I
107TH CONGRESS
2D SESSION
H. R. 5071
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.
IN THE HOUSE OF REPRESENTATIVES
JULY 9, 2002
Mr. SCHIFF (for himself, Mr. CONYERS, and Mr. FRANK) introduced the fol-
lowing bill; which was referred to the Committee on Armed Services, and
in addition to the Committee on the Judiciary, for a period to be subse-
quently 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 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 Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Military Tribunals 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 bomb-
ings of the United States embassies in Nairobi,
Kenya, and Dar es Salaam, Tanzania, the October
12, 2000 attack on the USS COLE and the Sep-
tember 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 weap-
ons 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 inter-
national 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 Sep-
tember 18, 2001, to use all necessary and appro-
priate force against those nations, organizations, or
persons that he determines to have planned, author-
ized, 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 Resolu-
tion.
(8) The United States and its allies are en-
gaged in armed conflict with al Qaeda and the
Taliban.
(9) Military trials of the terrorists may be ap-
propriate to protect the safety of the public and
those involved in the investigation and prosecution,
to facilitate the use of classified information as evi-
dence without compromising intelligence or military
efforts, and otherwise to protect national security in-
terests.
(10) Military trials that provide basic proce-
dural guarantees of fairness, consistent with the
international law of armed conflict and the Inter-
national Covenant on Civil and Political Rights
(opened for signature December 16, 1966), would
garner the support of the community of nations.
(11) Due process, including the writ of habeas
corpus and the right to an appeals process, must be
afforded to any person subject to a military tribunal.
(12) Preliminary proceedings should be estab-
lished to determine whether jurisdiction over the
person and over the charge is properly vested in the
tribunal.
(13) 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 con-
cerning Captures on Land and Water; . . . make all
Laws which shall be necessary and proper for car-
rying into Execution the foregoing Powers and all
other Powers vested by this Constitution in the Gov-
ernment of the United States, or in any Department
or Officer thereof.’’.
(14) Without protections and reporting require-
ments in place, persons detained for an indefinite
amount of time would have no recourse. A signifi-
cant danger exists that due process might be evaded
simply by failing to bring detainees before a tribunal
for trial.
(15) Congressional authorization is necessary
for the establishment of extraordinary tribunals to
adjudicate and punish offenses arising from the Sep-
tember 11, 2001 attacks against the United States
and to provide a clear and unambiguous legal foun-
dation for such trials.
(16) Judicial review of individual detentions is
best handled by a court that would not have to ap-
point special masters or magistrates to do the nec-
essary fact finding.
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 or residents;
(2) are members of al Qaeda who knowingly
planned, authorized, committed, aided, or abetted
one or more terrorist acts against the United States,
or members of other terrorist organizations who
knowingly cooperated with members of al Qaeda in
planning, authorizing, committing, aiding, or abet-
ting one or more terrorists acts against the United
States; and
(3) 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.
(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 resi-
dents.
(c) 
AUTHORITY
TO
ESTABLISH
PROCEDURAL
RULES.—The Secretary of Defense, in consultation with
the Secretary of State and the Attorney General, shall pre-
scribe 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 proce-
dure that are to apply to tribunals established under sub-
section (a).
SEC. 4. PROCEDURAL REQUIREMENTS.
(a) IN GENERAL.—The rules prescribed for a tri-
bunal 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 im-
partial.
(2) That the accused be notified of the particu-
lars of the offense charged or alleged without delay.
(3) That the proceedings be made simulta-
neously intelligible for participants not conversant in
the English language by translation or interpreta-
tion.
(4) That the evidence supporting each alleged
offense be given to the accused, except as provided
in section 4(d) of this Act.
(5) That the accused have the opportunity to be
present at trial.
(6) That the accused have a right to be rep-
resented 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 ex-
peditious.
(10) That the tribunal apply reasonable rules of
evidence designed to ensure admission only of reli-
able 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 con-
fess guilt or testify against himself.
(17) That, subject to subsections (c) and (d),
the trial be open and public and include public avail-