Congressional Record: February 13, 2002 (Senate)
Page S733-S745
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
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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