Short title

This Act may be cited as the

Military Detainee Procedures Improvement Act of 2011

Reaffirmation of authority of the President to detain unprivileged enemy belligerents in connection with the continuing armed conflict with al Qaeda, the Taliban, and affiliated groups

(a)

In general

Congress reaffirms that the United States is in an armed conflict with al Qaeda, the Taliban, and affiliated groups and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad. (b)

Authority

Congress reaffirms that the President is authorized to detain unprivileged enemy belligerents in connection with the continuing armed conflict with al Qaeda, the Taliban, and affiliated groups, regardless of the place of capture, until the termination of hostilities. (c)

Rule of construction

The authority described in subsection (b) 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 al Qaeda, the Taliban, and affiliated groups, or in any other armed conflict. (d)

Definitions

In this section: (1)The term hostilities means any conflict subject to the laws of war. (2)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). (3)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 al Qaeda, the Taliban, or an affiliated group against which the Authorization for Use of Military Force (Public Law 107–40) applies.

Military custody for members of al Qaeda, the Taliban, and affiliated groups subject to the Authorization for Use of Military Force

(a)

Custody pending disposition under law of war

(1)

In general

Except as provided in paragraph (3), an unprivileged enemy belligerent shall be held in military custody pending disposition under the law of war. (2)

Disposition under law of war

The disposition of a person under the law of war as described in paragraph (1) may include the following: (A)Long-term detention under the law of war without trial until the end of hostilities against the nations, organizations, and persons subject to the Authorization for Use of Military Force. (B)Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)). (C)Subject to the availability of appropriations— (i)transfer for trial by an alternative court or competent tribunal having lawful jurisdiction; or (ii)transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity under section 4. (3)

Waiver for national security

The Secretary of Defense may waive the requirement under paragraph (1) if the Secretary submits to Congress certification in writing that such a waiver is in the national security interests of the United States. (b)

Definitions

In this section: (1)The term hostilities means any conflict subject to the laws of war. (2)The term privileged belligerent means a person 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). (3)The term unprivileged enemy belligerent means a person (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 al Qaeda, the Taliban, or an affiliated group against which the Authorization for Use of Military Force (Public Law 107–40) applies. (c)

Effective date

This section shall take effect on the date of the enactment of this Act, and shall apply with respect to unprivileged enemy belligerents who are taken into the custody or brought under the control of the United States on or after that date.

Permanent requirements for certifications relating to the transfer of detainees at Naval Station Guantanamo Bay, Cuba, to foreign countries and other foreign entities

(a)

Certification required prior To transfer

(1)

In general

Except as provided in paragraph (2), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or 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 subsection (b) not later than 30 days before the transfer of the individual. (2)

Exception

Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo 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 the issuance of any such order. (b)

Certification

A certification described in this subsection is a written certification made by the Secretary of Defense, with the concurrence of the Secretary of State, that the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo is to be transferred— (1)is not a designated state sponsor of terrorism or a designated foreign terrorist organization; (2)maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility; (3)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; (4)has agreed to take effective actions to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future; (5)has taken such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity; and (6)has agreed to share with the United States any information that— (A)is related to the individual or any associates of the individual; and (B)could affect the security of the United States, its citizens, or its allies. (c)

Prohibition and waiver in cases of prior confirmed recidivism

(1)

Prohibition

Except as provided in paragraph (3), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise made available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or 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 who was detained at United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity. (2)

Waiver

The Secretary may waive the prohibition in paragraph (1) if the Secretary determines that a transfer otherwise covered by that paragraph is in the national security interests of the United States and includes, as part of the certification described in subsection (b) relating to such transfer, the determination of the Secretary under this paragraph. (3)

Exception

Definitions

In this section: (1)The term individual detained at Guantanamo means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who— (A)is not a citizen of the United States or a member of the Armed Forces of the United States; and (B)is— (i)in the custody or under the control of the Department of Defense; or (ii)otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba. (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). (e)

Repeal of superseded authority

Section 1033 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111–383) is repealed.

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 described in subsection (c) 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)

Covered individuals

An individual described in this subsection is any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who— (1)is not a citizen of the United States or a member of the Armed Forces of the United States; and (2)is— (A)in the custody or under the control of the Department of Defense; or (B)otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba. (d)

Repeal of superseded authority

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).

Uniform procedures for detention review and status determination regarding suspected unprivileged enemy belligerents

The Detainee Treatment Act of 2005 (title XIV of Public Law 109–163; 10 U.S.C. 801 note) is amended by inserting after section 1405 the following new sections:

1405A.

Procedures for annual detention review

(a)

Procedures

(1)

In general

Not later than 180 days after the date of the enactment of this section, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for an annual review process to recommend to the President whether to release, transfer, or continue to detain in military custody each detainee described in subsection (b), subject to the exceptions in subsection (c). (2)

Recommendations

Recommendations pursuant to the annual review process shall be made by a panel consisting of military experts in military operations, intelligence, and anti-terrorism matters, and shall not bind the President. (b)

Covered detainees

A detainee described in this subsection is any individual who is currently detained by the United States in military custody at United States Naval Station Guantanamo Bay, Cuba, as an unprivileged enemy belligerent. (c)

Exceptions

A detainee shall not be treated as a detainee described in subsection (b) under circumstances as follows: (1)In the case of a detainee upon whom charges have been served in accordance with section 948s of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)), until after final judgment has been reached on such charges. (2)In the case of a detainee who has been convicted by a military commission under chapter 47A of such title (as so amended) of an offense under subchapter VIII of that chapter (as so amended), until after the detainee has completed his sentence. (3)If the detainee has been designated by the Department of Defense for release or transfer out of United States custody or has been ordered released by a court of competent jurisdiction. (d)

Considerations

In considering the recommendation to make regarding a detainee under the annual review process, a panel shall determine— (1)whether the detainee 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 detainee, including— (A)the likelihood the detainee will resume terrorist activity if transferred or released; (B)the likelihood the detainee will reestablish ties with an organization engaged in hostilities against the United States or its allies if transferred or released; (C)the likelihood of family, tribal, or government rehabilitation or support for the detainee if transferred or released; (D)the likelihood the detainee may be subject to trial by military commission; and (E)any law enforcement interest in the detainee. (e)

Definitions

In this section: (1)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. (2)The term hostilities means any conflict subject to the laws of war. (3)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). (4)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 al Qaeda, the Taliban, or an affiliated group against which the Authorization for Use of Military Force (Public Law 107–40) applies.

1405B.

Procedures for status determination of unprivileged enemy belligerents

(a)

In general

Not later than 90 days after the date of the enactment of this section, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of unprivileged enemy belligerents under the custody or control of the United States who are captured after the date of the enactment of this section, regardless of the place of capture. (b)

Elements of procedures

The procedures required by this section shall provide for the following: (1)A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent. (2)An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent. (c)

Report on modification of procedures

The Secretary of Defense shall submit to the appropriate committees of Congress a report on any modification of the procedures submitted under this section. The report on any such modification shall be so submitted not later than 60 days before the date on which such modification goes into effect. (d)

Definitions

In this section, the terms appropriate committees of Congress and unprivileged enemy belligerent have the meaning given such terms in section 1405A(e).

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.

Sense of Congress on targeting of individuals involved in terrorist attacks against the United States

(a)

Findings

Congress makes the following findings: (1)Al Qaeda and affiliated groups planned and perpetrated the heinous terrorist attacks of September 11, 2001, against our Nation, and have planned and attempted numerous other terrorist attacks against the United States before and after September 11, 2001. (2)Al Qaeda and its affiliated organizations continue to actively plot attacks against the United States and its citizens. (3)The United States Government has disrupted several attacks against the United States and its citizens in recent months, including attacks attempting specifically to target civilians. (4)Under the Authorization for Use of Military Force (Public Law 107–40), the President is authorized to use all necessary and appropriate force against nations, terrorist organizations, and individuals the President determines planned, authorized, committed, or aided the September 11, 2001, attacks in order to prevent future acts of international terrorism against the United States. (5)On May 21, 2009, President Barack Obama stated “[n]ow let me be clear: we are indeed at war with al Qaeda and its affiliates”. (6)The United States has a legitimate right to defend itself against imminent threats to its sovereign territory and its citizens. (7)The United States Government has stated its commitment to seek to defend the United States against al Qaeda and affiliated groups by using all instruments of power at its disposal, including diplomatic, intelligence, military, legal, and economic instruments. (8)The United States Armed Forces are engaged in active combat operations against al Qaeda and its affiliates, including through combat operations in Afghanistan and through lethal action operations against legitimate military objectives. (9)Decisions to target legitimate military objectives for lethal action are rightfully made by the President, as Commander in Chief of the United States Armed Forces, and military commanders; (10)The United States Government believes that al Qaeda and its affiliates continue to actively plot terrorist attacks, and recruit terrorist operatives to carry out attacks against the United States. (b)

Sense of Congress

It is the sense of Congress— (1)that, under the Authorization for Use of Military Force, the President has the authority to use lethal force against legitimate military objectives, including nations, organizations, and persons determined by the President to be members of al Qaeda and its affiliated terrorist organizations that plot, facilitate, or undertake terrorist attacks against the United States and its citizens, and that pose an imminent threat by actively plotting or participating in terrorist attacks against the United States or its interests that cannot be otherwise obviated due to a host nation’s refusal or inability to arrest, detain, or prosecute the individuals or organizations; (2)that the President, as Commander in Chief of the United States Armed Forces, has the authority and responsibility, along with his advisors and commanders of the United States Armed Forces, to identify legitimate military objectives and to determine the most appropriate and efficacious circumstances and tactical means for carrying out lethal action against legitimate military objectives; and (3)to reaffirm its commitment to ensuring that lethal action is undertaken in accordance with United States obligations under international law, including its obligations to uphold the principles of military necessity, discrimination, and proportionality, and to conduct timely, rigorous, and sustained oversight over lethal action policies, decisions, and operations.

Sense of Congress on justice for victims and families of those killed or injured in al Qaeda attacks on the United States

(a)

Findings

Congress makes the following findings: (1)Al Qaeda planned and carried out attacks against United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, on August 7, 1998, resulting in 224 deaths, including 12 United States citizens and 3 members of the United States Armed Forces, and injuries to approximately 4,085 people. (2)Al Qaeda planned and carried out the bombing of the U.S.S. Cole in Aden, Yemen, on October 12, 2000, resulting in the deaths of 17 American sailors and serious injuries to 39 other members of the crew of the U.S.S. Cole. The attack disabled an American warship. (3)Al Qaeda and its affiliated groups planned and carried out the attacks against the United States in New York, Virginia, and Pennsylvania on September 11, 2001, resulting in the deaths of nearly 3,000 men, women, and children. The overwhelming majority of casualties were civilians, including nationals of over 70 countries. Among the targets attacked was the Pentagon, the official headquarters of the United States Armed Forces, where 184 people were killed. (4)Under the Authorization for Use of Military Force (Public Law 107–40), the President is authorized to use all necessary and appropriate force against those nations, terrorist organizations, and persons the President determines planned, authorized, committed, or aided the September 11, 2001, attacks in order to prevent future acts of international terrorism against the United States. (5)Al Qaeda and its affiliated groups continue to actively plot attacks against the United States and its citizens, including— (A)the attempted bombing on December 25, 2009, of a civilian airliner carrying nearly 300 innocent people near Detroit, Michigan; (B)the attempted bombing of Times Square in New York, New York, on May 3, 2010; and (C)an attempted parcel bomb attack directed to addresses in Chicago, Illinois, that was disrupted outside the United States on October 29, 2010. (6)The criminal trial of Ahmed Ghailani, who was captured on July 25, 2004, for his participation in the al Qaeda bombing of the United States embassies in East Africa resulted in a conviction on November 17, 2010, on a single count of conspiracy and a finding of not guilty on 284 other counts including all counts of murder of United States citizens. (7)On May 21, 2009, President Barack Obama stated [n]ow let me be clear: we are indeed at war with al Qaeda and its affiliates. (8)The 10-year anniversary of the bombing of the U.S.S. Cole was marked on October 12, 2010, and an alleged key participant in the bombing, Abd al-Rahim al-Nashiri, who was first charged in preparation for trial by military commission in June, 2008, remains in detention without charges at United States Naval Station Guantanamo Bay, Cuba. (9)The 10-year anniversary of the al Qaeda attacks on the United States on September 11, 2001, occurs this year. (10)The alleged mastermind of those attacks on the United States, Khalid Sheikh Mohammed, was first charged in preparation for trial by military commission on April 15, 2008, and charges were lawfully referred to a military commission on May 9, 2008. (11)According to media reports at the time, Khalid Sheikh Mohammed and his co-conspirators were prepared to plead guilty to their participation in those attacks on the United States before a military commission. (12)Khalid Sheikh Mohammed has made statements, including those during his Combatant Status Review Tribunal held at United States Naval Station Guantanamo Bay, that he is responsible for planning those attacks on the United States. (13)One of the first acts of the Obama Administration upon taking office was to suspend all military commissions on January 21, 2009. (14)The Attorney General announced on November 13, 2009, that the cases of five detainees held at United States Naval Station Guantanamo Bay should be prosecuted by military commission, including the alleged bomber of the U.S.S. Cole, but all these cases have not gone forward to trial. (15)Congress has twice enacted a statute on military commissions, once at the request of the George W. Bush Administration in 2006, and a second time, with significant reforms and changes with the assistance of the Department of Justice and the Department of Defense, at the request of the Obama Administration in 2009. (b)

Sense of Congress

It is the sense of Congress that— (1)the military commissions system enacted by Congress and approved by the President is fully consistent with the rule of law and the international obligations of the United States, including the Geneva Conventions; (2)the attacks on the United States by al Qaeda and its affiliated groups to which the Authorization for Use of Military Force applies are violations of the law of war for which trial by military commission has traditionally been used to mete out justice during the history of the United States; and (3)members of al Qaeda and its affiliated groups who have long been detained under the law of war and who are, in the opinion of the cognizant officials, responsible for attacks against the United States, should be tried without further delay by a military commission held at United States Naval Station, Guantanamo Bay, Cuba.