[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3401 Introduced in Senate (IS)]
110th CONGRESS
2d Session
S. 3401
To provide for habeas corpus review for terror suspects held at
Guantanamo Bay, Cuba, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 31, 2008
Mr. Graham (for himself and Mr. Lieberman) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To provide for habeas corpus review for terror suspects held at
Guantanamo Bay, Cuba, 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 ``Enemy Combatant Detention Review Act
of 2008''.
SEC. 2. HABEAS CORPUS REVIEW FOR CERTAIN ENEMY COMBATANTS.
(a) In General.--Chapter 153 of title 28, United States Code, is
amended by striking section 2256, as added by section 250 of the Act of
November 6, 1978 (Public Law 95-598; 92 Stat. 2672), and inserting the
following:
``Sec. 2256. Habeas corpus review for certain enemy combatants
``(a) Definitions.--In this section--
``(1) the term `attorney for the Government' means the
attorney representing the United States in a habeas corpus
proceeding under this section;
``(2) the term `covered individual' means an individual
who--
``(A) has been determined by a Combatant Status
Review Tribunal to be an enemy combatant (pursuant to
the definition employed by that tribunal) or is
awaiting the determination of such a tribunal;
``(B) is in the custody of the United States at
Guantanamo Bay, Cuba on or after the date of enactment
of the Enemy Combatant Detention Review Act of 2008;
and
``(C) is not a citizen of the United States or an
alien admitted for permanent residence in the United
States; and
``(3) the term `enemy combatant' means a person who has
engaged in hostilities or who has purposefully and materially
supported hostilities against the United States or its
cobelligerents on behalf of the Taliban, al Qaeda, or
associated forces.
``(b) Statement of Authority.--
``(1) In general.--Congress reaffirms that the United
States is in an armed conflict with al Qaeda, the Taliban, and
associated forces and that those entities continue to pose a
threat to the United States and its citizens, both domestically
and abroad.
``(2) Authority.--Congress reaffirms that the President is
authorized to detain enemy combatants in connection with the
continuing armed conflict with al Qaeda, the Taliban, and
associated forces, regardless of the place of capture, until
the termination of hostilities.
``(3) Rule of construction.--The authority under this
section shall not be construed to alter or limit the authority
of the President under the Constitution of the United States to
detain combatants in the continuing armed conflict with al
Qaeda, the Taliban, and associated forces, or in any other
armed conflict.
``(c) Jurisdiction and Venue.--
``(1) In general.--The United States District Court for the
District of Columbia (in this section referred to as the
`District Court') shall have exclusive jurisdiction of, and
shall be the exclusive venue for consideration of, all
applications for habeas corpus by or on behalf of any covered
individual that is pending on or filed on or after the date of
enactment of the Enemy Combatant Detention Review Act of 2008.
``(2) Scope of jurisdiction.--An application for habeas
corpus filed under paragraph (1) by or on behalf of a covered
individual--
``(A) may challenge the legality of the continued
detention of the covered individual; and
``(B) may not include any other claim relating to
the detention, transfer, treatment, trial, or
conditions of confinement of the covered individual or
any other action against the United States or its
agents.
``(3) Consolidated motions practice.--All applications for
a writ of habeas corpus by or on behalf of a covered individual
that are pending on or after the date of enactment of the Enemy
Combatant Detention Review Act of 2008 shall be consolidated
before the Chief Judge of the District Court or a designee of
the Chief Judge for consolidated proceedings and determinations
on common questions of fact or law, including questions
concerning the procedures to be conducted on the applications.
``(4) Transfer.--Consistent with section 1403(a) of this
title, any court of the United States shall transfer a case
within the exclusive jurisdiction of the District Court.
``(d) Procedures.--
``(1) Status of covered individual.--
``(A) In general.--In a proceeding instituted by an
application for habeas corpus by or on behalf of a
covered individual under subsection (c)(1), the burden
shall be on the Government to submit a return in the
form of a written declaration describing the factual
basis upon which the Government is detaining the
covered individual. Any evidence relied upon by the
Government in its declaration shall be subject to a
rebuttable presumption with respect to the competency
and authenticity of such evidence.
``(B) Presumption.--Upon a determination that the
Government's return shows credible evidence that the
covered individual is an enemy combatant, there shall
be a rebuttable presumption that the covered individual
is an enemy combatant. The covered individual shall
have the burden of rebutting the presumption that the
covered individual is an enemy combatant by a showing
of more persuasive evidence. The covered individual
shall present such evidence in the form of a written
declaration.
``(C) Rebuttal of presumption.--If a covered
individual presents evidence sufficient to rebut the
presumption under subparagraph (B), the District Court
may hold an evidentiary hearing on any disputed matter.
In a hearing under this subparagraph, the court shall
hear evidence and make findings of fact by a
preponderance of the evidence.
``(2) Discovery.--
``(A) Scope of discovery.--Subject to subparagraph
(B), a covered individual may request from the
Government as the discovery relating to a habeas corpus
proceeding under this section, and if requested by a
covered individual, the Government shall provide--
``(i) any documents or objects directly and
specifically referenced in the return submitted
by the Government;
``(ii) any evidence known to the attorney
for the Government that tends materially to
undermine evidence presented in the return
submitted by the Government;
``(iii) all statements, whether oral,
written, or recorded, made or adopted by the
covered individual that are known to the
attorney for the Government and directly
related to the information in the return
submitted by the Government.
``(B) Protection of national security
information.--
``(i) Generally.--Classified information
shall be protected and is privileged from
disclosure in habeas corpus proceedings
relating to a covered individual. The rule
under this subparagraph applies to all stages
of any proceeding relating to an application
for habeas corpus filed under subsection
(c)(1).
``(ii) Substitute.--If any information
described in subparagraph (A) is classified,
the attorney for the Government shall either--
``(I) provide the covered
individual with an adequate substitute,
to the extent practicable and
consistent with national security; or
``(II) make the classified
information available to properly
cleared counsel for the covered
individual.
``(iii) Nondisclosure of classified
information.--Under no circumstances shall the
Government be required to provide a covered
individual, or any other person detained as an
enemy combatant, with access to classified
information as part of a habeas corpus
proceeding under this section.
``(iv) Sources and methods.--The Government
shall not be required to disclose to anyone
outside the Government the classified sources,
methods, or activities by which the Government
acquired information described in subparagraph
(A). The District Court may require the
Government to present, to the extent
practicable and consistent with national
security, an unclassified summary of the
sources, methods, or activities by which the
Government acquired such information.
``(v) Order.--Upon motion of the
Government, the District Court shall issue an
order to protect against the disclosure of any
classified information.
``(vi) Ex parte and in camera review.--If
the Government seeks to protect classified
information from disclosure pursuant to the
protections of this subparagraph, the court may
review the Government's submission ex parte and
in camera.
``(vii) Interlocutory appeal.--The
Government may take an interlocutory appeal
from a decision of the District Court relating
to the disclosure of classified information
subject to the same expedited procedures that
would apply to such an appeal pursuant to
section 7 of the Classified Information
Procedures Act (18 U.S.C. App.).
``(3) Witness production.--
``(A) In general.--To the maximum extent possible,
habeas corpus proceedings shall be decided on the basis
of a written return and a written declaration. The
rules concerning the admissibility of evidence in civil
or criminal trials shall not apply to the presentation
and consideration of information at any evidentiary
hearing under this section. The District Court may
consider any reliable and probative evidence, including
hearsay from military, intelligence, and law
enforcement sources.
``(B) Basis for in-person testimony.--The District
Court may grant a motion for oral testimony relating to
an evidentiary hearing pursuant to paragraph (1)(C)
only if the court finds by clear and convincing
evidence that military and intelligence operations
would not be harmed by the production of the witness
and oral testimony would be likely to provide a
material benefit to the resolution by the court of the
disputed matter.
``(4) Attorneys.--
``(A) In general.--The covered individual shall be
represented by an attorney if the attorney--
``(i) is retained by the covered individual
or appointed by the District Court;
``(ii) has been determined to be eligible
for access to classified information that is
classified at the level Secret or higher, as
required; and
``(iii) has signed a written agreement to
comply with all applicable regulations or
instructions for attorneys in habeas corpus
proceedings before the District Court,
including any rules of court for conduct during
the proceedings.
``(B) Classified information.--Any attorney for a
covered individual--
``(i) shall protect any classified
information received during the course of
representation of the covered individual in
accordance with all applicable law governing
the protection of classified information; and
``(ii) may not divulge such information to
any person not authorized to receive it.
``(5) Video hearings.--The District Court shall not require
the presence of a covered individual detained at Guantanamo
Bay, Cuba, or elsewhere, for the purpose of any proceeding
under this section, including an evidentiary hearing pursuant
to paragraph (1)(C), although the District Court in its
discretion may permit a detainee to participate from Guantanamo
Bay, Cuba, in certain proceedings through available
technological means, if appropriate and consistent with the
procedures for the protection of classified information and
national security under this section.
``(e) Exhaustion of Military Commission Procedures.--
``(1) Stay of applications pending other proceedings.--Any
application for habeas corpus that is pending on or after the
date of enactment of the Enemy Combatant Detention Review Act
of 2008 by or on behalf of a covered individual against whom
charges have been sworn under chapter 47A of title 10 shall be
stayed pending resolution of the proceedings under chapter 47A
of title 10.
``(2) Habeas procedures for persons convicted by final
judgment of a military commission.--
``(A) In general.--Subject to the restrictions
under sections 950g and 950j of title 10, an
application for a writ of habeas corpus on behalf of a
covered individual in custody pursuant to a final
judgment of a military commission shall not be granted
unless the applicant has exhausted the remedies
available under chapter 47A of title 10.
``(B) Failure to exhaust.--An application for a
writ of habeas corpus by a covered individual may be
denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available under
chapter 47A of title 10.
``(C) Remedies not exhausted.--A covered individual
shall not be determined to have exhausted the remedies
available under chapter 47A of title 10, within the
meaning of this section, if the covered individual has
the right under chapter 47A of title 10 to raise, by
any available procedure, the question presented in an
application for a writ of habeas corpus.
``(D) Limitations.--An application for a writ of
habeas corpus on behalf of a covered individual in
custody pursuant to the judgment of a military
commission shall not be granted with respect to any
claim that was adjudicated on the merits in military
commission proceedings under chapter 47A of title 10 or
that could have been raised before the military
commission, except where the commission was without
jurisdiction to impose such a judgement.
``(E) Scope of review.--Subject to the restrictions
under subparagraph (D), in reviewing any other claim on
an application for a writ of habeas corpus on behalf of
a covered individual in custody pursuant to the
sentence of a military commission, the District Court
shall apply the same deference applicable to a court
reviewing an application on behalf of a person in
custody pursuant to the sentence of a court martial.
``(f) Limits on Second or Successive Applications.--
``(1) In general.--A claim presented in a second or
successive application for habeas corpus under this section
that was presented in a prior application shall be dismissed.
``(2) Claims not included in prior application.--A claim
presented in a second or successive application for habeas
corpus under this section that was not presented in a prior
application shall be dismissed unless the--
``(A) factual predicate for the claim could not
have been discovered previously through the exercise of
due diligence; and
``(B) facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found
that the covered individual was lawfully detained.
``(3) Procedures for second and successive applications.--
``(A) In general.--The District Court may only
consider a second or successive application for habeas
corpus under this section if the court determines that
the covered individual makes a prima facie showing that
the application satisfies the requirements under
paragraph (2) for consideration of a second or
successive application for habeas corpus.
``(B) Appeal.--The Government may take an
interlocutory appeal from a decision by the District
Court to grant consideration of a second or successive
habeas corpus application under this paragraph to the
United States Court of Appeals for the District of
Columbia Circuit. The District Court shall stay
proceedings pending the decision on an interlocutory
appeal.
``(g) Release.--
``(1) Covered individuals ordered released.--
``(A) In general.--No court shall order the release
of a covered individual into the United States.
``(B) Visas and immigration.--The Secretary of
State shall not issue any visa and the Secretary of
Homeland Security shall not admit or provide any type
of status to a covered individual described in
subparagraph (A) that may permit the covered individual
to enter or be admitted to the United States.
``(C) Waiver.--The President, in the sole
discretion of the President, may waive the restrictions
under subparagraph (A) or (B), in whole or in part,
upon a finding that the waiver of such restriction
would be consistent with the national security of the
United States.
``(2) Transfer.--
``(A) In general.--If the District Court grants an
application for a writ of habeas corpus and orders the
release of a covered individual, the covered individual
shall be released into the custody of the Secretary of
Homeland Security for the purpose of transferring the
individual to the country of citizenship of the
individual or to another country.
``(B) Transfer.--An individual in the custody of
the Secretary of Homeland Security pursuant to
subparagraph (A) shall be housed separately from aliens
detained as enemy combatants by the Department of
Defense and in a manner consistent with safety and
security of United States personnel. A transfer made
pursuant to subparagraph (A) shall be effected as
expeditiously as possible and in a manner that is
consistent with the policy set out in section 2242 of
the 1998 Foreign Relations Authorization Act, Fiscal
Years 1998 and 1999 (subdivision B of division G of
Public Law 105-277; 8 U.S.C. 1231 note), and with the
national security interests of the United States.''.
(b) Technical and Conforming Amendments.--
(1) In general.--Section 2241 of title 28, United States
Code, is amended by striking subsection (e).
(2) Table of sections.--The table of sections for chapter
153 of title 28, United States Code, is amended by striking the
item relating to section 2256, as added by section 250 of the
Act of November 6, 1978 (Public Law 95-598; 92 Stat. 2672), and
inserting the following:
``2256. Habeas corpus review for certain enemy combatants.''.
(3) Detainee treatment act of 2005.--Section 1005(e) of the
Detainee Treatment Act of 2005 (10 U.S.C. 801 note) is amended
by striking paragraph (2).
SEC. 3. EFFECTIVE DATE.
This Act shall take effect on the date of enactment of this Act,
and shall apply to all cases, without exception, pending on or after
the date of enactment of this Act.
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