I
107TH CONGRESS
2D SESSION
H. R. 5684
To authorize the President to detain an enemy combatant who is a United
States person or resident if the person or resident is a member 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, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 16, 2002
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
A BILL
To authorize the President to detain an enemy combatant
who is a United States person or resident if the person
or resident is a member of al Qaeda, or knowingly co-
operated with members of al Qaeda in the planning,
authorizing, committing, aiding, or abetting of one or
more terrorist acts 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 ‘‘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, bomb-
ings 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 weap-
ons 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 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.
(6) The United States and its allies are en-
gaged 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 combat-
ants in the struggle against al Qaeda.
(8) The term ‘‘enemy combatant’’ has histori-
cally 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 com-
batants in the present conflict, however, come from
many nations, wear no uniforms, and use unconven-
tional 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 combat-
ant’’ 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 appro-
priate to protect the safety of the public and those
involved in the investigation and prosecution of ter-
rorism, to facilitate the use of classified information
as evidence without compromising intelligence or
military efforts, to gather unimpeded vital informa-
tion from the detainee, and otherwise to protect na-
tional security interests.
(10) The Executive must be allowed broad lati-
tude to establish by regulation and Executive order
the process, standards, and conditions in which a
United States citizen or lawful resident may be de-
tained as an enemy combatant. Courts must give
broad deference to military judgment concerning the
determination of enemy combatant status, POW sta-
tus, 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 congres-
sional 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, commit-
ting, aiding, or abetting of one or more terrorist acts
against the United States.
(13) During wartime, a nation must take ex-
traordinary steps to protect itself, including meas-
ures that would never be acceptable during peace-
time. 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 pro-
tection all classes of men, at all times, and under all
circumstances.’’ Ex Parte Milligan.
(14) Nothing in this Act permits the Govern-
ment, 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 enti-
tled 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.