[Congressional Record Volume 148, Number 91 (Tuesday, July 9, 2002)]
[House]
[Pages H4402-H4404]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             INTRODUCTION OF MILITARY TRIBUNALS ACT OF 2002

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from California (Mr. Schiff) is recognized for 5 minutes.
  Mr. SCHIFF. Mr. Speaker, today I will be introducing the Military 
Tribunals Act of 2002 to provide congressional authorization for 
tribunals to try unlawful combatants against the United States in the 
war on terrorism.
  Article I, section 8 of the Constitution provides that it is the 
Congress that has the power to constitute tribunals inferior to the 
Supreme Court to define and punish offenses against the law of nations.
  Up until now, there has been no congressional authorization for 
military tribunals. The formation of these tribunals, thus far, has 
been performed solely by executive order of the President with 
clarifying regulations promulgated by the Secretary of Defense.
  Some would argue, not implausibly, that despite the clear language of 
article I, section 8, congressional authorization is not necessary; 
that as President and commander in chief, he has the authority, all the 
authority he needs, to regulate the affairs of the military, and this 
power extends to the adjudication of unlawful combatants. Ultimately, 
if the Congress fails to act, any adjudications of the military 
tribunals will be challenged in court on the basis that the tribunals, 
having been improperly constituted, the sentences cannot stand.
  Through this bill, we can remove any legal cloud that would overhang 
these prosecutions. For one thing the Supreme Court has made abundantly 
clear is that the power of the executive when it acts in concert with 
the Congress is at its greatest ebb. But there is another reason, an 
even more compelling reason, for Congress to act, and that is the 
separation of powers.
  No single branch should have the authority on its own to establish 
jurisdiction for a tribunal, to determine the charges, to determine 
indeed what defendants should be brought before that tribunal, to 
determine process, and to serve as judge, jury and potential 
executioner. As a former prosecutor, I would not have wanted such 
unbridled authority, nor do I believe it is appropriate here.
  The Military Tribunals Act of 2002 establishes the jurisdiction of 
these new courts over noncitizens, non-U.S. residents, unlawful 
combatants, al-Qaeda members, and those working in concert with them to 
attack the United States. It preserves the right of habeus corpus, and 
appeal, and the basic rights of due process. It also protects the 
confidentiality of sources of information and classified information. 
And it also protects ordinary citizens from being exposed to the 
dangers of trying these suspects.
  Perhaps most important, in the context of a war without clear end, 
against an enemy without uniform or nation, the bill requires the 
President to report to Congress on who is detained for how long and on 
what basis.

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  Mr. Speaker, in sum, the Military Tribunal Act of 2002 gives the 
Commander in Chief the power to try unlawful combatants, provides the 
confidence these judgments will be upheld, establishes clear rules of 
due process, maintains our check and balances, and permits Congress to 
effectively oversee the war powers as the Constitution and the 
preservation of liberty requires.
  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.
  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 discussions 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 combatants, 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 parties 
in other languages as necessary. The accused would have the opportunity 
to be present at trial. 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 which 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.

[[Page H4404]]

  Reports to congress: Without protection 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 trail 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.

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