To authorize the President to detain an enemy combatant who is a United States person or resident who is a member of al Qaeda or knowingly cooperated with members of al Qaeda, to guarantee timely access to judicial review to challenge the basis for a detention, to permit the detainee access to counsel, and for other purposes.

March 3, 2005

Mr. SCHIFF 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 President to detain an enemy combatant who is a United States person or resident who is a member of al Qaeda or knowingly cooperated with members of al Qaeda, to guarantee timely access to judicial review to challenge the basis for a detention, to permit the detainee access to counsel, 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 `Detention of Enemy Combatants Act'.

SEC. 2. FINDINGS.

The 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 U.S.S. COLE (DDG-67), 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) 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.

(4) The United States is justified in exercising its right of self-defense pursuant to international law and the United Nations Charter.

(5) 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.

(6) The United States and its allies are engaged in armed conflict with al Qaeda.

(7) Al Qaeda and its terrorist allies have a presence in more than 60 nations around the world, including the United States. United States citizens and residents have been detained as enemy combatants in the struggle against al Qaeda.

(8) The term `enemy combatant' has historically referred to all of the citizens of a state with which the Nation is at war, and who are members of the armed force of that enemy state. Enemy combatants in the present conflict, however, come from many nations, wear no uniforms, and use unconventional weapons. Enemy combatants in the war on terrorism are not defined by simple, readily apparent criteria, such as citizenship or military uniform. And the power to name a citizen as an `enemy combatant' is therefore extraordinarily broad.

(9) There is precedent for detaining American citizens as enemy combatants. In Ex Parte Quirin, 317 U.S. 1 (1942), 2 of the 8 German soldiers who planned acts of sabotage within the United States claimed American citizenship. Detention of enemy combatants who are United States citizens is appropriate to protect the safety of the public and those involved in the investigation and prosecution of terrorism, to facilitate the use of classified information as evidence without compromising intelligence or military efforts, to gather unimpeded vital information from the detainee, and otherwise to protect national security interests.

(10) The Executive must be allowed broad latitude to establish by regulation and Executive order the process, standards, and conditions in which a United States citizen or lawful resident may be detained as an enemy combatant. Courts must give broad deference to military judgment concerning the determination of enemy combatant status, POW status, and related questions.

(11) Section 4001(a) of title 18, United States Code, provides that `no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress'. Section 4001 was designed to repeal the Emergency Detention Act of 1950, and ensure that there was a statutory basis for any detention. As Chief Justice Burger wrote in Howe v. Smith, 452 U.S. 473 (1981), `the plain language of section 4001(a) proscribes detention of any kind by the United States, absent a congressional grant of authority to detain'.

(12) By this Act, the Congress authorizes the President to detain enemy combatants who are United States persons or residents who are members of al Qaeda, or knowingly cooperated with members of al Qaeda in the planning, authorizing, committing, aiding, or abetting of one or more terrorist acts against the United States.

(13) During wartime, a nation must take extraordinary steps to protect itself, including measures that would never be acceptable during peacetime. Nonetheless, `the Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.' Ex Parte Milligan.

(14) Nothing in this Act permits the Government, even in wartime, to detain American citizens or other persons lawfully in the United States as enemy combatants indefinitely without charges and hold them incommunicado without a hearing and without access to counsel on the basis of a unilateral determination that the person may be connected with an organization that intends harm to the United States. The Supreme Court has held that a citizen held in the United States as an enemy combatant must be given a meaningful opportunity to challenge the factual basis for that detention before a neutral decisionmaker. Hamdi v. Rumsfeld, 542 U.S. 1 (2004). The Supreme Court has held that even enemy aliens within the United States are entitled to habeas review of their conviction. Ex Parte Quirin, 317 U.S. 1 (1942); Johnson v. Eisentrager, 339 U.S. 763 (1950).

(15) The validity of the detention of citizens as enemy combatants may be challenged by a writ of habeas corpus. As the right of habeas corpus may be effectively nullified by denial of the assistance of counsel, a citizen detained as an enemy combatant may not be indefinitely denied access to counsel.

(16) The Congress has a responsibility for maintaining vigorous oversight of detention of United States citizens and lawful residents to assure that such detentions are consistent with due process.

SEC. 3. DETENTION OF ENEMY COMBATANTS.

(a) Authority- A United States person or resident may be detained as an enemy combatant in accordance with this Act if the United States person or resident is a member of al Qaeda, or knowingly cooperated with a member of al Qaeda in the planning, authorizing, committing, aiding, or abetting of one or more terrorist acts against the United States. Nothing in this Act shall apply to a United States person or resident who is a prisoner of war within the meaning of the Geneva Convention Relative to the Treatment of Prisoners of War, signed at Geneva on August 12, 1949 (6 UST 3316).

(b) 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 standards, process, and criteria to be used for the determination that an American citizen or lawful resident is an enemy combatant under subsection (a) and for the detention of such an enemy combatant.

SEC. 4. PROCEDURAL REQUIREMENTS.

The rules prescribed for the detention of enemy combatants shall establish clear standards and procedures governing detention of a United States person or resident that preserve the Government's ability to detain those who may threaten the United States, assist in the gathering of vital intelligence, and protect the confidentiality of that information or any other information which, if released, could impede the Government's investigation of terrorism. Such rules shall also guarantee timely access to judicial review to challenge the basis for a detention, and permit the detainee access to counsel.

SEC. 5. DETENTION.

(a) Duration of Detention-

(1) LIMITATION- A United States person or resident may be detained under subsection (a) of section 3 only while there is in effect for the purposes of this section a certification by the President that--

(A) the United States Armed Forces are engaged in a state of armed conflict with al Qaeda and an investigation with a view toward prosecution, a prosecution, or a post-trial proceeding in the case of such person or resident is ongoing; or

(B) detention is warranted in order to prevent such person or resident from aiding persons attempting to commit terrorist acts against the United States.

(2) CERTIFICATION AND RECERTIFICATION- A certification referred to in paragraph (1) shall be effective for 180 days. The President may make successive certifications under that paragraph.

(b) Detention Review- The United States District Court for the District of Columbia shall have exclusive jurisdiction to review any detention under this Act to ensure that the requirements of this Act for detaining an accused are satisfied.

(c) Conditions of Detention- A person detained under this Act 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. REPORTS TO CONGRESS.

Not less often than once every 12 months, the President shall submit to the Congress a report on the use of the authority provided by this Act. Each such report shall specify each individual subject to, or detained pursuant to, the authority provided by this Act.

SEC. 7. UNITED STATES PERSON OR RESIDENT DEFINED.

In this Act, the term `United States person or resident' means--

(1) a United States person, as such term is defined in section 101(i) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(i)); or

(2) an alien lawfully admitted to the United States for permanent residence.

SEC. 8. TERMINATION OF AUTHORITY.

The authority under this Act may not be exercised after December 31, 2007.

END