[Congressional Record Volume 153, Number 120 (Wednesday, July 25, 2007)]
[Senate]
[Pages S9922-S9926]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BIDEN:
  S. 1876. A bill to prohibit extraterritorial detention and rendition, 
except under limited circumstances, to modify the definition of 
``unlawful enemy combatant'' for purposes of military commissions, to 
extend statutory habeas corpus to detainees, and for other purposes; to 
the Committee on the Judiciary.
  Mr. BIDEN. One of the defining challenges of our age is to 
effectively combat international terrorism while maintaining our 
national values and our commitment to the rule of law, and respecting 
individual rights and civil liberties. To fight terrorist organizations 
whose tactics include blending into our cities and communities and 
attacking civilian populations engaged in the activities of everyday 
life, we must have robust and agile intelligence capabilities. 
Rendition, detaining a terrorist operative in one foreign country and 
transfering him to the United States or to another foreign country to 
face justice, has proved to be one effective means of taking terrorists 
off the streets and collecting valuable intelligence.
  Despite its effectiveness, however, the U.S. Government's use of 
rendition has been controversial. Foreign governments have criticized 
the practice as ungoverned by law and on the basis of its alleged use 
to transfer suspects to countries that torture or mistreat them or to 
secret, extraterritorial prisons. The toll the rendition program, as 
currently practiced, has had on relationships with some of our closest 
foreign partners is evident from their responses.
  Italy has indicted 26 Americans for their alleged role in a 
rendition. Germany has issued arrest warrants for an additional 13 U.S. 
intelligence officers. A Canadian Government commission has censured 
the United States for rendering a Canadian/Syrian dual citizen to 
Syria. The Council of Europe and the European Union have each issued 
reports critical of the U.S. Government's rendition program and 
European countries' involvement or complicity in it. Sweden and 
Switzerland have each initiated investigations as well. Today, the 
United Kingdom issued a report predicting that the U.S. Government's 
rendition program would have ``serious implications'' for the 
intelligence relation between the U.S. and U.K., one of our most 
important foreign partners. Rendition, as currently practiced, is 
undermining our moral credibility and standing abroad and weakening the 
coalitions with foreign governments that we need to effectively combat 
international terrorism.
  The controversial aspects of the U.S. Government's use of rendition 
have also not escaped the notice of the propagandists and recruiters 
who fuel and sustain international terrorist organizations with a 
constant stream of new recruits. Allegations of lawlessness and 
mistreatment by the U.S. make their job easier, adding a refrain to 
their recruitment pitch and increasing the receptivity of their target 
audience.
  Our counterterrorism authorities should not only thwart attacks, take 
dangerous terrorists off the streets, and bring them to justice; these 
authorities should also strengthen international coalitions, draw 
Muslim populations around the world closer to us, and deprive 
terrorists of a recruitment narrative. In our long term effort to stem 
the tide of international terrorism, our commitments to the rule of law 
and to individual rights and civil liberties are among our most 
formidable weapons. They are what unite foreign governments behind us 
in effective counterterrorism coalitions. They

[[Page S9923]]

are what unite public opinion in support of our counterterrorism 
efforts and in condemnation of the terrorists and their tactics. They 
are what prevent the recruitment of the next generation of 
international terrorists.
  This bill maintains rendition as a robust and agile tool in our fight 
against international terrorism, but it brings that tool within the 
rule of law, provides additional safeguards against error, and 
prohibits rendering individuals to countries that will torture or 
mistreat them or to secret, extra-territorial prisons.
  The bill establishes a classified application and order process, 
presided over by the FISA court that: 1. ensures that each rendition is 
preceded by a searching inquiry into the identity of the individual to 
be rendered and his role in international terrorism and 2. prohibits 
rendition to countries that torture or mistreat detainees or to secret, 
extraterritorial prisons beyond the reach of law. It ensures that 
citizens of, and individuals lawfully admitted to, the U.S. receive the 
due process and individual rights guaranteed by the Constitution. It 
ensures that a terrorist suspect detained by the U.S. has the 
opportunity, through a writ of habeas corpus, to argue in a court of 
law that he is being held in error.
  This bill also closes a hole intentionally left open by the 
President's recent Executive Order on the treatment of detainees. The 
President's order is notably silent on some of the more controversial 
techniques the CIA has allegedly used in the past, such as 
waterboarding, extreme sleep deprivation, extreme sensory deprivation, 
and extremes of heat and cold. When we countenance this treatment of 
detainees, we diminish our ability to argue that the same techniques 
should not be used against our own troops.
  We cannot continue to equivocate and dissemble on this matter. We 
need to send a clear message that torture, inhumane, and degrading 
treatment of detainees is unacceptable and is not permitted by U.S. 
law. Period. Therefore, my bill prohibits all officers and agents of 
the United States from using techniques of interrogation not authorized 
by and listed in the U.S. Army Field Manual on Intelligence 
Interrogation.
  As I said at the outset, this bill grapples with one of the defining 
issues of our age, how to effectively combat terrorism without 
sacrificing our national values and abandoning the rule of law. If we 
continue to pursue a rendition program ungoverned by law, without 
sufficient safeguards and oversight, we will perpetuate a short term 
solution that exacerbates the long term problem. We will take 
individual terrorists off the streets at the expense of the foreign 
coalitions that are essential to our efforts to combat international 
terrorism, at the expense of facilitating the recruitment of a new 
generation of terrorists who are just as dangerous and far more 
numerous.
  This is not a trade-off we have to make. We can have a robust and 
agile rendition capability governed by the rule of law and subject to 
sufficient safeguards and oversight. That is what the National Security 
with Justice Act creates. I invite my colleagues on both sides of the 
aisle and in the other branches of Government to work with me to refine 
this legal framework so that we not only take today's terrorists off 
the streets, we strengthen our standing and credibility among foreign 
governments and the global community, and we prevent tomorrow's 
terrorists from being recruited.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1876

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``National Security with 
     Justice Act of 2007''.

     SEC. 2. DEFINITIONS.

       In this Act--
       (1) the term ``aggrieved person''--
       (A) means any individual subject by an officer or agent of 
     the United States either to extraterritorial detention or 
     rendition, except as authorized in this Act; and
       (B) does not include any individual who is an international 
     terrorist;
       (2) the term ``element of the intelligence community'' 
     means an element of the intelligence community specified in 
     or designated under section 3(4) of the National Security Act 
     of 1947 (50 U.S.C. 401a(4));
       (3) the term ``extraterritorial detention'' means detention 
     of any individual by an officer or agent of the United States 
     outside the territorial jurisdiction of the United States;
       (4) the term ``Foreign Intelligence Surveillance Court'' 
     means the court established under section 103(a) of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803(a));
       (5) the term ``Geneva Conventions'' means--
       (A) the Convention for the Amelioration of the Condition of 
     the Wounded and Sick in Armed Forces in the Field, done at 
     Geneva August 12, 1949 (6 UST 3114);
       (B) the Convention for the Amelioration of the Condition of 
     the Wounded, Sick, and Shipwrecked Members of the Armed 
     Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
       (C) the Convention Relative to the Treatment of Prisoners 
     of War, done at Geneva August 12, 1949 (6 UST 3316); and
       (D) the Convention Relative to the Protection of Civilian 
     Persons in Time of War, done at Geneva August 12, 1949 (6 UST 
     3516);
       (6) the term ``international terrorist'' means--
       (A) any person, other than a United States person, who 
     engages in international terrorism or activities in 
     preparation therefor; and
       (B) any person who knowingly aids or abets any person in 
     the conduct of activities described in subparagraph (A) or 
     knowingly conspires with any person to engage in activities 
     described in subparagraph (A);
       (7) the terms ``international terrorism'' and ``United 
     States person'' have the meanings given those terms in 
     section 101 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1801);
       (8) the term ``officer or agent of the United States'' 
     includes any officer, employee, agent, contractor, or 
     subcontractor acting for or on behalf of the United States; 
     and
       (9) the terms ``render'' and ``rendition'', relating to an 
     individual, mean that an officer or agent of the United 
     States transfers that individual from the legal jurisdiction 
     of the United States or a foreign country to a different 
     legal jurisdiction (including the legal jurisdiction of the 
     United States or a foreign country) without authorization by 
     treaty or by the courts of either such jurisdiction, except 
     under an order of rendition issued under section 104.

     SEC. 3. TABLE OF CONTENTS.

       The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Definitions.
Sec. 3. Table of contents.

           TITLE I--EXTRATERRITORIAL DETENTION AND RENDITION

Sec. 101. Prohibition on extraterritorial detention.
Sec. 102. Prohibition on rendition.
Sec. 103. Application for an order of rendition.
Sec. 104. Issuance of an order of rendition.
Sec. 105. Authorizations and orders for emergency detention.
Sec. 106. Uniform Standards for the Interrogation of Individuals 
              Detained by the Government of the United States.
Sec. 107. Protection of United States Government Personnel Engaged in 
              an Interrogation.
Sec. 108. Monitoring and reporting regarding the treatment, conditions 
              of confinement, and status of legal proceedings of 
              individuals rendered to foreign governments.
Sec. 109. Report to Congress.
Sec. 110. Civil liability.
Sec. 111. Additional resources for foreign intelligence surveillance 
              court.
Sec. 112. Rule of construction.
Sec. 113. Authorization of appropriations.

                       TITLE II--ENEMY COMBATANTS

Sec. 201. Modification of definition of ``unlawful enemy combatant'' 
              for purposes of military commissions.

                        TITLE III--HABEAS CORPUS

Sec. 301. Extending statutory habeas corpus to detainees.

           TITLE I--EXTRATERRITORIAL DETENTION AND RENDITION

     SEC. 101. PROHIBITION ON EXTRATERRITORIAL DETENTION.

       (a) In General.--Except as provided in subsection (b), no 
     officer or agent of the United States shall engage in the 
     extraterritorial detention of any individual.
       (b) Exceptions.--This section shall not apply to--
       (1) an individual detained and timely transferred to a 
     foreign legal jurisdiction or the legal jurisdiction of the 
     United States under an order of rendition issued under 
     section 104 or an emergency authorization under section 105;
       (2) an individual--
       (A) detained by the Armed Forces of the United States in 
     accordance with United States Army Regulation 190-8 (1997), 
     or any successor regulation certified by the Secretary of 
     Defense; and
       (B) detained by the Armed Forces of the United States--
       (i) under circumstances governed by, and in accordance 
     with, the Geneva Conventions;
       (ii) in accordance with United Nations Security Council 
     Resolution 1546 (2004) and

[[Page S9924]]

     United Nations Security Council Resolution 1723 (2004);
       (iii) at the Bagram, Afghanistan detention facility; or
       (iv) at the Guantanamo Bay, Cuba detention center on the 
     date of enactment of this Act;
       (3) an individual detained by the Armed Forces of the 
     United States under circumstances governed by, and in 
     accordance with chapter 47 of title 10, United States Code 
     (the Uniform Code of Military Justice);
       (4) an individual detained by the Armed Forces of the 
     United States subject to an agreement with a foreign 
     government and in accordance with the relevant laws of that 
     foreign country when the Armed Forces of the United States 
     are providing assistance to that foreign government; or
       (5) an individual detained pursuant to a peacekeeping 
     operation authorized by the United Nations Security Council 
     acting under Chapter VII of the Charter of the United 
     Nations.

     SEC. 102. PROHIBITION ON RENDITION.

       (a) In General.--Except as provided in subsection (b), no 
     officer or agent of the United States shall render or 
     participate in the rendition of any individual.
       (b) Exceptions.--This section shall not apply to--
       (1) an individual rendered under an order of rendition 
     issued under section 104;
       (2) an individual detained and transferred by the Armed 
     Forces of the United States under circumstances governed by, 
     and in accordance with, the Geneva Conventions;
       (3) an individual--
       (A) for whom an attorney for the United States or for any 
     State has filed a criminal indictment, criminal information, 
     or any similar criminal charging document in any district 
     court of the United States or criminal court of any State; 
     and
       (B) who is timely transferred to the United States for 
     trial;
       (4) an individual--
       (A) who was convicted of a crime in any State or Federal 
     court;
       (B) who--
       (i) escaped from custody prior to the expiration of the 
     sentence imposed; or
       (ii) violated the terms of parole, probation, or supervised 
     release; and
       (C) who is promptly returned to the United States--
       (i) to complete the term of imprisonment; or
       (ii) for trial for escaping imprisonment or violating the 
     terms of parole or supervised release; or
       (5) an individual detained by the United States at the 
     Guantanamo Bay, Cuba detention center on the date of 
     enactment of this Act who is transferred to a foreign legal 
     jurisdiction.

     SEC. 103. APPLICATION FOR AN ORDER OF RENDITION.

       (a) In General.--A Federal officer or agent may make an 
     application for an order of rendition in writing, upon oath 
     or affirmation, to a judge of the Foreign Intelligence 
     Surveillance Court, if the Attorney General of the United 
     States or the Deputy Attorney General of the United States 
     determines that the requirements under this title for such an 
     application have been satisfied.
       (b) Contents.--Each application under subsection (a) shall 
     include--
       (1) the identity of the Federal officer or agent making the 
     application;
       (2) a certification that the Attorney General of the United 
     States or the Deputy Attorney General of the United States 
     has approved the application;
       (3) the identity of the specific individual to be rendered;
       (4) a statement of the facts and circumstances relied upon 
     by the applicant to justify the good faith belief of the 
     applicant that--
       (A) the individual to be rendered is an international 
     terrorist;
       (B) the country to which the individual is to be rendered 
     will not subject the individual to torture or cruel, inhuman, 
     or degrading treatment, within the meaning of the United 
     Nations Convention Against Torture and Other Cruel, Inhuman 
     or Degrading Treatment or Punishment, done at New York on 
     December 10, 1984;
       (C) the country to which the individual is to be rendered 
     will timely initiate legal proceedings against that 
     individual that comport with fundamental notions of due 
     process; and
       (D) rendition of that individual is important to the 
     national security of the United States; and
       (5) a full and complete statement regarding--
       (A) whether ordinary legal procedures for the transfer of 
     custody of the individual to be rendered have been tried and 
     failed; or
       (B) the facts and circumstances that justify the good faith 
     belief of the applicant that ordinary legal procedures 
     reasonably appear to be--
       (i) unlikely to succeed if tried; or
       (ii) unlikely to adequately protect intelligence sources or 
     methods.
       (c) Technical and Conforming Amendment.--Section 103 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803) is amended by adding at the end the following:
       ``(g) The court established under subsection (a) may hear 
     an application for and issue, and the court established under 
     subsection (b) may review the issuing or denial of, an order 
     of rendition under section 104 of the National Security with 
     Justice Act of 2007.''.

     SEC. 104. ISSUANCE OF AN ORDER OF RENDITION.

       (a) In General.--Upon filing of an application under 
     section 103, a judge of the Foreign Intelligence Surveillance 
     Court shall enter an ex parte order as requested or as 
     modified approving the rendition, if the judge finds that--
       (1) the Attorney General of the United States or the Deputy 
     Attorney General of the United States has approved the 
     application for rendition;
       (2) the application has been made by a Federal officer or 
     agent;
       (3) the application establishes probable cause to believe 
     that the individual to be rendered is an international 
     terrorist;
       (4) ordinary legal procedures for transfer of custody of 
     the individual have been tried and failed or reasonably 
     appear to be unlikely to succeed for any of the reasons 
     described in section 103(b)(5)(B);
       (5) the application, and such other information as is 
     available to the judge, including reports of the Department 
     of State and the United Nations Committee Against Torture and 
     information concerning the specific characteristics and 
     circumstances of the individual, establish a substantial 
     likelihood that the country to which the individual is to be 
     rendered will not subject the individual to torture or to 
     cruel, inhuman, or degrading treatment, within the meaning of 
     the United Nations Convention Against Torture and Other 
     Cruel, Inhuman or Degrading Treatment or Punishment, done at 
     New York on December 10, 1984;
       (6) the application, and such other information as is 
     available to the judge, establish reason to believe that the 
     country to which the individual is to be rendered will timely 
     initiate legal proceedings against that individual that 
     comport with fundamental notions of due process; and
       (7) the application establishes reason to believe that 
     rendition of the individual to be rendered is important to 
     the national security of the United States.
       (b) Appeal.--The Government may appeal the denial of an 
     application for an order under subsection (a) to the court of 
     review established under section 103(b) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(b)), 
     and further proceedings with respect to that application 
     shall be conducted in a manner consistent with that section 
     103(b).

     SEC. 105. AUTHORIZATIONS AND ORDERS FOR EMERGENCY DETENTION.

       (a) In General.--Notwithstanding any other provision of 
     this title, and subject to subsection (b), the President or 
     the Director of National Intelligence may authorize the Armed 
     Forces of the United States or an element of the intelligence 
     community, acting within the scope of existing authority, to 
     detain an international terrorist in a foreign jurisdiction 
     if the President or the Director of National Intelligence 
     reasonably determines that--
       (1) failure to detain that individual will result in a risk 
     of imminent death or imminent serious bodily injury to any 
     individual or imminent damage to or destruction of any United 
     States facility; and
       (2) the factual basis for issuance of an order of rendition 
     under paragraphs (3) and (7) of section 104(a) exists.
       (b) Notice and Application.--The President or the Director 
     of National Intelligence may authorize an individual be 
     detained under subsection (a) if--
       (1) the President or the Director of National Intelligence, 
     or the designee of the President or the Director of National 
     Intelligence, at the time of such authorization, immediately 
     notifies the Foreign Intelligence Surveillance Court that the 
     President or the Director of National Intelligence has 
     determined to authorize that an individual be detained under 
     subsection (a); and
       (2) an application in accordance with this title is made to 
     the Foreign Intelligence Surveillance Court as soon as 
     practicable, but not more than 72 hours after the President 
     or the Director of National Intelligence authorizes that 
     individual to be detained.
       (c) Emergency Rendition Prohibited.--The President or the 
     Director of National Intelligence may not authorize the 
     rendition to a foreign jurisdiction of, and the Armed Forces 
     of the United States or an element of the intelligence 
     community may not render to a foreign jurisdiction, an 
     individual detained under this section, unless an order under 
     section 104 authorizing the rendition of that individual has 
     been obtained.
       (d) Nondelegation.--Except as provided in this section, the 
     authority and duties of the President or the Director of 
     National Intelligence under this section may not be 
     delegated.

     SEC. 106. UNIFORM STANDARDS FOR THE INTERROGATION OF 
                   INDIVIDUALS DETAINED BY THE GOVERNMENT OF THE 
                   UNITED STATES.

       (a) In General.--No individual in the custody or under the 
     effective control of an officer or agent of the United States 
     or detained in a facility operated by or on behalf of the 
     Department of Defense, the Central Intelligence Agency, or 
     any other agency of the Government of the United States shall 
     be subject to any treatment or technique of interrogation not 
     authorized by and listed in United States Army Field Manual 
     2-22.3, entitled ``Human Intelligence Collector Operations''.
       (b) Applicability.--Subsection (a) shall not apply with 
     respect to any individual in

[[Page S9925]]

     the custody or under the effective control of the Government 
     of the United States based on--
       (1) an arrest or conviction for violating Federal criminal 
     law; or
       (2) an alleged or adjudicated violation of the immigration 
     laws of the United States.
       (c) Construction.--Nothing in this section may be construed 
     to diminish the rights under the Constitution of the United 
     States of any individual in the custody or within the 
     physical jurisdiction of the Government of the United States.

     SEC. 107. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL 
                   ENGAGED IN AN INTERROGATION.

       (a) Protection of United States Government Personnel.--In a 
     civil action or criminal prosecution against an officer or 
     agent of the United States relating to an interrogation, it 
     shall be a defense that such officer or agent of the United 
     States complied with section 106.
       (b) Applicability.--Subsection (a) shall not apply with 
     respect to any civil action or criminal prosecution relating 
     to the interrogation of an individual in the custody or under 
     the effective control of the Government of the United States 
     based on--
       (1) an arrest or conviction for violating Federal criminal 
     law; or
       (2) an alleged or adjudicated violation of the immigration 
     laws of the United States.
       (c) Provision of Counsel.--In any civil action or criminal 
     prosecution arising from the alleged use of an authorized 
     interrogation practice by an officer or agent of the United 
     States, the Government of the United States may provide or 
     employ counsel, and pay counsel fees, court costs, bail, and 
     other expenses incident to representation.
       (d) Construction.--Nothing in this section may be 
     construed--
       (1) to limit or extinguish any defense or protection from 
     suit, civil or criminal liability, or damages otherwise 
     available to a person or entity; or
       (2) to provide immunity from prosecution for any criminal 
     offense by the proper authorities.

     SEC. 108. MONITORING AND REPORTING REGARDING THE TREATMENT, 
                   CONDITIONS OF CONFINEMENT, AND STATUS OF LEGAL 
                   PROCEEDINGS OF INDIVIDUALS RENDERED TO FOREIGN 
                   GOVERNMENTS.

       (a) In General.--The Secretary of State shall--
       (1) regularly monitor the treatment of, the conditions of 
     confinement of, and the progress of legal proceedings against 
     an individual rendered to a foreign legal jurisdiction under 
     section 104; and
       (2) not later than 6 months after the date of enactment of 
     this Act, and every 6 months thereafter, submit to the Select 
     Committee on Intelligence of the Senate and the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives a report detailing the treatment of, the 
     conditions of confinement of, and the progress of legal 
     proceedings against any individual rendered to a foreign 
     legal jurisdiction under section 104.
       (b) Applicability.--The Secretary of State shall include in 
     the reports required under subsection (a)(2) information 
     relating to the treatment of, the conditions of confinement 
     of, and the progress of legal proceedings against an 
     individual rendered to a foreign legal jurisdiction under 
     section 104 during the period beginning on the date that 
     individual was rendered to a foreign legal jurisdiction under 
     section 104 and ending on the date that individual is 
     released from custody by that foreign legal jurisdiction.

     SEC. 109. REPORT TO CONGRESS.

       The Attorney General shall--
       (1) submit to the Select Committee on Intelligence of the 
     Senate and the Permanent Select Committee on Intelligence of 
     the House of Representatives an annual report that contains--
       (A) the total number of applications made for an order of 
     rendition under section 104;
       (B) the total number of such orders granted, modified, or 
     denied;
       (C) the total number of emergency authorizations issued 
     under section 105; and
       (D) such other information as requested by the Select 
     Committee on Intelligence of the Senate or the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives; and
       (2) make available to the Select Committee on Intelligence 
     of the Senate and the Permanent Select Committee on 
     Intelligence of the House of Representatives a copy of each 
     application made and order issued under this title.

     SEC. 110. CIVIL LIABILITY.

       (a) In General.--An aggrieved person shall have a cause of 
     action against the head of the department or agency that 
     subjected that aggrieved person to extraterritorial detention 
     or a rendition in violation of this title and shall be 
     entitled to recover--
       (1) actual damages, but not less than liquidated damages of 
     $1,000 for each day of the violation;
       (2) punitive damages; and
       (3) reasonable attorney's fees.
       (b) Jurisdiction.--The United States District Court for the 
     District of Columbia shall have original jurisdiction over 
     any claim under this section.

     SEC. 111. ADDITIONAL RESOURCES FOR FOREIGN INTELLIGENCE 
                   SURVEILLANCE COURT.

       (a) Authority for Additional Judges.--Section 103(a) of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803(a)) is amended--
       (1) by inserting ``(1)'' after ``(a)'';
       (2) in paragraph (1), as so designated, by inserting ``at 
     least'' before ``seven of the United States judicial 
     circuits'';
       (3) by striking ``If any judge so designated'' and 
     inserting the following:
       ``(3) If any judge so designated''; and
       (4) by inserting after paragraph (1), as so designated, the 
     following:
       ``(2) In addition to the judges designated under paragraph 
     (1), the Chief Justice of the United States may designate as 
     judges of the court established by paragraph (1) such judges 
     appointed under article III of the Constitution of the United 
     States as the Chief Justice determines appropriate in order 
     to provide for the prompt and timely consideration of 
     applications under sections 103 of the National Security with 
     Justice Act of 2007 for orders of rendition under section 104 
     of that Act. Any judge designated under this paragraph shall 
     be designated publicly.''.
       (b) Additional Legal and Other Personnel for Foreign 
     Intelligence Surveillance Court.--There is authorized for the 
     Foreign Intelligence Surveillance Court such additional staff 
     personnel as may be necessary to facilitate the prompt 
     processing and consideration by that Court of applications 
     under section 103 for orders of rendition under section 104 
     approving rendition of an international terrorist. The 
     personnel authorized by this section are in addition to any 
     other personnel authorized by law.

     SEC. 112. RULE OF CONSTRUCTION.

       Nothing in this title may be construed as altering or 
     adding to existing authorities for the extraterritorial 
     detention or rendition of any individual.

     SEC. 113. AUTHORIZATION OF APPROPRIATIONS.

       There is authorized to be appropriated such sums as may be 
     necessary to carry out this title and the amendments made by 
     this title.

                       TITLE II--ENEMY COMBATANTS

     SEC. 201. MODIFICATION OF DEFINITION OF ``UNLAWFUL ENEMY 
                   COMBATANT'' FOR PURPOSES OF MILITARY 
                   COMMISSIONS.

       Section 948a(1)(A) of title 10, United States Code, is 
     amended--
       (1) in the matter preceding clause (i), by striking 
     ``means''; and
       (2) by striking clauses (i) and (ii) and inserting the 
     following:
       ``(i) means a person who is not a lawful enemy combatant 
     and who--
       ``(I) has engaged in hostilities against the United States; 
     or
       ``(II) has purposefully and materially supported 
     hostilities against the United States (other than hostilities 
     engaged in as a lawful enemy combatant); and
       ``(ii) does not include any person who is--
       ``(I) a citizen of the United States or legally admitted to 
     the United States; and
       ``(II) taken into custody in the United States.''.

                        TITLE III--HABEAS CORPUS

     SEC. 301. EXTENDING STATUTORY HABEAS CORPUS TO DETAINEES.

       (a) In General.--Section 2241 of title 28, United States 
     Code, is amended by striking subsection (e) and inserting the 
     following:
       ``(e)(1) The United States District Court for the District 
     of Columbia shall have jurisdiction to hear or consider an 
     application for a writ of habeas corpus filed by or on behalf 
     of any person detained by the United States who has been--
       ``(A) determined by the United States to have been properly 
     detained as an enemy combatant; or
       ``(B) detained by the United States for more than 90 days 
     without such a determination.
       ``(2) The United States District Court for the District of 
     Columbia shall have jurisdiction to hear or consider an 
     application for a writ of habeas corpus filed by or on behalf 
     of any person detained by the United States who has been 
     tried by military commission established under chapter 47A of 
     title 10, United States Code, and has exhausted the appellate 
     procedure under subchapter VI of that chapter.''.
       (b) Technical and Conforming Amendments.--
       (1) In general.--Subchapter VI of chapter 47A of title 10, 
     United States Code, is amended--
       (A) by striking section 950g;
       (B) in section 950h--
       (i) in subsection (a), by adding at the end the following: 
     ``Appointment of appellate counsel under this subsection 
     shall be for purposes of this chapter only, and not for any 
     proceedings relating to an application for a writ of habeas 
     corpus relating to any matter tried by a military 
     commission.''; and
       (ii) in subsection (c), by striking ``, the United States 
     Court of Appeals for the District of Columbia, and the 
     Supreme Court,'';
       (C) in section 950j--
       (i) by striking ``(a) Finality.--''; and
       (ii) by striking subsection (b); and
       (D) in the table of sections at the beginning of that 
     subchapter, by striking the item relating to section 950g.
       (2) Detainee treatment acts.--
       (A) In general.--Section 1005(e) of the Detainee Treatment 
     Act of 2005 (Public Law 109-148; 119 Stat. 2742; 10 U.S.C. 
     801 note) is amended--
       (i) in subsection (e)--

       (I) by striking paragraph (2); and
       (II) by redesignating paragraphs (3) and (4) as paragraphs 
     (2) and (3), respectively; and

       (ii) in subsection (h)(2)--

       (I) by striking ``Paragraphs (2) and (3)'' and inserting 
     ``Paragraph (2)''; and

[[Page S9926]]

       (II) by striking ``one of such paragraphs'' and inserting 
     ``that paragraph''.

       (B) Other amendments.--Section 1405 of the Detainee 
     Treatment Act of 2005 (Public Law 109-163; 119 Stat. 3475; 10 
     U.S.C. 801 note) is amended--
       (i) in subsection (e)--

       (I) by striking paragraph (2); and
       (II) by redesignating paragraphs (3) and (4) as paragraphs 
     (2) and (3), respectively; and

       (ii) in subsection (h)(2)--

       (I) by striking ``Paragraphs (2) and (3)'' and inserting 
     ``Paragraph (2)''; and
       (II) by striking ``one of such paragraphs'' and inserting 
     ``that paragraph''.

       (c) Rule of Construction.--Notwithstanding subsection (a), 
     no court, justice, or judge shall have jurisdiction to 
     consider an action described in subparagraph (a) brought by 
     an alien who is in the custody of the United States, in a 
     zone of active hostility involving the United States Armed 
     Forces, and where the United States is implementing United 
     States Army Reg 190-8 (1997) or any successor, as certified 
     by the Secretary of Defense.
                                 ______