizations knowingly cooperating with or aiding or 
abetting persons who attack the United States.


                          UNLAWFUL COMBATANTS

  The Geneva Conventions limit the ways regular soldiers who surrender 
or are captured may be treated, but there is a very clear distinction 
made between lawful enemy combatants (a member of a standing/recognized 
army), who would not be subject to a tribunal, and unlawful enemy 
combatants (civilians who take up arms) who would.
  Currently, there are more than 500 persons who are being detained at 
Guantanamo Bay. They have been classified by the Department of Defense 
as unlawful enemy combatnats, and each one could potentially be subject 
to a military tribunal. But without legislative backing, any military 
tribunal adjudication of guilt may later be challenged on the basis 
that the tribunals were not authorized by Congress. Congressional 
action would make it abundantly clear that military tribunals are an 
appropriate venue for trying unlawful enemy combatants. Spelling out 
the requirements for a military tribunal would ensure that sentences, 
when they are handed down, could be defended from judicial 
invalidation.


                              DUE PROCESS

  My bill would ensure that the basic tenets of due process are adhered 
to by a military tribunal. The tribunal would be independent and 
impartial. The accused would be presumed innocent until proven guilty, 
and would only be found guilty if there was proof beyond a reasonable 
doubt. The accused would be promptly notified of alleged offenses. The 
proceedings would be made available to relevant

[[Page E1212]]

parties in other languages as necessary. The accused would have the 
opportunity to be present at trial. The accused would have a right to 
be represented by counsel. The accused have the opportunity to 
confront, cross-examine, and offer witnesses. The proceedings would be 
expeditious. The accused would be afforded all necessary means of 
defense. A conviction would be based on proof that the individual was 
responsible for the offense. A conviction could not be upheld on an act 
that was not an unlawful offense when it was committed. The penalty for 
an offense would not be greater than it was when the offense was 
committed. The accused would not be compelled to confess guilt or 
testify against himself. A convicted person would be informed of 
remedies and appeals processes. A preliminary proceeding would be held 
within 30 days of detention to determine whether a trial may be 
appropriate. The tribunal would be comprised of a military judge and 
not less than five members. The death penalty would be applied only by 
unanimous decision. The accused would have access to evidence 
supporting each alleged offense, except where disclosure of the 
evidence would cause identifiable harm to the prosecution of military 
objectives, and would have the opportunity to both obtain and present 
exculpatory evidence, and to respond to such evidence.


                             HABEAS CORPUS

  Finally, the writ of habeas corpus would not be infringed, as it is a 
critical tenet of our justice system. Every person should be entitled 
to a court determination of whether he is imprisoned lawfully and 
whether or not he should be released from custody. This basic tenet 
dates back to 1215 when it stood in the Magna Carta as a critical 
individual right against arbitrary arrest and imprisonment.
  Courts have referred to habeas corpus as ``the fundamental instrument 
for safeguarding individual freedom against arbitrary and lawless state 
action.'' Without judicial review, the police can arrest people without 
warrants and jail people without trials.
  U.S. Senator Arlen Specter has noted, ``Simply declaring that 
applying traditional principles of law or rules of evidence is not 
practical is hardly sufficient. The usual test is whether our national 
security interests outweigh our due process rights, and the 
administration has not made the case.''
  A careful reading of the President's military order reveals that 
``military tribunals shall have exclusive jurisdiction, and the 
individual shall not be privileged to seek any remedy or maintain any 
proceeding, directly or indirectly . . . in any court of the United 
States or any state thereof, any court of any foreign nation, or any 
international tribunal.''


                            APPEALS PROCESS

  Another critical protection we must retain in these trials is that of 
an appeals process. My bill calls for the Secretary of Defense to 
promptly review convictions by such tribunals to ensure that the 
procedural requirements of a full and fair hearing have been met. It 
also calls for the United States Court of Appeals for the Armed Forces 
established under the Uniform Code of Military Justice to review the 
proceedings, convictions, and sentences of such tribunals. Finally, the 
Supreme Court would review the decisions of the United States Court of 
Appeals for the Armed Forces. This is the most appropriate system of 
judicial review, especially since the U.S. Court of Appeals for the 
Armed Forces would not have to appoint special masters or magistrates 
to do the necessary fact finding.


                           PUBLIC PROCEEDINGS

  We gain the confidence of our citizenry by ensuring that trial 
proceedings are open to the public. My bill would require trial and 
appeal proceedings to be accessible to the public, while securing the 
safety of observers, witnesses, tribunal judges, counsel, and others. 
Evidence available from an agency of the Federal Government, however, 
may be kept secret from the public if such evidence would harm the 
prosecution of military objectives or intelligence sources or methods.


                               DETENTION

  The bill allows for the Secretary of Defense to detain a person who 
is subject to a tribunal consistent with the international law of armed 
conflict. However these detentions would only be authorized while a 
state of armed conflict continues, or while a prosecution or a post-
trial proceeding is ongoing. Under the Military Tribunals Act of 2002, 
the United States District Court for the District of Columbia would 
have exclusive jurisdiction to ensure that the requirements for 
detaining an accused are satisfied.
  And while an accused is held, the detainee shall be treated humanely, 
without any adverse distinction based on race, color, religion, gender, 
birth, wealth or any similar criteria. Adequate food, drinking water, 
shelter, clothing, and medical treatment shall be provided. Finally, a 
detainee's right to the free exercise of religion would not be 
infringed.


                          REPORTS TO CONGRESS

  Without protections and reporting requirements in place, persons 
detained for an indefinite amount of time would have no recourse. 
Currently in America, the total number of persons detained by both the 
Department of Justice and the Department of Defense is unknown. In many 
cases, there is little information, if any, available about who has 
been detained and why. My bill requires the President to report 
annually to Congress on the use of the military tribunal authority. 
Each such report would include information regarding each person 
subject to, or detained pursuant to, a military tribunal, and each 
person detained pursuant to any actual or planned act of terrorism, who 
has not been referred for trial in connection with that act of 
terrorism to a criminal court or to a military tribunal. With this 
provision, we can significantly reduce the danger that due process 
might be evaded by simply failing to bring detainees before a tribunal 
for trial.


                               CONCLUSION

  There is some debate about the necessity of Congressional input in 
the establishment of military tribunals. But there is no doubt that 
legislative branch input can provide indispensable safeguards, such as 
an appeal to an independent entity, that the executive branch simply 
cannot provide on its own. By exercising Congress' role in the process, 
we will ensure that our justice system remains a beacon for the rest of 
the world, where due process is protected, and the accused are afforded 
basic protections.
  We are living in an extraordinary time, a difficult time. But we are 
defined as a nation by how we handle these difficult times. Our 
government's words and deeds are important, not only for the legal 
precedents we set, but also for the message we send to our global 
neighbors. During this, the most significant international crisis of 
our day, we have an opportunity to show the world the true meaning of 
justice, liberty, and the freedoms upon which America was founded.

                          ____________________