[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.
                                 <all>