S 1941 IS

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.

February 13, 2002

Mr. LEAHY (for himself and Mr. DURBIN) introduced the following bill; which was read twice and referred to the Committee on Armed Services

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.

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 Qaeda 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 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.