[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 968 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 968

   To provide for certain processes and limitations relating to the 
 detention of certain individuals by the United States, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 9, 2011

 Mr. McKeon (for himself, Mr. Thornberry, Mr. Schilling, Mr. Wittman, 
   Mr. Forbes, Mr. Griffin of Arkansas, Mr. Rooney, Mr. Shuster, Mr. 
Wilson of South Carolina, Mr. Akin, Mr. Lamborn, Mr. Rogers of Alabama, 
   Mr. Turner, Mr. West, Mr. Fleming, Mr. LoBiondo, Mr. Conaway, Mr. 
Rigell, Mr. Coffman of Colorado, Mr. Runyan, Mr. Miller of Florida, Mr. 
Kline, Mr. Heck, Mr. Palazzo, and Mr. Brooks) introduced the following 
      bill; which was referred to the Committee on Armed Services

_______________________________________________________________________

                                 A BILL


 
   To provide for certain processes and limitations relating to the 
 detention of certain individuals by 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Detainee Security 
Act of 2011''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Process for the review of eligibility for continued detention 
                            of individuals detained at Naval Station, 
                            Guantanamo Bay, Cuba.
Sec. 4. Requirement for military custody for members of al Qaeda, the 
                            Taliban, and associated forces subject to 
                            the Authorization for Use of Military 
                            Force.
Sec. 5. Prohibitions relating to the transfer and release of certain 
                            detainees.
Sec. 6. Limitation on authority to implement Executive Order of March 
                            7, 2011.
Sec. 7. Affirmation of armed conflict with al-Qaeda, the Taliban, and 
                            associated forces.
Sec. 8. Prohibition on family member visitation of individuals detained 
                            at Naval Station, Guantanamo Bay, Cuba.
Sec. 9. Permanent prohibition on use of funds to construct or modify 
                            facilities in the United States to house 
                            detainees transferred from Naval Station 
                            Guantanamo Bay, Cuba.
Sec. 10. Clarification of right to plead guilty in trial of capital 
                            offense by military commission.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) The term ``individual detained at Guantanamo'' means 
        any individual who is located at United States Naval Station, 
        Guantanamo Bay, Cuba, on or after March 7, 2011, who--
                    (A) is not a citizen of the United States or a 
                member of the Armed Forces of the United States; and
                    (B) is in the custody or under the effective 
                control of the Department of Defense.
            (2) The term ``appropriate committees of Congress'' means--
                    (A) the Committee on Armed Services and the Select 
                Committee on Intelligence of the Senate; and
                    (B) the Committee on Armed Services and the 
                Permanent Select Committee on Intelligence of the House 
                of Representatives.

SEC. 3. PROCESS FOR THE REVIEW OF ELIGIBILITY FOR CONTINUED DETENTION 
              OF INDIVIDUALS DETAINED AT NAVAL STATION, GUANTANAMO BAY, 
              CUBA.

    (a) Restrictions on Review.--Any administrative board or panel 
established by any department or agency of the Federal Government for 
the purpose of conducting reviews to determine the eligibility for 
continued detention of an individual detained at Guantanamo shall be 
subject to the following restrictions:
            (1) Such an individual whose eligibility for continued 
        detention is being reviewed shall not be represented by legal 
        counsel in any proceeding of the board or panel. Such an 
        individual may be assisted by a military personal 
        representative with the appropriate security clearance.
            (2) A review of an individual's eligibility for continued 
        detention may not take place sooner than 21 days after the 
        individual first becomes an individual detained at Guantanamo.
            (3) Recommendations pursuant to any such review shall be 
        made by a panel consisting of military experts in operations, 
        intelligence, and counterterrorism matters.
            (4) The Government's submission to the board or panel 
        regarding the threat posed by such an individual and any 
        mitigating information described in subsection (b)(4) shall be 
        provided to the military personal representative for the 
        individual. Where it is necessary to protect national security, 
        including the protection of intelligence sources and methods, 
        the board or panel may determine that the military personal 
        representative must receive a sufficient substitute or summary 
        of classified information, rather than the underlying 
        information.
            (5) Such an individual shall not be subject to any such 
        review under circumstances as follows:
                    (A) In the case of such an individual upon whom 
                charges have been served in accordance with section 
                948s of title 10, United States Code, until after final 
                judgment has been reached on such charges.
                    (B) In the case of such an individual who has been 
                convicted by a military commission under chapter 47A of 
                such title of an offense under subchapter VIII of that 
                chapter, until after the individual has completed his 
                sentence.
                    (C) In the case of such an individual who has been 
                ordered released by a court of competent jurisdiction.
    (b) Considerations.--In determining the recommendation to make 
regarding an individual detained at Guantanamo under any review 
process, a panel shall consider--
            (1) whether the individual represents a continuing threat 
        to the United States or its allies; and
            (2) whether there are other factors that form a need for 
        continued detention of the individual, including--
                    (A) the likelihood the individual will resume 
                terrorist activity if transferred or released;
                    (B) the likelihood the individual will reestablish 
                ties with an organization engaged in hostilities 
                against the United States or its allies if transferred 
                or released;
                    (C) the intelligence value of information known by 
                the individual;
                    (D) the likelihood of family, tribal, or government 
                rehabilitation or support for the individual if 
                transferred or released; and
                    (E) the likelihood the individual may be subject to 
                trial by military commission; and
            (3) with respect to consideration of whether to transfer an 
        individual to the custody of a foreign country, whether that 
        country--
                    (A) is not a designated state sponsor of terrorism 
                or a designated foreign terrorist organization;
                    (B) maintains effective control over each detention 
                facility in which an individual is to be detained if 
                the individual is to be housed in a detention facility;
                    (C) is not, as of the date of the certification, 
                facing a threat that is likely to substantially affect 
                its ability to exercise control over the individual;
                    (D) has agreed to take effective steps to ensure 
                that the individual cannot take action to threaten the 
                United States, its citizens, or its allies in the 
                future;
                    (E) has taken such steps as the Secretary 
                determines are necessary to ensure that the individual 
                cannot engage or re-engage in any terrorist activity;
                    (F) has agreed to share any information with the 
                United States that--
                            (i) is related to the individual or any 
                        associates of the individual; and
                            (ii) could affect the security of the 
                        United States, its citizens, or its allies; and
                    (G) has agreed to allow appropriate agencies of the 
                United States to have access to the individual, if 
                requested; and
            (4) any information reviewed by the officials preparing the 
        Government's submission to the board or panel that tends to 
        mitigate the threat posed by the individual.

SEC. 4. REQUIREMENT FOR MILITARY CUSTODY FOR MEMBERS OF AL QAEDA, THE 
              TALIBAN, AND ASSOCIATED FORCES SUBJECT TO THE 
              AUTHORIZATION FOR USE OF MILITARY FORCE.

    (a) In General.--Chapter 3 of title 10, United States Code, is 
amended by adding at the end the following new section:

``SEC. 130E. REQUIREMENT FOR MILITARY CUSTODY FOR MEMBERS OF AL QAEDA, 
              THE TALIBAN, AND ASSOCIATED FORCES SUBJECT TO THE 
              AUTHORIZATION FOR USE OF MILITARY FORCE.

    ``(a) Custody Pending Disposition Determination.--(1) Except as 
provided in paragraph (3), an individual who is eligible for detention 
pursuant to the Authorization for Use of Military Force (Public Law 
107-40; 50 U.S.C. 1541 note) (as such term is defined in section 
130f(c)(1) of this title) shall be held in military custody pending a 
decision by the President on the disposition of the person.
    ``(2) The disposition of a person as described in paragraph (1) may 
include the following:
            ``(A) Long-term detention without trial until the end of 
        hostilities against the nations, organizations, and persons 
        subject to the Authorization for Use of Military Force (Public 
        Law 107-40; 50 U.S.C. 1541 note).
            ``(B) Trial under chapter 47A of title 10, United States 
        Code.
    ``(3) The Secretary of Defense, in consultation with the Director 
of National Intelligence, may waive the requirement under paragraph (1) 
if the Secretary submits to the appropriate committees of Congress 
certification in writing that such a waiver is in the national security 
interests of the United States.
    ``(b) Definition.--In this section, The term `appropriate 
committees of Congress' means--
            ``(1) the Committee on Armed Services and the Select 
        Committee on Intelligence of the Senate; and
            ``(2) the Committee on Armed Services and the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
such chapter is amended by adding at the end the following new item:

``130e. Requirement for military custody for members of al Qaeda, the 
                            Taliban, and associated forces subject to 
                            the Authorization for Use of Military 
                            Force.''.
    (c) Effective Date.--Section 130e of title 10, United States Code, 
as added by subsection (a) shall take effect on March 4, 2011, and 
shall apply with respect to individuals eligible for detention pursuant 
to the Authorization for Use of Military Force (Public Law 107-40; 50 
U.S.C. 1541 note) (as such term is defined in section 130f(c)(1) of 
such title, as so added) who are taken into the custody or brought 
under the control of the United States on or after that date.

SEC. 5. PROHIBITIONS RELATING TO THE TRANSFER AND RELEASE OF CERTAIN 
              DETAINEES.

    (a) In General.--Chapter 3 of title 10, United States Code, as 
amended by section 4, is further amended by adding at the end the 
following new section:

``SEC. 130F. PROHIBITIONS RELATING TO THE TRANSFER AND RELEASE OF 
              CERTAIN DETAINEES.

    ``(a) Prohibition on Transfer or Release to or Within the United 
States.--No individual who is eligible for detention pursuant to the 
Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 
1541 note) may be transferred or released to or within the United 
States, its territories, or possessions.
    ``(b) Limitation on Transfer to Foreign Countries.--(1) The 
Secretary of Defense may not transfer any individual described in 
paragraph (5) to the custody or effective control of the individual's 
country of origin, any other foreign country, or any other foreign 
entity unless the Secretary submits to Congress the certification 
described in paragraph (2) by not later than 30 days before the 
transfer of the individual.
    ``(2) The certification described in this paragraph is a written 
certification made by the Secretary of Defense, in consultation with 
the Secretary of State, that the government of the foreign country or 
the recognized leadership of the foreign entity to which the individual 
described in paragraph (5) is to be transferred--
            ``(A) is not a designated state sponsor of terrorism or a 
        designated foreign terrorist organization;
            ``(B) maintains effective control over each detention 
        facility in which an individual is to be detained if the 
        individual is to be housed in a detention facility;
            ``(C) is not, as of the date of the certification, facing a 
        threat that is likely to substantially affect its ability to 
        exercise control over the individual;
            ``(D) has agreed to take effective steps to ensure that the 
        individual cannot take action to threaten the United States, 
        its citizens, or its allies in the future;
            ``(E) has taken such steps as the Secretary determines are 
        necessary to ensure that the individual cannot engage or 
        reengage in any terrorist activity;
            ``(F) has agreed to share any information with the United 
        States that--
                    ``(i) is related to the individual or any 
                associates of the individual; and
                    ``(ii) could affect the security of the United 
                States, its citizens, or its allies; and
            ``(G) has agreed to allow appropriate agencies of the 
        United States to have access to the individual, if requested.
    ``(3)(A) The Secretary of Defense may not transfer any individual 
described in paragraph (5) to the custody or effective control of the 
individual's country of origin, any other foreign country, or any other 
foreign entity if there is a confirmed case of any individual described 
in paragraph (5) who was transferred to the foreign country or entity 
and subsequently engaged in any terrorist activity.
    ``(B) The Secretary of Defense may waive the prohibition in 
subparagraph (A) if the Secretary determines that such a transfer is in 
the national security interests of the United States and includes, as 
part of the certification described in paragraph (2) relating to such 
transfer, the determination of the Secretary under this paragraph.
    ``(4) Paragraphs (1) and (3) shall not apply to any action taken by 
the Secretary of Defense to transfer any individual described in 
paragraph (5) to effectuate an order affecting the disposition of the 
individual that is issued by a court or competent tribunal of the 
United States having lawful jurisdiction. The Secretary shall notify 
Congress promptly upon issuance of any such order.
    ``(5) An individual described in this paragraph is an individual 
who--
            ``(A) is not a citizen of the United States or a member of 
        the Armed Forces;
            ``(B) is in the custody or under the effective control of 
        the Department of Defense; and
            ``(C) is--
                    ``(i) not a national of Afghanistan and is under 
                detention at Bagram Air Base, Afghanistan; or
                    ``(ii) under detention at United States Naval 
                Station, Guantanamo Bay, Cuba, as of January 21, 2011.
    ``(c) Definitions.--In this section:
            ``(1) The term `individual who is eligible for detention 
        pursuant to the Authorization for Use of Military Force (Public 
        Law 107-40; 50 U.S.C. 1541 note)' includes--
                    ``(A) any individual who is part of, or is 
                substantially supporting, al-Qaeda, the Taliban, or 
                associated forces that are engaged in hostilities 
                against the United States or cobelligerents; and
                    ``(B) any individual who has engaged in hostilities 
                or has substantially supported hostilities against the 
                United States or its cobelligerents on behalf of or in 
                aid of al-Qaeda, the Taliban, or associated forces.
            ``(2) The term `foreign terrorist organization' means any 
        organization so designated by the Secretary of State under 
        section 219 of the Immigration and Nationality Act (8 U.S.C. 
        1189).''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
such chapter, as amended by section 4, is further amended by adding at 
the end the following new item:

``130f. Prohibitions relating to the transfer and release of certain 
                            detainees.''.

SEC. 6. LIMITATION ON AUTHORITY TO IMPLEMENT EXECUTIVE ORDER OF MARCH 
              7, 2011.

    (a) Limitation.--No action may be taken to implement the Executive 
Order entitled ``Periodic Review of Individuals Detained at Guantanamo 
Bay Naval Station Pursuant to the Authorization for Use of Military 
Force'' and dated March 7, 2011, until the Secretary of Defense submits 
to the appropriate committees of Congress a national security protocol 
applicable to each individual who is detained at United States Naval 
Station, Guantanamo Bay, Cuba, as of the date of March 7, 2011. Each 
such national security protocol shall include a description of each of 
the following:
            (1) The authority of an individual covered by the protocol 
        to have access to military or civilian legal representation, or 
        both, and any limitations on such access.
            (2) Any items that are considered contraband for such an 
        individual.
            (3) Any category of information that such an individual is 
        not permitted to discuss or include in any communications made 
        to persons other than Federal Government personnel and members 
        of the Armed Forces or materials the individual has or creates.
            (4) Any types of materials to which such an individual is 
        authorized to have access and the process by which such 
        materials, along with materials created by the individual, are 
        reviewed.
            (5) The nature of any communication such an individual is 
        permitted to have with any persons other than Federal 
        Government personnel and members of the Armed Forces, including 
        mail, phone calls, and video teleconferences, and the extent to 
        which any such communication is to be monitored.
            (6) Any meetings the individual is permitted to have with 
        any persons other than Federal Government personnel and members 
        of the Armed Forces and the extent to which such a meeting is 
        to be monitored.
            (7) Any category of information or material that may not be 
        provided to such an individual by persons other than Federal 
        Government personnel and members of the Armed Forces or by the 
        individual's military or civilian legal counsel or military 
        personal representative.
            (8) The manner in which any legal materials or 
        communications subject to review under the protocol will be 
        monitored for the protection of national security while also 
        ensuring that any applicable legal privileges are maintained 
        for purposes of litigation related to trial under chapter 47A 
        of title 10, United States Code, or a petition for habeas 
        corpus.
            (9) The measures planned to be taken to implement and 
        enforce the provisions of the security protocol.
    (b) Treatment of Classified Material in Security Protocols.--A 
security protocol submitted under subsection (a) shall be in 
unclassified form but may contain a classified annex.

SEC. 7. AFFIRMATION OF ARMED CONFLICT WITH AL-QAEDA, THE TALIBAN, AND 
              ASSOCIATED FORCES.

    (a) In General.--Chapter 3 of title 10, United States Code, as 
amended by sections 4 and 5, is further amended by adding at the end 
the following new section:

``SEC. 130G. AFFIRMATION OF ARMED CONFLICT WITH AL-QAEDA, THE TALIBAN, 
              AND ASSOCIATED FORCES.

    ``(a) Affirmation.--Congress affirms that--
            ``(1) the United States is engaged 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) the armed conflict with al-Qaeda, the Taliban, and 
        associated forces includes nations, organizations, and persons 
        who--
                    ``(A) are part of, or are substantially supporting, 
                al-Qaeda, the Taliban, or associated forces that are 
                engaged in hostilities against the United States or 
                cobelligerents; or
                    ``(B) have engaged in hostilities or have 
                substantially supported hostilities against the United 
                States or its cobelligerents on behalf of or in aid of 
                al-Qaeda, the Taliban, or associated forces; and
            ``(3) the President's authority includes the authority to 
        detain belligerents, including persons described in paragraph 
        (2) until the termination of hostilities.
    ``(b) Congressional Notification.--(1) The Secretary of Defense 
shall submit to Congress notification in writing--
            ``(A) not later than 90 days after the date of the 
        enactment of this section, of any entity that is considered an 
        associated force for purposes of this section as of such date; 
        and
            ``(B) after such date, whenever any entity is newly 
        considered an associated force for purposes of this section.
    ``(2) A notification under this subsection may be classified, as 
the Secretary determines is necessary.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
such chapter, as amended by sections 4 and 5, is further amended by 
adding at the end the following new item:

``130g. Affirmation of armed conflict with al-Qaeda, the Taliban, and 
                            associated forces.''.

SEC. 8. PROHIBITION ON FAMILY MEMBER VISITATION OF INDIVIDUALS DETAINED 
              AT NAVAL STATION, GUANTANAMO BAY, CUBA.

    The Secretary of Defense shall prohibit any person who is a family 
member of an individual detained at Guantanamo from visiting the 
individual at United States Naval Station, Guantanamo Bay, Cuba.

SEC. 9. PERMANENT PROHIBITION ON USE OF FUNDS TO CONSTRUCT OR MODIFY 
              FACILITIES IN THE UNITED STATES TO HOUSE DETAINEES 
              TRANSFERRED FROM NAVAL STATION GUANTANAMO BAY, CUBA.

    (a) In General.--No amounts authorized to be appropriated or 
otherwise made available to the Department of Defense may be used to 
construct or modify any facility in the United States, its territories, 
or possessions to house any individual detained at Guantanamo for the 
purposes of detention or imprisonment in the custody or under the 
control of the Department of Defense.
    (b) Exception.--The prohibition in subsection (a) shall not apply 
to any modification of facilities at United States Naval Station, 
Guantanamo Bay, Cuba.
    (c) Conforming Repeal.--Section 1034 of the Ike Skelton National 
Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383) is 
amended by striking subsections (a) and (b).

SEC. 10. CLARIFICATION OF RIGHT TO PLEAD GUILTY IN TRIAL OF CAPITAL 
              OFFENSE BY MILITARY COMMISSION.

    (a) Clarification of Right.--Section 949m(b)(2) of title 10, United 
States Code, is amended--
            (1) in subparagraph (C), by inserting before the semicolon 
        the following: ``, or a guilty plea was accepted and not 
        withdrawn prior to announcement of the sentence in accordance 
        with section 949i(b) of this title''; and
            (2) in subparagraph (D), by inserting ``on the sentence'' 
        after ``vote was taken''.
    (b) Pre-Trial Agreements.--Section 949i of such title is amended by 
adding at the end the following new subsection:
    ``(c) Pre-Trial Agreements.--(1) A plea of guilty made by the 
accused that is accepted by a military judge under subsection (b) and 
not withdrawn prior to announcement of the sentence may form the basis 
for an agreement reducing the maximum sentence approved by the 
convening authority, including the reduction of a sentence of death to 
a lesser punishment, or that the case will be referred to a military 
commission under this chapter without seeking the penalty of death. 
Such an agreement may provide for terms and conditions in addition to a 
guilty plea by the accused in order to be effective.
    ``(2) A plea agreement under this subsection may not provide for a 
sentence of death imposed by a military judge alone. A sentence of 
death may only be imposed by the votes of all members of a military 
commission concurring in the sentence of death as provided in section 
949m(b)(2)(D) of this title.''.
                                 <all>