I 

109TH CONGRESS 

1ST SESSION H. R. 3038 

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. 

IN THE HOUSE OF REPRESENTATIVES 

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 

A BILL 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Guantanamo Detainees 

3 Procedures Act of 2005’’. 

4 SEC. 2. AUTHORITY OF EXECUTIVE BRANCH TO DETAIN 

5 PERSONS COVERED BY THIS ACT AS UNLAW6 FUL COMBATANTS. 

7 (a) FINDING.—Congress finds that the executive 

8 branch has authority to detain persons covered by this Act 

9 as unlawful combatants. 

10 (b) PERSONS COVERED BY THIS ACT.—In this Act, 

11 the term ‘‘person covered by this Act’’ means an individual 

12 who— 

13 (1) is accused of knowingly— 

14 (A) planning, authorizing, committing, aid15 ing, or abetting one or more terrorist acts 

16 against the United States; or 

17 (B) being part of or supporting forces en18 gaged in armed conflict against the United 

19 States; 

20 (2) is not a United States person or lawful per21 manent resident; and 

22 (3) is not a prisoner of war within the meaning 

23 of the Geneva Convention Relative to the Treatment 

24 of Prisoners of War, done on August 12, 1949. 
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1 SEC. 3. RIGHT OF PERSON DETAINED AS UNLAWFUL COM2 BATANT OR ON SIMILAR BASIS TO CHAL3 LENGE THAT BASIS. 

4 (a) IN GENERAL.—Whenever the United States de5 tains a person covered by this Act on the basis of a deter6 mination that the person can be detained as an unlawful 

7 combatant or can be detained on any similar basis, the 

8 person is entitled to a hearing under this section as expedi9 tiously as practicable but not later than 6 months after 

10 the date on which the United States first made the deter11 mination. 

12 (b) REQUIREMENTS FOR HEARING.—A hearing re13 quired by subsection (a) must meet the following require14 ments: 

15 (1) The hearing officer is an active member of 

16 one of the Courts of Criminal Appeals of the Armed 

17 Forces. 

18 (2) The hearing officer has authority to decide 

19 de novo whether the basis of a determination under 

20 subsection (a) is valid and to grant appropriate re21 lief if the hearing officer decides that the basis is in22 valid. 

23 (3) The hearing officer is impartial in fact, and 

24 is in a position independent from— 

25 (A) the individuals who first determined 

26 that the person can be detained; and 
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1 (B) the individuals on whose orders the 

2 person is being detained. 

3 (4) The person is provided with access to the 

4 evidence that tends to support the determination 

5 that the person can be detained. 

6 (5) The person is provided with an opportunity 

7 to address the hearing officer, and is provided with 

8 an interpreter for that purpose. 

9 (c) ADMINISTRATIVE REVIEW.—The Secretary of De10 fense shall conduct administrative review of the activities 

11 of a hearing officer under this section. 

12 SEC. 4. RIGHT OF PERSON DETAINED TO DISPOSITION 

13 WITHIN 2 YEARS. 

14 (a) IN GENERAL.—Whenever the United States de15 tains a person covered by this Act on the basis of a deter16 mination that the person can be detained as an unlawful 

17 combatant or can be detained on any similar basis, the 

18 person is entitled to a disposition under this section not 

19 later than 2 years after the date on which the United 

20 States first made the determination. 

21 (b) REQUIREMENTS FOR DISPOSITION.—A disposi22 tion under this section is any one of the following: 

23 (1) Repatriation to the governing authority in 

24 the area in which the person was first detained or 

25 the person’s country of origin, except where there 
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1 are substantial grounds to believe that the person 

2 would be in danger of being subjected to torture. 

3 (2) The commencement, by formal charges, of 

4 prosecution in an appropriate court, which may in5 clude an extraordinary tribunal under section 5 of 

6 this Act, an international criminal tribunal, or a dis7 trict court of the United States. 

8 (c) EXTENSION.— 

9 (1) CERTIFICATION.—The period required by 

10 subsection (a) for the repatriation of the person or 

11 the commencement of formal charges may be ex12 tended if the Secretary of Defense certifies, in writ13 ing, with respect to the person that the Secretary of 

14 Defense has determined that the person is a con15 tinuing threat to the national security of the United 

16 States due to a likelihood that the person will under17 take terrorist or belligerent acts against the United 

18 States based on the person’s past conduct, level of 

19 authority within the group or organization, state20 ment and actions during confinement, age and 

21 health, psychological profile, and other pertinent fac22 tors, and the repatriation of the person or the com23 mencement of formal charges will compromise the 

24 national security of the United States by curtailing 

25 intelligence gathering from the person, jeopardize in-
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1 telligence sources necessary to prosecute the person, 

2 or other extraordinary circumstances justify the ex3 tension. 

4 (2) DETAILED BASIS.—A certification under 

5 this subsection must include a detailed account of 

6 the factual basis for that determination. 

7 (3) ACCESS TO CERTIFICATION.—A person cov8 ered by a certification under this subsection is enti9 tled to an unclassified copy of the certification. 

10 (4) DURATION OF CERTIFICATION.—A certifi11 cation under this subsection is effective for not more 

12 than 1 year. The Secretary may make successive 

13 certifications with respect to a person so long as 

14 each additional certification is made while an immi15 nent threat to national security continues to be 

16 posed by the group or organization in which the per17 son is a member or by other persons associated with, 

18 or acting on behalf of, the group, organization, or 

19 person. 

20 (5) JUDICIAL REVIEW.—The United States 

21 Court of Appeals for the Armed Forces shall provide 

22 judicial review with respect to any issue under this 

23 subsection, including whether the determination of 

24 the Secretary under paragraph (1) is justified by the 

25 factual basis under paragraph (2). 
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1 SEC. 5. EXTRAORDINARY TRIBUNALS. 

2 (a) AUTHORITY.—The President is hereby authorized 

3 to establish tribunals for the trial of persons covered by 

4 this Act. 

5 (b) JURISDICTION.—Tribunals established under 

6 subsection (a) may adjudicate violations of the law of war, 

7 international laws of armed conflict, and crimes against 

8 humanity targeted against United States persons or resi9 dents. 

10 (c) AUTHORITY TO ESTABLISH PROCEDURAL

11 RULES.—The Secretary of Defense, in consultation with 

12 the Secretary of State and the Attorney General, shall pre13 scribe and publish in the Federal Register, and report to 

14 the Committees on the Judiciary of the Senate and the 

15 House of Representatives, the rules of evidence and proce16 dure that are to apply to tribunals established under sub17 section (a). 

18 SEC. 6. PROCEDURAL REQUIREMENTS. 

19 (a) IN GENERAL.—The rules prescribed for a tri20 bunal under section 5(c) shall be designed to ensure a full 

21 and fair hearing of the charges against the accused. The 

22 rules shall require the following: 

23 (1) That the tribunal be independent and im24 partial. 

25 (2) That the accused be notified of the particu26 lars of the offense charged or alleged without delay. 
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1 (3) That the proceedings be made simulta2 neously intelligible for participants not conversant in 

3 the English language by translation or interpreta4 tion. 

5 (4) That the evidence supporting each alleged 

6 offense be given to the accused, except as provided 

7 in subsection (d). 

8 (5) That the accused have the opportunity to be 

9 present at trial. 

10 (6) That the accused have a right to be rep11 resented by counsel. 

12 (7) That the accused have the opportunity— 

13 (A) to respond to the evidence supporting 

14 each alleged offense; 

15 (B) to obtain exculpatory evidence from 

16 the prosecution; and 

17 (C) to present exculpatory evidence. 

18 (8) That the accused have the opportunity to 

19 confront and cross-examine adverse witnesses and to 

20 offer witnesses. 

21 (9) That the proceeding and disposition be ex22 peditious. 

23 (10) That the tribunal apply reasonable rules of 

24 evidence designed to ensure admission only of reli25 able information or material with probative value. 
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1 (11) That the accused be afforded all necessary 

2 means of defense before and after the trial. 

3 (12) That conviction of an alleged offense not 

4 be based upon an act, offense, or omission that was 

5 not an offense under law when it was committed. 

6 (13) That the penalty for an offense not be 

7 greater than it was when the offense was committed. 

8 (14) That the accused— 

9 (A) be presumed innocent until proven 

10 guilty, and 

11 (B) not be found guilty except upon proof 

12 beyond a reasonable doubt. 

13 (15) That the accused not be compelled to con14 fess guilt or testify against himself. 

15 (16) That, subject to subsections (c) and (d), 

16 the trial be open and public and include public avail17 ability of the transcripts of the trial and the pro18 nouncement of judgment. 

19 (17) That a convicted person be informed of 

20 remedies and appeals and the time limits for the ex21 ercise of the person’s rights to the remedies and ap22 peals under the rules. 

23 (18) That a preliminary proceeding be held 

24 within 30 days of detention to determine whether 

25 there is jurisdiction under section 4 over the person 
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1 and the offenses charged. The preliminary pro2 ceeding may be continued for an additional 30 days 

3 for good cause shown. 

4 (19) That the privilege of the writ of habeas 

5 corpus under title 28, United States Code, or under 

6 any other provision of law not be infringed. 

7 (20) That the tribunal be comprised of a mili8 tary judge and not less than five members. 

9 (b) IMPOSITION OF THE DEATH PENALTY.—The re10 quirements of the Uniform Code of Military Justice for 

11 the imposition of the death penalty shall apply in any case 

12 in which a tribunal established under section 5 is re13 quested to adjudge the death penalty. 

14 (c) PUBLIC PROCEEDINGS.—Any proceedings con15 ducted by a tribunal established under section 5, and the 

16 proceedings on any appeal of an action of the tribunal, 

17 shall be accessible to the public consistent with any de18 monstrable necessity to secure the safety of observers, wit19 nesses, tribunal judges, counsel, or other persons. 

20 (d) CONFIDENTIALITY OF EVIDENCE.—Evidence 

21 available from an agency of the Federal Government that 

22 is offered in a trial by a tribunal established under section 

23 5 may be kept secret from the public only when the head 

24 of the agency personally certifies in writing that disclosure 

25 will cause— 
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1 (1) identifiable harm to the prosecution of mili2 tary objectives; 

3 (2) significant, identifiable harm to intelligence 

4 sources or methods; or 

5 (3) substantial risk that such evidence could be 

6 used for planning future terrorist attacks. 

7 (e) REVIEW.— 

8 (1) PROCEDURES REQUIRED.—The Secretary of 

9 Defense shall provide for prompt review of convic10 tions by tribunals established under section 5 to en11 sure that the procedural requirements of a full and 

12 fair hearing have been met and that the evidence 

13 reasonably supports the convictions. 

14 (2) UNITED STATES COURT OF APPEALS FOR

15 THE ARMED FORCES.—The procedures established 

16 under paragraph (1) shall, at a minimum, allow for 

17 review of the proceedings of the tribunals, and the 

18 convictions and sentences of such tribunals, by the 

19 United States Court of Appeals for the Armed 

20 Forces established under the Uniform Code of Mili21 tary Justice. 

22 (3) SUPREME COURT.—The decisions of the 

23 United States Court of Appeals for the Armed 

24 Forces regarding proceedings of tribunals estab-
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1 lished under section 5 shall be subject to review by 

2 the Supreme Court by writ of certiorari. 

3 SEC. 7. ANNUAL REPORT ON PERSONS COVERED BY THIS 

4 ACT WHO ARE DETAINED AS UNLAWFUL COM5 BATANTS BY THE UNITED STATES. 

6 (a) REPORT REQUIRED.—The Secretary of Defense 

7 shall submit to Congress an annual report on persons cov8 ered by this Act who are detained as unlawful combatants 

9 by the United States. 

10 (b) CURRENT DETAINEES.—The report shall include, 

11 for each person currently so detained, the following: 

12 (1) The name and nationality of the person. 

13 (2) The period during which the person has 

14 been so detained. 

15 (3) A description of the specific process af16 forded to the person under sections 3 and 4 of this 

17 Act and the outcome of those processes. 

18 (c) FORMER DETAINEES.—The report shall include, 

19 for each person formerly so detained, the following: 

20 (1) The name and nationality of the person. 

21 (2) The terms of the conditional release agree22 ment with respect to the person. 

23 (3) A statement of the basis for the determina24 tion of the United States Government that release 

25 was warranted. 
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1 (4) The period during which the person was so 

2 detained, including the release date of the person. 

3 (d) CLASSIFICATION.—The report required by this 

4 section shall be submitted in unclassified form, but may 

5 include a classified annex. 

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