To affirm the authority of the executive branch to detain foreign nationals as unlawful combatants, to enable a person detained as an unlawful combatant to challenge the basis for that detention and to receive a disposition within 2 years, to provide for the President to establish military tribunals to try such persons, and for other purposes.

June 22, 2005

Mr. SCHIFF (for himself, Mr. UDALL of Colorado, and Mr. OWENS) introduced the following bill; which was referred to the Committee on Armed Services, and in addition to the Committee on the Judiciary, 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 affirm the authority of the executive branch to detain foreign nationals as unlawful combatants, to enable a person detained as an unlawful combatant to challenge the basis for that detention and to receive a disposition within 2 years, to provide for the President to establish military tribunals to try such persons, 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 `Guantanamo Detainees Procedures Act of 2005'.

SEC. 2. AUTHORITY OF EXECUTIVE BRANCH TO DETAIN PERSONS COVERED BY THIS ACT AS UNLAWFUL COMBATANTS.

(a) Finding- Congress finds that the executive branch has authority to detain persons covered by this Act as unlawful combatants.

(b) Persons Covered by This Act- In this Act, the term `person covered by this Act' means an individual who--

(1) is accused of knowingly--

(A) planning, authorizing, committing, aiding, or abetting one or more terrorist acts against the United States; or

(B) being part of or supporting forces engaged in armed conflict against the United States;

(2) is not a United States person or lawful permanent resident; and

(3) is not a prisoner of war within the meaning of the Geneva Convention Relative to the Treatment of Prisoners of War, done on August 12, 1949.

SEC. 3. RIGHT OF PERSON DETAINED AS UNLAWFUL COMBATANT OR ON SIMILAR BASIS TO CHALLENGE THAT BASIS.

(a) In General- Whenever the United States detains a person covered by this Act on the basis of a determination that the person can be detained as an unlawful combatant or can be detained on any similar basis, the person is entitled to a hearing under this section as expeditiously as practicable but not later than 6 months after the date on which the United States first made the determination.

(b) Requirements for Hearing- A hearing required by subsection (a) must meet the following requirements:

(1) The hearing officer is an active member of one of the Courts of Criminal Appeals of the Armed Forces.

(2) The hearing officer has authority to decide de novo whether the basis of a determination under subsection (a) is valid and to grant appropriate relief if the hearing officer decides that the basis is invalid.

(3) The hearing officer is impartial in fact, and is in a position independent from--

(A) the individuals who first determined that the person can be detained; and

(B) the individuals on whose orders the person is being detained.

(4) The person is provided with access to the evidence that tends to support the determination that the person can be detained.

(5) The person is provided with an opportunity to address the hearing officer, and is provided with an interpreter for that purpose.

(c) Administrative Review- The Secretary of Defense shall conduct administrative review of the activities of a hearing officer under this section.

SEC. 4. RIGHT OF PERSON DETAINED TO DISPOSITION WITHIN 2 YEARS.

(a) In General- Whenever the United States detains a person covered by this Act on the basis of a determination that the person can be detained as an unlawful combatant or can be detained on any similar basis, the person is entitled to a disposition under this section not later than 2 years after the date on which the United States first made the determination.

(b) Requirements for Disposition- A disposition under this section is any one of the following:

(1) Repatriation to the governing authority in the area in which the person was first detained or the person's country of origin, except where there are substantial grounds to believe that the person would be in danger of being subjected to torture.

(2) The commencement, by formal charges, of prosecution in an appropriate court, which may include an extraordinary tribunal under section 5 of this Act, an international criminal tribunal, or a district court of the United States.

(c) Extension-

(1) CERTIFICATION- The period required by subsection (a) for the repatriation of the person or the commencement of formal charges may be extended if the Secretary of Defense certifies, in writing, with respect to the person that the Secretary of Defense has determined that the person is a continuing threat to the national security of the United States due to a likelihood that the person will undertake terrorist or belligerent acts against the United States based on the person's past conduct, level of authority within the group or organization, statement and actions during confinement, age and health, psychological profile, and other pertinent factors, and the repatriation of the person or the commencement of formal charges will compromise the national security of the United States by curtailing intelligence gathering from the person, jeopardize intelligence sources necessary to prosecute the person, or other extraordinary circumstances justify the extension.

(2) DETAILED BASIS- A certification under this subsection must include a detailed account of the factual basis for that determination.

(3) ACCESS TO CERTIFICATION- A person covered by a certification under this subsection is entitled to an unclassified copy of the certification.

(4) DURATION OF CERTIFICATION- A certification under this subsection is effective for not more than 1 year. The Secretary may make successive certifications with respect to a person so long as each additional certification is made while an imminent threat to national security continues to be posed by the group or organization in which the person is a member or by other persons associated with, or acting on behalf of, the group, organization, or person.

(5) JUDICIAL REVIEW- The United States Court of Appeals for the Armed Forces shall provide judicial review with respect to any issue under this subsection, including whether the determination of the Secretary under paragraph (1) is justified by the factual basis under paragraph (2).

SEC. 5. EXTRAORDINARY TRIBUNALS.

(a) Authority- The President is hereby authorized to establish tribunals for the trial of persons covered by this Act.

(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 or residents.

(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. 6. PROCEDURAL REQUIREMENTS.

(a) In General- The rules prescribed for a tribunal under section 5(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 translation or interpretation.

(4) That the evidence supporting each alleged offense be given to the accused, except as provided in subsection (d).

(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 not be based upon an act, offense, or omission that was not an offense under law when it was committed.

(13) That the penalty for an offense not be greater than it was when the offense was committed.

(14) That the accused--

(A) be presumed innocent until proven guilty, and

(B) not be found guilty except upon proof beyond a reasonable doubt.

(15) That the accused not be compelled to confess guilt or testify against himself.

(16) 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.

(17) 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.

(18) That a preliminary proceeding be held within 30 days of detention to determine whether there is jurisdiction under section 4 over the person and the offenses charged. The preliminary proceeding may be continued for an additional 30 days for good cause shown.

(19) That the privilege of the writ of habeas corpus under title 28, United States Code, or under any other provision of law not be infringed.

(20) That the tribunal be comprised of a military judge and not less than five members.

(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 5 is requested to adjudge the death penalty.

(c) Public Proceedings- Any proceedings conducted by a tribunal established under section 5, 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 5 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;

(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 5 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, and the convictions and sentences of such 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 5 shall be subject to review by the Supreme Court by writ of certiorari.

SEC. 7. ANNUAL REPORT ON PERSONS COVERED BY THIS ACT WHO ARE DETAINED AS UNLAWFUL COMBATANTS BY THE UNITED STATES.

(a) Report Required- The Secretary of Defense shall submit to Congress an annual report on persons covered by this Act who are detained as unlawful combatants by the United States.

(b) Current Detainees- The report shall include, for each person currently so detained, the following:

(1) The name and nationality of the person.

(2) The period during which the person has been so detained.

(3) A description of the specific process afforded to the person under sections 3 and 4 of this Act and the outcome of those processes.

(c) Former Detainees- The report shall include, for each person formerly so detained, the following:

(1) The name and nationality of the person.

(2) The terms of the conditional release agreement with respect to the person.

(3) A statement of the basis for the determination of the United States Government that release was warranted.

(4) The period during which the person was so detained, including the release date of the person.

(d) Classification- The report required by this section shall be submitted in unclassified form, but may include a classified annex.

END