[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.
                                 <all>