[Congressional Record Volume 151, Number 150 (Monday, November 14, 2005)]
[Senate]
[Pages S12771-S12772]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 2523. Mr. BINGAMAN proposed an amendment to amendment SA 2515 
proposed by Mr. Graham (for himself, Mr. Kyl, Mr. Chambliss, and Mr. 
Cornyn) to the bill S. 1042, to authorize appropriations for fiscal 
year 2006 for military activities of the Department of Defense, for 
military construction, and for defense activities of the Department of 
Energy, to prescribe personnel strengths for such fiscal year for the 
Armed Forces, and for other purposes; as follows:

       Strike subsection (d) and insert the following:
       (d) Judicial Review of Detention of Enemy Combatants.--
       (1) In general.--Except as provided in paragraph (2), the 
     United States Court of Appeals for the District of Columbia 
     Circuit shall have exclusive jurisdiction to consider an 
     application for writ of habeas corpus filed by or on behalf 
     of an alien outside the United States (as that term is 
     defined in section 101(a)(38) of the Immigration and 
     Naturalization Act (8 U.S.C. 1101(a)(38))--
       (A) who is, at the time a request for review by such court 
     is filed, detained by the Department of Defense at Guantanamo 
     Bay, Cuba; and
       (B) for whom a Combatant Status Review Tribunal has been 
     conducted, pursuant to applicable procedures specific by the 
     Department of Defense.
       (2) Exceptions.--This subsection does not apply to the 
     following:
       (A) An individual charged with an offense before a military 
     commission.
       (B) An individual who is not designated as an enemy 
     combatant following a combatant status review, but who 
     continues to be held by the United States Government.
       (3) Venue.--Review under paragraph (1) shall commence in 
     the United States Court of Appeals for the District of 
     Columbia Circuit.
       (4) Claims reviewable.--The United States Court of Appeals 
     for the District of Columbia Circuit may not, in a review 
     under paragraph (1) with respect to an alien, consider claims 
     based on living conditions, but may only hear claims 
     regarding--
       (A) whether the status determination of the Combatant 
     Status Review Tribunal with regard to such alien was 
     consistent with the procedures and standards specified by the 
     Secretary of Defense for Combatant Status Review Tribunals;
       (B) whether such status determination was supported by 
     sufficient evidence and reached in accordance with due 
     process of law, provided that statements obtained through 
     undue coercion, torture, or cruel or inhuman treatment may 
     not be used as a basis for the determination; and
       (C) the lawfulness of the detention of such alien.
       (5) Termination on release from custody.--The jurisdiction 
     of the United States Court of Appeals for the District of 
     Columbia Circuit with respect to the claims of an alien under 
     this subsection shall cease upon the release of such alien 
     from the custody or control of the United States.
       (6) Effective date.--This subsection shall apply to any 
     application or other action that is pending on or after the 
     date of the enactment of this Act.
                                 ______
                                 
  SA 2524. Mr. GRAHAM (for himself, Mr. Levin, and Mr. Kyl) proposed an 
amendment to amendment SA 2515 proposed by Mr. Graham (for himself, Mr. 
Kyl, Mr. Chambliss, and Mr. Cornyn) to the bill S. 1042, to authorize 
appropriations for fiscal year 2006 for military activities of the 
Department of Defense, for military construction, and for defense 
activities of the Department of Energy, to prescribe personnel 
strengths for such fiscal year for the Armed Forces, and for other 
purposes; as follows:

       In lieu of the matter proposed to be inserted, insert the 
     following:

     SEC. __. REVIEW OF STATUS OF DETAINEES.

       (a) Submittal of Procedures for Status Review of Detainees 
     at Guantanamo Bay, Cuba.--Not later than 180 days after the 
     date of the enactment of this Act, the Secretary of Defense 
     shall submit to the congressional defense committees, and to 
     the Committees on the Judiciary of the Senate and the House 
     of Representatives, a report setting forth the procedures of 
     the Combatant Status Review Tribunals and the noticed 
     Administrative Review Boards in operation at Guantanamo Bay, 
     Cuba, for determining the status of the detainees held at 
     Guantanamo Bay.
       (b) Procedures.--The procedures submitted to Congress 
     pursuant to subsection (a) shall, with respect to proceedings 
     beginning after the date of the submittal of such procedures 
     under that subsection, ensure that--
       (1) in making a determination of status of any detainee 
     under such procedures, a Combatant Status Review Tribunal or 
     Administrative Review Board may not consider statements 
     derived from persons that, as determined by such Tribunal or 
     Board, by the preponderance of the evidence, were obtained 
     with undue coercion; and
       (2) the Designated Civilian Official shall be an officer of 
     the United States Government whose appointment to office was 
     made by the President, by and with the advice and consent of 
     the Senate.
       (c) Report on Modification of Procedures.--The Secretary of 
     Defense shall submit to the committees of Congress referred 
     to in subsection (a) a report on any modification of the 
     procedures submitted under subsection (a) not later than 60 
     days before the date on which such modification goes into 
     effect.
       (d) Judicial Review of Detention of Enemy Combatants.--
       (1) In general.--Section 2241 of title 28, United States 
     Code, is amended by adding at the end the following:
       ``(e) 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 outside the United 
     States (as that term is defined in section 101(a)(38) of the 
     Immigration and Naturalization Act (8 U.S.C. 1101(a)(38)) who 
     is detained by the Department of Defense at Guantanamo Bay, 
     Cuba.''.
       (2) Review of decisions of combatant status review 
     tribunals of propriety of detention.--
       (A) In general.--Subject to subparagraphs (B), (C), and 
     (D), the United States Court of Appeals for the District of 
     Columbia Circuit shall have exclusive jurisdiction to 
     determine the validity of any decision of a Designated 
     Civilian Official described in subsection (b)(2) that an 
     alien is properly detained as an enemy combatant.
       (B) Limitation on claims.--The jurisdiction of the United 
     States Court of Appeals for the District of Columbia Circuit 
     under this paragraph shall be limited to claims brought by or 
     on behalf of an alien--
       (i) who is, at the time a request for review by such court 
     is filed, detained by the Department of Defense at Guantanamo 
     Bay, Cuba; and
       (ii) for whom a Combatant Status Review Tribunal has been 
     conducted, pursuant to applicable procedures specified by the 
     Secretary of Defense.
       (C) Scope of review.--The jurisdiction of the United States 
     Court of Appeals for the District of Columbia Circuit on any 
     claims with respect to an alien under this paragraph shall be 
     limited to the consideration of--
       (i) whether the status determination of the Combatant 
     Status Review Tribunal with regard to such alien applied the 
     correct standards and was consistent with the procedures 
     specified by the Secretary of Defense for Combatant Status 
     Review Tribunals (including the requirement that the 
     conclusion of the Tribunal be supported by a preponderance of 
     the evidence and allowing a rebuttable presumption in favor 
     the Government's evidence); and
       (ii) whether subjecting an alien enemy combatant to such 
     standards and procedures is consistent with the Constitution 
     and laws of the United States.
       (D) Termination on release from custody.--The jurisdiction 
     of the United States Court of Appeals for the District of 
     Columbia Circuit with respect to the claims of an alien under 
     this paragraph shall cease upon the release of such alien 
     from the custody of the Department of Defense.
       (3) Review of final decisions of military commissions.--
       (A) In general.--Subject to subparagraphs (C) and (D), the 
     United States Court of Appeals for the District of Columbia 
     Circuit shall have exclusive jurisdiction to determine the 
     validity of any final decision rendered pursuant to Military 
     Commission Order No. 1, dated August 31, 2005 (or any 
     successor military order).
       (B) Grant of review.--Review under this paragraph--
       (i) with respect to a capital case or a case in which the 
     alien was sentenced to a term of imprisonment of 10 years or 
     more, shall be as of right; or
       (ii) with respect to any other case, shall be at the 
     discretion of the United States Court of Appeals for the 
     District of Columbia Circuit.
       (C) Limitation on appeals.--The jurisdiction of the United 
     States Court of Appeals for the District of Columbia Circuit 
     under this paragraph shall be limited to an appeal brought by 
     or on behalf of an alien--
       (i) who was, at the time of the proceedings pursuant to the 
     military order referred to in subparagraph (A), detained by 
     the Department of Defense at Guantanamo Bay, Cuba; and
       (ii) for whom a final decision has been rendered pursuant 
     to such military order.
       (D) Scope of review.--The jurisdiction of the United States 
     Court of Appeals for the District of Columbia Circuit on an 
     appeal of

[[Page S12772]]

     a final decision with respect to an alien under this 
     paragraph shall be limited to the consideration of--
       (i) whether the final decision applied the correct 
     standards and was consistent with the procedures specified in 
     the military order referred to in subparagraph (A); and
       (ii) whether subjecting an alien enemy combatant to such 
     order is consistent with the Constitution and laws of the 
     United States.
       (e) Effective Date.--
       (1) In general.--Except as provided in paragraph (2), this 
     section shall take effect on the day after the date of the 
     enactment of this Act.
       (2) Review of combatant status tribunal and military 
     commission decisions.--Paragraphs (2) and (3) of subsection 
     (d) shall apply with respect to any claim whose review is 
     governed by one of such paragraphs and that is pending on or 
     after the date of the enactment of this Act.

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