1.Short title; table of
contents
(a)This Act may be cited
as the Detainee Security Act of
2011
.
(b)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.
2.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.
3.Process for the
review of eligibility for continued detention of individuals detained at Naval
Station, Guantanamo Bay, Cuba
(a)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)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.
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)Chapter 3 of title 10, United States Code, is amended by
adding at the end the following new section:
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)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)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)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.
5.Prohibitions
relating to the transfer and release of certain detainees
(a)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:
130f.Prohibitions
relating to the transfer and release of certain detainees
(a)Prohibition on
transfer or release to or within the United StatesNo
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)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)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.
.
6.Limitation on
authority to implement Executive Order of March 7, 2011
(a)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 protocolsA security protocol submitted under
subsection (a) shall be in unclassified form but may contain a classified
annex.
7.Affirmation of
armed conflict with al-Qaeda, the Taliban, and associated forces
(a)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:
130g.Affirmation of
armed conflict with al-Qaeda, the Taliban, and associated forces
(a)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)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.
.
8.Prohibition on
family member visitation of individuals detained at Naval Station, Guantanamo
Bay, CubaThe 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.
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)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)The
prohibition in subsection (a) shall not apply to any modification of facilities
at United States Naval Station, Guantanamo Bay, Cuba.
(c)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).
10.Clarification of
right to plead guilty in trial of capital offense by military
commission
(a)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)Section 949i of such title is amended by adding at the
end the following new subsection:
(c)(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.
.