[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3081 Introduced in Senate (IS)]
111th CONGRESS
2d Session
S. 3081
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 4, 2010
Mr. McCain (for himself, Mr. Lieberman, Mr. Inhofe, Mr. Brown of
Massachusetts, Mr. Wicker, Mr. Chambliss, Mr. LeMieux, Mr. Sessions,
and Mr. Vitter) introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
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.
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 Belligerent Interrogation,
Detention, and Prosecution Act of 2010''.
SEC. 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) Reasonable Delay for Intelligence Activities.--An individual
who may be an unprivileged enemy belligerent and who is initially
captured or otherwise comes into the custody or under the effective
control of the United States by an intelligence agency of the United
States may be held, interrogated, or transported by the intelligence
agency and placed into military custody for purposes of this Act if
retained by the United States within a reasonable time after the
capture or coming into the custody or effective control by the
intelligence agency, giving due consideration to operational needs and
requirements to avoid compromise or disclosure of an intelligence
mission or intelligence sources or methods.
SEC. 3. INTERROGATION AND DETERMINATION OF STATUS OF SUSPECTED
UNPRIVILEGED ENEMY BELLIGERENTS.
(a) Establishment of Interrogation Groups.--
(1) Establishment authorized.--The President is authorized
to establish an interagency team for purposes as follows:
(A) To interrogate under subsection (b) individuals
placed in military custody under section 2.
(B) To make under subsection (c)(1) a preliminary
determination of the status of individuals described in
section 2.
(2) Composition.--Each interagency team under this
subsection shall be composed of such personnel of the Executive
Branch having expertise in matters relating to national
security, terrorism, intelligence, interrogation, or law
enforcement as the President considers appropriate. The members
of any particular interagency team may vary depending on the
skills most relevant to a particular case.
(3) Designations.--
(A) High-value detainee.--An individual placed in
military custody under section 2 shall, while subject
to interrogation and determination of status under this
section, be referred to as a ``high-value detainee'' if
the individual meets the criteria for treatment as such
established in the regulations required by subsection
(d).
(B) High-value detainee interrogation group.--An
interagency team established under this subsection
shall be known as a ``high-value detainee interrogation
group''.
(b) Interrogations.--
(1) Interrogations to be conducted by high-value detainee
interrogation group.--A high-value detainee interrogation group
established under this section shall conduct the interrogations
of each high-value detainee.
(2) Utilization of other personnel.--A high-value detainee
interrogation group may utilize military and intelligence
personnel, and Federal, State, and local law enforcement
personnel, in conducting interrogations of a high-value
detainee. The utilization of such personnel for the
interrogation of a detainee shall not alter the responsibility
of the interrogation group for the coordination within the
Executive Branch of the interrogation of the detainee or the
determination of status and disposition of the detainee under
this Act.
(3) Inapplicability of certain statement and rights.--A
individual who is suspected of being an unprivileged enemy
belligerent shall not, during interrogation under this
subsection, be provided the statement required by Miranda v.
Arizona (384 U.S. 436 (1966)) or otherwise be informed of any
rights that the individual may or may not have to counsel or to
remain silent consistent with Miranda v. Arizona.
(c) Determinations of Status.--
(1) Preliminary determination by high-value detainee
interrogation group.--The high-value detainee interrogation
group responsible for interrogating a high-value detainee under
subsection (b) shall make a preliminary determination whether
or not the detainee is an unprivileged enemy belligerent. The
interrogation group shall make such determination based on the
result of its interrogation of the individual and on all
intelligence information available to the interrogation group.
The interrogation group shall, after consultation with the
Director of National Intelligence, the Director of the Federal
Bureau of Investigation, and the Director of the Central
Intelligence Agency, submit such determination to the Secretary
of Defense and the Attorney General.
(2) Final determination.--As soon as possible after receipt
of a preliminary determination of status with respect to a
high-value detainee under paragraph (1), the Secretary of
Defense and the Attorney General shall jointly submit to the
President and to the appropriate committees of Congress a final
determination whether or not the detainee is an unprivileged
enemy belligerent for purposes of this Act. In the event of a
disagreement between the Secretary of Defense and the Attorney
General, the President shall make the final determination.
(3) Deadline for determinations.--All actions required
regarding a high-value detainee under this subsection shall, to
the extent practicable, be completed not later than 48 hours
after the detainee is placed in military custody under section
2.
(d) Regulations.--
(1) In general.--The operations and activities of high-
value detainee interrogation groups under this section shall be
governed by such regulations and guidance as the President
shall establish for purposes of implementing this section. The
regulations shall specify the officer or officers of the
Executive Branch responsible for determining whether an
individual placed in military custody under section 2 meets the
criteria for treatment as a high-value detainee for purposes of
interrogation and determination of status by a high-value
interrogation group under this section.
(2) Criteria for designation of individuals as high-value
detainees.--The regulations required by this subsection shall
include 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 or in a terrorist group
affiliated with al Qaeda.
(E) Such other matters as the President considers
appropriate.
(3) Paramount purpose of interrogations.--The regulations
required by this subsection shall provide that the paramount
purpose of the interrogation of high-value detainees under this
Act shall be the protection of United States civilians and
United States civilian facilities through thorough and
professional interrogation for intelligence purposes.
(4) Submittal to congress.--The President shall submit the
regulations and guidance required by this subsection to the
appropriate committees of Congress not later than 60 days after
the date of the enactment of this Act.
SEC. 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(c)(2).
(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(c)(2), the alien shall be treated as an
unprivileged enemy belligerent for purposes of subsection (a).
SEC. 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(c)(2) 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.
SEC. 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) 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.
(9) 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.
SEC. 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.
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