[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3707 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 3707

  To provide for habeas corpus review for certain enemy belligerents 
    engaged in hostilities against the United States, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 4, 2010

  Mr. Graham 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 certain enemy belligerents 
    engaged in hostilities against the United States, 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 ``Terrorist Detention Review Reform 
Act''.

SEC. 2. HABEAS CORPUS REVIEW FOR CERTAIN UNPRIVILEGED ENEMY 
              BELLIGERENTS.

    (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 
entitled ``An Act to establish a uniform Law on the Subject of 
Bankruptcies'', approved November 6, 1978 (Public Law 95-598; 92 Stat. 
2672), and inserting the following:
``Sec. 2256. Habeas corpus review for certain unprivileged enemy 
              belligerents
    ``(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 `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;
            ``(3) the term `covered individual' means an individual 
        who--
                    ``(A) is held by the United States at Naval 
                Station, Guantanamo Bay, Cuba, or the United States 
                seeks to hold as an unprivileged enemy belligerent; and
                    ``(B) is subject to the habeas corpus jurisdiction 
                of the Federal courts;
            ``(4) the term `hostilities' means any conflict subject to 
        the laws of war;
            ``(5) 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, done at Geneva August 12, 1949 (6 UST 3316); 
        and
            ``(6) the term `unprivileged enemy belligerent' means an 
        individual (other than a privileged belligerent) who before, 
        on, or after September 11, 2001--
                    ``(A) has engaged in hostilities against the United 
                States or its coalition partners;
                    ``(B) has purposefully and materially supported 
                hostilities against the United States or its coalition 
                partners; or
                    ``(C) was a member of, part of, or operated in a 
                clandestine, covert, or military capacity 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 the Taliban, al Qaeda, 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 unprivileged enemy belligerents in 
        connection with the continuing armed conflict with the Taliban, 
        al Qaeda, 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 belligerents in the continuing armed conflict with the 
        Taliban, al Qaeda, 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 Terrorist Detention Review Reform Act.
            ``(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 
        brought after the date of enactment of the Terrorist Detention 
        Review Reform Act 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 1404(a) of this 
        title, any court of the United States shall transfer a case 
        within the exclusive jurisdiction of the District Court under 
        this section.
    ``(d) Notice of Organizations Considered Associated Forces.--
            ``(1) 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 Government may provide 
        notice to the District Court that the Government considers a 
        particular organization or organizations to be among the 
        associated forces of the Taliban or al Qaeda.
            ``(2) Deference to the executive.--In determining whether a 
        particular organization is among the associated forces of the 
        Taliban or al Qaeda, the District Court shall give utmost 
        deference to the inclusion of the organization in a notice 
        under this subsection.
    ``(e) 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.
                    ``(B) Burden of proof.--The burden shall be on the 
                Government to prove by a preponderance of the evidence 
                that the covered individual is an unprivileged enemy 
                belligerent.
                    ``(C) Rule of construction.--The standard and 
                burden under this paragraph shall not be construed to 
                impose or imply the existence of a standard or burden 
                on the detention power of the President for any other 
                purpose or in any other proceeding.
                    ``(D) Evidence.--The District Court shall consider 
                the totality of the circumstances and the evidence as a 
                whole in determining whether the Government has carried 
                its burden. Any evidence relied upon by the Government 
                in its declaration shall be subject to a rebuttable 
                presumption that such evidence is authentic.
                    ``(E) Presumptions related to membership.--
                            ``(i) Presumption related to military 
                        training.--Upon a showing that a covered 
                        individual knowingly obtained military-style 
                        training from the Taliban, al Qaeda, or 
                        associated forces, there shall be a rebuttable 
                        presumption that the covered individual is an 
                        unprivileged enemy belligerent.
                            ``(ii) Presumption against withdrawal of 
                        membership.--
                                    ``(I) In general.--Upon a 
                                determination that the Government has 
                                proved by a preponderance of the 
                                evidence that a covered individual was 
                                an unprivileged enemy belligerent at a 
                                particular time before capture, there 
                                shall be a rebuttable presumption that 
                                the covered individual remained an 
                                unprivileged enemy belligerent at the 
                                time of capture.
                                    ``(II) Rebuttal of presumption 
                                related to membership.--A covered 
                                individual may rebut the presumption 
                                under subclause (I) only by proving by 
                                clear and convincing evidence that the 
                                covered individual withdrew from the 
                                organization in question prior to 
                                capture.
                                    ``(III) Limitation.--A covered 
                                individual who was an unprivileged 
                                enemy belligerent at the time of 
                                capture shall remain subject to 
                                detention under this chapter, without 
                                regard to any argument or evidence that 
                                the covered individual sought to 
                                withdraw from the organization in 
                                question after capture.
            ``(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; and
                            ``(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 
                        unprivileged enemy belligerent, 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 under this section 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 probative evidence, 
                including hearsay from military, intelligence, and law 
                enforcement sources. The District Court may consider 
                the reliability of hearsay evidence, as determined by 
                the totality of the circumstances, for the purposes of 
                determining its probative weight, but not its 
                admissibility.
                    ``(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)(D) 
                only if the District 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 District 
                Court of the disputed matter.
            ``(4) Voluntariness.--
                    ``(A) Exclusion of statements obtained by torture 
                or cruel, inhuman, or degrading treatment.--No 
                statement obtained by the use of torture or by cruel, 
                inhuman, or degrading treatment (as defined by section 
                1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 
                2000dd)), whether or not under color of law, shall be 
                admissible in a proceeding to consider an application 
                for habeas corpus by or on behalf of any covered 
                individual under this section, except against a person 
                accused of torture or such treatment as evidence that 
                the statement was made.
                    ``(B) In general.--A statement of the covered 
                individual applying for habeas corpus may be admitted 
                into evidence in a proceeding considering the 
                application for habeas corpus only upon a finding 
                that--
                            ``(i) the statement was made incident to 
                        lawful conduct during military operations at 
                        the point of capture or during closely related 
                        active combat engagement, and the interests of 
                        justice would best be served by admission of 
                        the statement into evidence; or
                            ``(ii) the statement was voluntarily given.
                    ``(C) Determination of voluntariness.--In 
                determining whether a statement was voluntarily given, 
                the District Court shall consider the totality of the 
                circumstances, including, as appropriate, the 
                following:
                            ``(i) The details of the taking of the 
                        statement, accounting for the circumstances of 
                        the conduct of military and intelligence 
                        operations during hostilities.
                            ``(ii) The characteristics of the 
                        applicant, such as military training, age, and 
                        education level.
                            ``(iii) The lapse of time, change of place, 
                        or change in identity of the questioners 
                        between the statement sought to be admitted and 
                        any prior questioning of the applicant.
                    ``(D) Presumption of voluntariness for certain 
                statements against interest.--There shall be a 
                rebuttable presumption in favor of the voluntariness of 
                statements against interest given before a Combat 
                Status Review Tribunal, Administrative Review Board, or 
                comparable review board or as a result of treatment in 
                compliance with the Army Field Manual.
            ``(5) Reliability.--There shall be a rebuttable presumption 
        in favor of the reliability of statements against interest 
        given before a Combat Status Review Tribunal, Administrative 
        Review Board, or comparable review board or as a result of 
        treatment in compliance with the Army Field Manual.
            ``(6) Attorneys.--
                    ``(A) In general.--For the purposes of habeas 
                corpus proceedings under this section only, a covered 
                individual shall be represented by an attorney if the 
                attorney--
                            ``(i) is retained by or on behalf of 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.
            ``(7) Video hearings.--The District Court shall not require 
        the physical 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)(D), although the District Court in 
        its discretion may permit a detainee to participate from 
        Guantanamo Bay, Cuba, or elsewhere, 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.
    ``(f) Exhaustion of Military Commission Procedures and Stay Pending 
Executive Transfer Efforts.--
            ``(1) Stay of applications pending military commissions.--
        Any application for habeas corpus that is pending on or after 
        the date of enactment of the Terrorist Detention Review Reform 
        Act 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 by or 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 or on behalf of 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 by or on behalf of a covered individual 
                in custody pursuant to the judgment of a military 
                commission under chapter 47A of title 10 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 
                judgment.
                    ``(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 under chapter 47A of 
                title 10, 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.
            ``(3) Stay pending executive transfer efforts.--Any 
        application for habeas corpus that is pending on or after the 
        date of enactment of the Terrorist Detention Review Reform Act 
        by or on behalf of a covered individual who has been designated 
        for transfer or release to another country, and for whom good 
        faith efforts are being made to facilitate such transfer by the 
        Executive Branch, shall be stayed pending resolution of the 
        transfer efforts.
    ``(g) 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--
                    ``(A) the factual predicate for the claim could not 
                have been discovered previously through the exercise of 
                due diligence; and
                    ``(B) the 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.
    ``(h) Release.--
            ``(1) Covered individuals ordered released.--
                    ``(A) In general.--No court shall order the release 
                of a covered individual into the United States, its 
                territories, or possessions.
                    ``(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 immigration status to a covered individual described 
                in subparagraph (A) that may permit the covered 
                individual to enter, be admitted, or otherwise be at 
                liberty in 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 unprivileged enemy belligerents by the 
                Department of Defense and in a manner consistent with 
                safety and security of United States personnel and 
                citizens. 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 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) Clerical Amendment.--The table of sections at the beginning of 
chapter 153 of such title is amended by adding at the end the following 
new item:

``2256. Habeas corpus review for certain unprivileged enemy 
                            belligerents.''.
    (c) Effective Date.--The amendments made by this section 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>