HR 3564 IH

To authorize the limited use of military tribunals absent a war declared by Congress in cases arising out of acts of international terrorism committed in the United States.

December 20, 2001

Mr. BARR of Georgia introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To authorize the limited use of military tribunals absent a war declared by Congress in cases arising out of acts of international terrorism committed in the United States.

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 `Terrorism Tribunal Act of 2001'.

SEC. 2. CONGRESSIONAL FINDINGS.

(a) FINDINGS- The Congress finds the following:

(1) The Authorization for Use of Military Force (Public Law 107-40) provides limited presidential authority related only to the use of force against those nations, organizations, or persons the President determines planned, authorized, committed, or aided the terrorist attacks against the United States that occurred on September 11, 2001.

(2) The Congress has not enacted a declaration of war to address all aspects of responding to the attacks of September 11, 2001.

(3) The Presidential Military Order of November 13, 2001 provides for the detention, treatment, and trial of certain non-citizens in the war against terrorism while the United States is in a state of armed conflict, not under formal declaration of war.

(4) Article 1, section 8 of the Constitution provides that the Congress shall have the power to constitute tribunals inferior to the Supreme Court.

(b) PURPOSE- It is the purpose of this Act--

(1) to support the President and the United States Armed Forces in their actions to deter and prevent acts of international terrorism;

(2) to provide the appropriate mechanisms for the United States to prosecute individuals suspected of committing or supporting acts of international terrorism; and

(3) to establish the proper statutory authority for the President to convene military tribunals absent a declaration of war.

SEC. 3. AUTHORITY TO USE MILITARY TRIBUNALS IN CASES ARISING OUT OF INTERNATIONAL TERRORISM ABSENT A WAR DECLARED BY CONGRESS.

(a) IN GENERAL- Absent a declaration of war by Congress or a specific authorization by a law enacted after the date of the enactment of this Act, a military tribunal for the trial of a case arising out of international terrorism within the United States, its territories, or possessions may be convened only in accordance with this section.

(b) CERTIFICATION OF NATIONAL SECURITY NECESSITY- A military tribunal may be convened under subsection (a) only after the President submits to Congress the President's certification that, were the case to be tried in a United States district court, the procedures available (including the procedures under the Classified Information Procedures Act (18 U.S.C. App.)) would be inadequate to protect intelligence sources and methods.

(c) PRESERVATION OF HABEAS CORPUS- With respect to an individual subject to a military tribunal specified in subsection (a), nothing in any executive or military order, rule, or regulation may adversely affect any privilege of the writ of habeas corpus under any provision of title 28, United States Code, or under any other provision of law as long as the use of the protections under those provisions do not compromise classified information or intelligence sources and methods.

SEC. 4. PROCEDURES TO BE PRESCRIBED IN UNCLASSIFIED EXECUTIVE ORDER.

The President shall prescribe the regulations, rules, and procedures for conduct of a trial by military tribunal. Those regulations, rules and procedures shall be prescribed through an unclassified Executive order shall be consistent, to the maximum extent practicable, with those applicable to trials under the Uniform Code of Military Justice. A certification under section 3(b) may not be transmitted to Congress before that Executive order is issued.

SEC. 5. CONSULTATION WITH ATTORNEY GENERAL AND JUDICIAL CONFERENCE.

(a) IN GENERAL- The regulations, rules, and procedures prescribed by the President under Section 4 shall be--

(1) developed in consultation with the Attorney General and the Judicial Conference of the United States, which shall provide recommendations on modifications to the Federal Rules of Civil Procedure applied in Federal district court litigation that are needed to properly protect classified information and intelligence sources and methods for trials authorized by this Act; and

(2) issued in conjunction with the requirements of subchapter II of chapter 5 of title 5, United States Code (commonly referred to as the Administrative Procedures Act).

(b) ANALYSIS REQUIRED- Such regulations, rules, and procedures shall be accompanied by an analysis by the Attorney General and Judicial Conference of the United States that examines the constitutional aspects of such regulations, rules, and procedures and their effect on the administration of justice by the Federal courts.