I 111th CONGRESS 2d Session H. R. 4892 IN THE HOUSE OF REPRESENTATIVES March 19, 2010 Mr. McKeon introduced the following bill; which was referred to the Select Committee on Intelligence (Permanent Select), and in addition to the Committees on Armed Services and the Judiciary, 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 provide for the interrogation and detention of enemy belligerents who commit hostile acts against the United States, to establish certain limitations on the prosecution of such belligerents for such acts, and for other purposes.

1.

Short title

This Act may be cited as the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.

2.

Placement of suspected unprivileged enemy belligerents in military custody

(a)

Military custody requirement

Whenever within the United States, its territories, and possessions, or outside the territorial limits of the United States, an individual is captured or otherwise comes into the custody or under the effective control of the United States who is suspected of engaging in hostilities against the United States or its coalition partners through an act of terrorism, or by other means in violation of the laws of war, or of purposely and materially supporting such hostilities, and who may be an unprivileged enemy belligerent, the individual shall be placed in military custody for purposes of initial interrogation and determination of status in accordance with the provisions of this Act. (b)

Delay for intelligence activities

The Secretary of Defense and the Director of National Intelligence may, after giving due consideration to operational needs and requirements to avoid compromise or disclosure of an intelligence mission or intelligence sources or methods, jointly authorize an element of the intelligence community that has initially captured an individual who may be an unprivileged enemy belligerent or otherwise taken such individual into custody or placed such individual under the effective control of the United States to hold, interrogate, or transport such individual. Such individual, if retained by the United States following that authorization, shall subsequently be placed into military custody in accordance with subsection (a).

3.

Interrogation and determination of status of suspected unprivileged enemy belligerents

(a)

Interrogation of high-Value detainees

(1)

In general

The Director of National Intelligence shall, in consultation with the heads of departments and agencies of the United States Government containing elements of the intelligence community, the Director of the Central Intelligence Agency, and the Director of the Federal Bureau of Investigation— (A)coordinate the interrogation of high-value detainees and individuals who are not in the custody or under the effective control of the United States, but otherwise meet the definition of a high-value detainee under subsection (c); (B)coordinate the preliminary determinations with respect to whether or not high-value detainees are unprivileged enemy belligerents; (C)be responsible for any interagency group— (i)conducting an interrogation of a high-value detainee or individual who is not in the custody or under the effective control of the United States, but otherwise meets the definition of a high-value detainee under subsection (c); and (ii)making a preliminary determination with respect to whether or not the detainee is an unprivileged enemy belligerent; and (D)before an officer or employee of the Federal Government provides the warnings of constitutional rights described in Miranda vs. Arizona, 384 U.S. 436 (U.S. 1966) to a high-value detainee who is suspected of terrorism, associated with terrorists, or believed to have knowledge of terrorists and who is captured, held, or questioned by a department or agency that is or contains an element of the intelligence community, approve the providing of such warnings to such high-value detainee. (2)

Limitation

Paragraph (1) shall not apply with respect to a detainee who is captured on the battlefield by the Armed Forces of the United States, unless the Director of National Intelligence determines that such detainee is a high-value detainee. (3)

Certain delegations prohibited

The Director of National Intelligence may not delegate the authority to approve the providing of warnings under paragraph (1)(D). (4)

Preliminary determination with respect to high-value detainees

A determination under paragraph (1)(B) shall be based on all intelligence information available. The Director of National Intelligence shall submit each such determination to the Secretary of Defense and the Attorney General. (5)

Paramount purpose of interrogations

An interrogation conducted in accordance with this section shall be conducted in a manner to accomplish the paramount purpose of protecting United States civilians and United States civilian facilities through thorough and professional interrogation for intelligence purposes. (b)

Determinations of status

(1)

Final determination

The Director of National Intelligence, the Secretary of Defense, and the Attorney General shall jointly submit to the President and to the appropriate committees of Congress a final determination as to whether or not a high-value detainee for which a preliminary determination of status has been made under subsection (a)(1)(B) or (a)(1)(C)(ii) is an unprivileged enemy belligerent for purposes of this Act. In the event of a disagreement between the Director of National Intelligence, the Secretary of Defense, and the Attorney General, the President shall make the final determination. (2)

Deadline for determinations

All actions required regarding a high-value detainee under this subsection shall be completed as soon as practicable, consistent with intelligence collection requirements, after the detainee is placed in military custody under section 2. (3)

Criteria for designation of individuals as high-value detainees

The criteria for designating an individual as a high-value detainee based on the following: (A)The potential threat the individual poses for an attack on civilians or civilian facilities within the United States or upon United States citizens or United States civilian facilities abroad at the time of capture or when coming under the custody or control of the United States. (B)The potential threat the individual poses to United States military personnel or United States military facilities at the time of capture or when coming under the custody or control of the United States. (C)The potential intelligence value of the individual. (D)Membership in al Qaeda, a terrorist group affiliated with al Qaeda, or any other organization designated by the Secretary of State as a foreign terrorist organization in accordance with section 219 of the Immigration and Nationality Act (8 U.S.C. 1189). (E)Such other matters as the President considers appropriate. (c)

High-Value detainee defined

In this section, the term high-value detainee means an individual placed in military custody under section 2 that meets criteria for designating an individual as a high-value detainee based on the criteria referred to in subsection (b)(3), as determined by the Secretary of Defense.

4.

Limitation on prosecution of alien unprivileged enemy belligerents

(a)

Limitation

No funds appropriated or otherwise made available to the Department of Justice may be used to prosecute in an Article III court in the United States, or in any territory or possession of the United States, any alien who has been determined to be an unprivileged enemy belligerent under section 3(b)(1). (b)

Applicability pending final determination of status

While a final determination on the status of an alien high-value detainee is pending under section 3(b)(1), the alien shall be treated as an unprivileged enemy belligerent for purposes of subsection (a).

5.

Detention without trial of unprivileged enemy belligerents

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(b)(1) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

6.

Definitions

In this Act: (1)

Act of terrorism

The term act of terrorism means an act of terrorism as that term is defined in section 101(16) of the Homeland Security Act of 2002 (6 U.S.C. 101(16)). (2)

Alien

The term alien means an individual who is not a citizen of the United States. (3)

Appropriate committees of Congress

The term appropriate committees of Congress means— (A)the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, and the Select Committee on Intelligence of the Senate; and (B)the Committee on Armed Services, the Committee on Homeland Security, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence of the House of Representatives. (4)

Article III court

The term Article III court means a court of the United States established under Article III of the Constitution of the United States. (5)

Coalition partner

The term coalition partner, with respect to hostilities engaged in by the United States, means any State or armed force directly engaged along with the United States in such hostilities or providing direct operational support to the United States in connection with such hostilities. (6)

Geneva Convention Relative to the Treatment of Prisoners of War

The term Geneva Convention Relative to the Treatment of Prisoners of War means the Geneva Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316). (7)

Hostilities

The term hostilities means any conflict subject to the laws of war, and includes a deliberate attack upon civilians and civilian targets protected by the laws of war. (8)

Intelligence community

The term intelligence community has the meaning given such term under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)). (9)

Privileged belligerent

The term privileged belligerent means an individual belonging to one of the eight categories enumerated in Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War. (10)

Unprivileged enemy belligerent

The term unprivileged enemy belligerent means an individual (other than a privileged belligerent) who— (A)has engaged in hostilities against the United States or its coalition partners; (B)has purposely and materially supported hostilities against the United States or its coalition partners; or (C)was a part of al Qaeda at the time of capture.

7.

Effective date

This Act shall take effect on the date of the enactment of this Act, and shall apply with respect to individuals who are captured or otherwise come into the custody or under the effective control of the United States on or after that date.