II 112th CONGRESS 1st Session S. 553 IN THE SENATE OF THE UNITED STATES March 10, 2011 Mr. Graham (for himself, Mr. Chambliss, Mr. McCain, Ms. Ayotte, and Mr. Burr) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To provide for the review of challenges to the detention of unprivileged enemy belligerents and for other purposes.

1.

Short title

This Act may be cited as the Detention of Unprivileged Enemy Belligerents Act.

2.

Statement of authority

(a)

In general

Congress reaffirms that the United States is 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. (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 associated forces, regardless of the place of capture, until the termination of hostilities. (c)

Rule of construction

The authority under section 2256 of title 28, United States Code (as amended by section 3(a)), 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 associated forces, or in any other armed conflict.

3.

Habeas corpus review for certain unprivileged enemy belligerents

(a)

Habeas corpus review

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:

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)(i)is held by the United States at Naval Station, Guantanamo Bay, Cuba; or (ii)the United States otherwise holds or 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— (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)

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 Detention of Unprivileged Enemy Belligerents 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 Detention of Unprivileged Enemy Belligerents 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. (c)

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 (b)(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 al Qaeda or the Taliban. (2)

Deference to the executive

In determining whether a particular organization is among the associated forces of al Qaeda or the Taliban, the District Court shall give utmost deference to the inclusion of the organization in a notice under this subsection. (d)

Procedures

(1)

Burden of proof

(A)

In general

In a proceeding instituted by an application for habeas corpus by or on behalf of a covered individual under subsection (b)(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 that there is probable cause to believe 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)

Presumptions related to membership

(i)

Presumption related to attendance at a training camp

Upon a determination that the Government has proved that there is probable cause to believe that a covered individual received and executed orders from members of the Taliban, al Qaeda, or associated forces at a military-style training camp, or attended a military-style training camp or guesthouse of 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 that there is probable cause to believe that a covered individual was an unprivileged enemy belligerent at a particular time prior to the individual's capture, there shall be a rebuttable presumption that the covered individual remained an unprivileged enemy belligerent at the time of such capture. (II)

Rebuttal of presumption related to membership

A covered individual may rebut the presumption under subclause (I) only by showing that the covered individual took affirmative action to withdraw from the organization in question prior to the individual's capture. (III)

Limitation

A covered individual who was an unprivileged enemy belligerent at the time of the individual's 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 such capture. (E)

Order

(i)

Denial of application

If the District Court finds that the Government has met its burden of proof under subparagraph (B), then the District Court shall deny the application for habeas corpus. (ii)

Grant of application

If the District Court finds that the Government has failed to prove that there is probable cause to believe that the covered individual is an unprivileged enemy belligerent, then the District Court shall grant the application for habeas corpus and order the release of the covered individual. (2)

Discovery

(A)

Scope of discovery

(i)

In general

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 in the possession of the Government that the Government relies upon to justify detention; (II)any reasonably available evidence in the possession of the Government that tends materially to undermine the information presented to support the justification of the Government for detaining the covered individual; 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. (ii)

Reasonably available evidence defined

In this subparagraph, the term reasonably available evidence means— (I)evidence contained in any information reviewed by Government attorneys preparing factual returns for covered individuals; and (II)evidence discovered by Government attorneys while litigating habeas corpus petitions filed by covered individuals. (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 (b)(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 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 shall 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)

Evidence

(A)

Considerations

(i)

In general

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 as required by this subsection. (ii)

Analysis

In considering whether the Government has carried its burden as required by this subsection, the District Court shall not require that each piece of the Government’s evidence bear weight without regard to any other evidence in the case. (B)

Rebuttable presumption of authenticity

Any evidence relied upon by the Government in its declaration shall be subject to a rebuttable presumption that such evidence is authentic. (C)

Evidentiary hearing

(i)

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 District Court may grant an evidentiary hearing only after considering whether such a hearing would enable the covered individual to prove that the application’s factual allegations, if true, would entitle the covered individual to relief. If the record before the District Court refutes the factual allegations in the application, the District Court is not required to hold a hearing. (ii)

Admissibility

The rules concerning the admissibility of evidence in Federal 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. (iii)

Witness production

The District Court may grant a motion for oral testimony relating to an evidentiary hearing pursuant to this paragraph 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 of statements

(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; (ii)the statement was made incident to lawful interrogation conducted by authorized personnel of— (I)a Federal, State, or local law enforcement agency; or (II)a department or agency of the United States; (iii)the statement was made voluntarily and incident to lawful interrogation conducted by authorized personnel of a foreign government, entity, or law enforcement or intelligence agency; or (iv)the statement was voluntarily made. (C)

Determination of voluntariness

In determining whether a statement was voluntarily made, the District Court shall consider the totality of the circumstances, including, as appropriate, the following: (i)The details of the making of the statement, accounting for the circumstances of the conduct of military and intelligence operations during or in relation to hostilities. (ii)The relevant characteristics of the applicant, such as military training, age, and education level. (iii)Any lapse of time, change of location, or change in personnel questioning the applicant between the statement sought to be admitted and any prior questioning of the applicant. (D)

Statements before Combat Status Review Tribunal or Administrative Review Board

There shall be a rebuttable presumption in favor of the voluntariness of statements against interest made 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. (E)

Reliability

There shall be a rebuttable presumption in favor of the reliability of statements against interest made during or as a result of interrogation conducted pursuant to the Army Field Manual, or made before a Combat Status Review Tribunal, Administrative Review Board, or comparable review board. (5)

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 solely to provide assistance during the course of such proceedings; (ii)has been determined to be eligible for access to classified information that is classified at the level Secret or higher, as required, and has signed the appropriate nondisclosure agreement for access to such classified information; 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 by or made known to such attorney 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 such information, including a covered individual. (6)

Video hearings

The District Court shall not require the physical presence of a covered individual for the purpose of any proceeding under this section, including any oral testimony or evidentiary hearing, although the District Court in its discretion may permit a detainee to participate 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 and with the conduct of military and intelligence operations. (e)

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 Detention of Unprivileged Enemy Belligerents 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 considered until the applicant has exhausted the remedies available under chapter 47A of title 10. (B)

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. (C)

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. (D)

Scope of review

Subject to the restrictions under subparagraph (C), 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 Detention of Unprivileged Enemy Belligerents Act by or on behalf of a covered individual who has been designated for transfer or release to another country, shall, upon a representation by the attorney for the Government that good faith efforts are being made to facilitate such transfer or release by the Executive branch, be stayed pending resolution of such transfer or release efforts. (f)

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. (g)

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. (C)

Parole

Neither the Attorney General or the Secretary of Homeland Security may parole into the United States any alien who, as of January 1, 2009, was being detained by the Department of Defense at Guantanamo Bay Naval Base. (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 Department of Homeland Security for the purpose of transferring the individual to the country of citizenship of the individual or to another country. If custody by the Department of Homeland Security is not practicable, or the President or a designee of the President determines that alternative custody pending release is more appropriate, the covered individual may be released into the custody of an alternative department or agency of the Federal Government selected by the President or such designee. (B)

Transfer

An individual in the custody of the Department of Homeland Security or an alternative department or agency 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 the 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. .

4.

Limitation on habeas corpus review for detained aliens awaiting status determination under law of war

Section 2241(e) of title 28, United States Code, is amended by adding at the end the following new paragraph: (3)No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who is awaiting a status determination under the law of war, except in the case of undue delay. .