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:

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).