[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1029 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 1029
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.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 27, 2003
Mr. Schiff (for himself, Mr. Frank of Massachusetts, Mr. Sanders, and
Mr. McDermott) 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
_______________________________________________________________________
A BILL
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 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, 2005.
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