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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3728 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 3728

To make certain improvements in the laws applicable to the detention of 
   individuals at United States detainment facilities, and for other 
                               purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                            October 6, 2009

   Mr. Hastings of Florida introduced the following bill; which was 
  referred to the Committee on the Judiciary, and in addition to the 
    Committees on Armed Services and Select Intelligence (Permanent 
Select), for a period to be subsequently determined by the Speaker, in 
   each case for consideration of such provisions as fall within the 
                jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL

 
To make certain improvements in the laws applicable to the detention of 
   individuals at United States detainment facilities, and for other 
                               purposes.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Detainment Reform 
Act of 2009''.
    (b) Table of Contents.--The table of contents is as follows:

Sec. 1. Short title; table of contents.
      TITLE I--POLICY OF THE UNITED STATES GOVERNMENT AND FINDINGS

Sec. 101. Statement of policy.
Sec. 102. Findings.
Sec. 103. Definitions.
          TITLE II--DETENTION CRITERIA; DEFINITION OF DETAINEE

Sec. 201. Findings.
Sec. 202. Detention criteria and procedures.
Sec. 203. Detention proceedings.
   TITLE III--TRANSPARENCY AND ACCOUNTABILITY OF AMERICAN DETENTION 
                               FACILITIES

Sec. 301. Notification and access of International Committee of the Red 
                            Cross with respect to detainees at American 
                            detention facilities.
Sec. 302. Report by the Department of Defense.
           TITLE IV--HABEAS-EXCEPTION TREATMENT OF DETAINEES

Sec. 401. Findings.
Sec. 402. Habeas-exception treatment of detainees.
Sec. 403. Sense of Congress.
Sec. 404. Detention.
Sec. 405. Reporting.
Sec. 406. Rules of construction.
Sec. 407. Sunset.

      TITLE I--POLICY OF THE UNITED STATES GOVERNMENT AND FINDINGS

SEC. 101. STATEMENT OF POLICY.

    It shall be the policy of the United States to--
            (1) vigorously implement a sustained national strategy to 
        combat the short- and long-term threat to national security 
        posed by terrorism and terrorist organizations;
            (2) arrest, detain, and prosecute to the full extent of the 
        law individuals who are involved in or are providing material 
        support for terrorist activities, and use all appropriate means 
        to obtain from individuals lawfully in United States custody 
        timely, accurate, and actionable intelligence to protect the 
        national security interests of the United States;
            (3) provide personnel working in support of the Federal 
        Government and involved in the arrest, detention, 
        interrogation, and prosecution of terrorist suspects with 
        training to uphold principles set forth in the Constitution, 
        Federal law, international human rights law, and the law of 
        armed conflict;
            (4) prohibit personnel from applying forms of torture, 
        cruel and inhuman or degrading treatment or punishment during 
        arrest, detention, interrogation, and prosecution of terrorist 
        suspects;
            (5) abide by the rule of law and due process with 
        accountability and transparency including International 
        Committee of the Red Cross (ICRC) access to detainees being 
        held in American detention facilities;
            (6) research and develop the most effective practices for 
        arrest, detention, interrogation, and prosecution of terrorist 
        suspects which are consistent with the United States strategic 
        goals of weakening terrorist organizations and their 
        recruitment capabilities and strengthening the international 
        leadership of the United States by cooperating with, and 
        incorporating insight from the experiences of, allied nations 
        in combating terrorism and terrorist organizations, in addition 
        to the United States national experience; and
            (7) regularly monitor policies related to the arrest, 
        detention, interrogation, and prosecution of terrorist suspects 
        to ensure that the policy objectives in paragraphs (1) through 
        (6) are being met.

SEC. 102. FINDINGS.

    Congress makes the following findings:
            (1) Since 2002, terrorists have been captured by the United 
        States and their allies and detained in facilities at United 
        States Naval Station, Guantanamo Bay (hereinafter in this Act 
        referred to as ``GTMO''), Cuba.
            (2) The detainee complex at GTMO can safely hold 
        individuals who pose a high security risk to the United States. 
        GTMO provides the maximum security required to prevent escape 
        and multiple levels of confinement opportunities based on 
        compliance of the detainee.
            (3) Intelligence information obtained from questioning 
        detainees currently held at GTMO includes--
                    (A) the organizational structure of Al Qaeda and 
                other terrorist groups;
                    (B) the extent of the presence of terrorist 
                networks in Europe, the United States, the Middle East, 
                and possibly other areas;
                    (C) Al Qaeda's pursuit of weapons of mass 
                destruction;
                    (D) methods of recruitment and locations of 
                recruitment centers;
                    (E) terrorist skill sets, including general and 
                specialized operative training; and
                    (F) how legitimate financial activities are used to 
                hide terrorist operations.
            (4) Since 2002, the United States has transferred the 
        substantial majority of detainees at GTMO to other countries 
        including Albania, Algeria, Bermuda, Bosnia and Herzegovina, 
        Chad, Denmark, Egypt, France, Iran, Iraq, Ireland, Jordan, 
        Kuwait, Kazakhstan, Libya, Maldives, Mauritania, Morocco, 
        Pakistan, Portugal, Qatar, Russia, Saudi Arabia, Somaliland, 
        Spain, Sweden, Sudan, Tajikistan, Tunisia, Turkey, Uganda, 
        United Arab Emirates, the United Kingdom, and Yemen.
            (5) There are a substantial number of detainees from over 
        30 countries remaining at GTMO.
            (6) These detainees allegedly include terrorist trainers, 
        terrorist financiers, bombmakers, Osama bin Laden's bodyguards, 
        recruiters, and facilitators. Detainees remaining at GTMO fall 
        into three categories:
                    (A) Detainees who have been placed in preventative 
                detention to stop them from returning to the 
                battlefield.
                    (B) Detainees who have violated American criminal 
                laws and, besides being subject to preventative 
                detention, have been brought or are expected to be 
                brought before a military or other tribunal to face 
                criminal charges, including for alleged violations of 
                the laws of war.
                    (C) Detainees who have been cleared for transfer or 
                release to a foreign country, either because--
                            (i) they are not believed to have been 
                        engaged in hostilities, or
                            (ii) although they were found to have been 
                        enemy belligerents, they are no longer 
                        considered a threat to United States security.
                Such detainees continue to be held at GTMO until their 
                transfer can be effectuated.
            (7) The United States is still engaged in armed conflict 
        with terrorist organizations, and will likely continue to 
        capture terrorists or other hostile actors who will need to be 
        detained.
            (8) If the detention facility at GTMO is closed, some 
        United States domestic or overseas detention facilities will 
        house the detainees while they await disposition.
            (9) In addition to the facilities at GTMO, the American 
        military currently detains approximately 600 individuals at the 
        military detention facility at Bagram Air Base in Afghanistan.
            (10) Though the number of detainees at GTMO is currently 
        decreasing, the number of detainees at Bagram is increasing.
            (11) Detainees at Bagram currently do not have access to 
        lawyers, have no right to hear the allegations against them, 
        and only receive rudimentary reviews of their status as ``enemy 
        combatants''. Many detainees there have been held for years 
        without charge or access to legal representation.
            (12) Recent guidelines proposed by the Department of 
        Defense assign each detainee a United States military official 
        advocate on the detainee's behalf. These officials, however, 
        are not attorneys and the proposed proceedings do not 
        adequately remedy detention procedure problems nor do they 
        ensure transparency and accountability in the review process.
            (13) At least one United States District Court, in Maqaleh 
        v. Gates, has ruled that some detainees at Bagram are entitled 
        to some form of Constitutional protection.

SEC. 103. DEFINITIONS.

    In this Act--
            (1) the terms ``agent of a foreign power'', ``foreign 
        power'', and ``United States person'' have the meanings given 
        such terms in section 101 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801);
            (2) the term ``covered individual'' means an individual who 
        is not a United States person;
            (3) the term ``District Court'' means the United States 
        District Court for the District of Columbia; and
            (4) 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 
                3217);
                    (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).

          TITLE II--DETENTION CRITERIA; DEFINITION OF DETAINEE

SEC. 201. FINDINGS.

    Congress makes the following findings:
            (1) The Supreme Court has stated that, at a minimum, Common 
        Article 3 applies to the conflict with Al Qaeda and its 
        affiliates.
            (2) The United Nations Commission on Human Rights has said 
        ``the indefinite detention of prisoners of war and civilian 
        internees for purposes of continued interrogation is 
        inconsistent with the provisions of the Geneva Conventions''.
            (3) In Hamdi v. Rumsfeld, the Supreme Court held that 
        military detention is justified only to prevent a combatant's 
        return to the battlefield.
            (4) The Geneva Conventions, other binding treaties 
        regulating the conduct of hostilities, and the customary laws 
        of war offer an appropriate legal framework for the detention 
        and internment of combatants and civilians in zones of active 
        military operations in international armed conflicts. Congress 
        does not seek to subject detentions within this framework to 
        the oversight of United States courts to the extent they are 
        not already subject to such oversight.
            (5) Zones of active military operations do not necessarily 
        correspond to national boundaries.
            (6) Outside of zones of active military operations, the 
        President claims the authority to detain persons who were part 
        of, or substantially supported, Taliban or Al Qaeda forces or 
        associated forces that are engaged in hostilities against the 
        United States or its coalition partners, including any person 
        who has committed a belligerent act, or has directly supported 
        hostilities in aid of such enemy armed forces.
            (7) Some United States courts have adopted a narrower view 
        of the President's authority to detain enemy forces, leaving 
        the President's detention authority outside of active military 
        operations undefined and vulnerable to challenge. This lack of 
        definition is dangerous both to Taliban and Al Qaeda forces and 
        to associated forces, including foreign terrorist forces that 
        are cobelligerents of the Taliban or Al Qaeda.
            (8) There exist no agreed-upon substantive or procedural 
        standards in United States courts to govern the detention of 
        individuals arrested outside of zones of active military 
        operations.
            (9) In some instances, the executive branch may prefer to 
        subject even combatants in zones of active military operations 
        to more rigorous judicial review than the laws of war require 
        at the outset of a detention out of concern to avoid lengthy 
        habeas corpus litigation leading ultimately both to adverse 
        judgments in specific cases and adverse developments in the 
        law.
            (10) A set of rigorous, fair, and flexible judicial 
        procedures to govern the detention of non-United States persons 
        who pose an imperative threat to security are necessary to 
        promote regularity and legal certainty in American detention 
        policy, as well as to ensure that detainees receive timely and 
        predictable access to judicial review based on known procedures 
        and substantive standards.

SEC. 202. DETENTION CRITERIA AND PROCEDURES.

    (a) Determination of Threat.--For covered individuals taken into 
custody, as of the date of enactment of this Act, the President shall 
make a specific determination as to whether the covered individual 
poses a danger to the security and interests of the United States based 
on the criteria in subsection (b). An individual who meets any of the 
criteria contained in subsection (b) shall constitute an imperative 
threat to the interests of the United States and, thus, is detainable 
under this Act.
    (b) Detention Criteria.--The President shall make such a 
determination, on a case-by-case basis, using the following criteria:
            (1) The covered individual is an agent of a foreign power.
            (2) That foreign power is one against which the use of 
        military force was authorized under the Authorization for Use 
        of Military Force (Public Law 107-40; 115 Stat. 224; 50 U.S.C. 
        1541 note).
            (3) The actions of the covered individual, in his capacity 
        as an agent of the foreign power described in paragraphs (1) 
        and (2) pose a danger both to any person and to the interests 
        of the United States.
    (c) Initial Detention of Non-United States Persons.--
            (1) In general.--The Government may detain, for not more 
        than 14 days, a covered individual who the President reasonably 
        believes meets the requirements under subsection (b).
            (2) Arrest notice.--The Government shall promptly present 
        to any covered individual detained under subsection (a)--
                    (A) a notice of arrest that includes the reasons 
                for which the covered individual is being detained;
                    (B) a notice that detention under subsection (a) 
                shall be for not more than 14 days;
                    (C) a notice that the Government may apply for a 
                detention order under section 4; and
                    (D) an explanation of the laws and procedures 
                governing such an application and detention order, 
                including the right of the detainee to counsel in 
                connection with such proceedings.
            (3) Information provided.--All information provided a 
        covered individual under paragraph (2) shall be provided to the 
        covered individual in a language understood by the covered 
        individual.
            (4) End of initial detention.--
                    (A) In general.--Not later than 14 days after the 
                date on which the Government detains a covered 
                individual under subsection (a), the Government shall 
                initiate proceedings under section 203, initiate 
                proceedings under another legal authority, release the 
                covered individual, lawfully transfer the covered 
                individual to a foreign government, or transfer the 
                covered individual to an international tribunal that 
                has jurisdiction to hold a trial of such detainee.
                    (B) Proceedings pending.--The Government may 
                continue to detain a covered individual under this Act 
                while any proceeding under section 203 is pending 
                before the District Court and during the pendency of an 
                appeal by the Government of a decision in a proceeding 
                under section 203.

SEC. 203. DETENTION PROCEEDINGS.

    (a) In General.--
            (1) Determination.--Upon petition by the Government, the 
        District Court shall determine whether a covered individual 
        meets the requirements under section 202(b) of this Act for 
        detention as an imperative threat to security.
            (2) Standard of proof.--In a proceeding under this section, 
        the burden of proof shall be on the Government to demonstrate 
        by a preponderance of the evidence that a covered individual 
        detained under section 202 meets the requirements under section 
        202(b).
    (b) Deference to Executive.--In determining whether a foreign power 
is a foreign power against which the use of military force was 
authorized under the Authorization for Use of Military Force (Public 
Law 107-40; 115 Stat. 224; 50 U.S.C. 1541 note), the District Court 
shall give deference to the identification of an organization by the 
Director of National Intelligence in a report submitted under section 
406 of this Act.
    (c) Hearing Procedures.--
            (1) In general.--In any proceeding under this section, the 
        Attorney General shall submit a written declaration supporting 
        the contention that the covered individual meets the 
        requirements under section 202(b) for detention as an 
        imperative threat to security.
            (2) Discovery.--
                    (A) Scope of discovery.--Subject to subparagraph 
                (B), a covered individual may request from the 
                Government as discovery relating to a proceeding under 
                this section, and if requested by the covered 
                individual the Government shall provide--
                            (i) any document or object referenced in 
                        the petition or written declaration submitted 
                        by the Government under this section;
                            (ii) any evidence in the Government's 
                        possession that tends materially to undermine 
                        information in the petition or written 
                        declaration submitted by the Government under 
                        this section;
                            (iii) any statement, whether oral, written, 
                        or recorded, made or adopted by the covered 
                        individual that is in the Government's 
                        possession and both related and material to the 
                        information in the petition or written 
                        declaration submitted by the Government under 
                        this section; and
                            (iv) any other evidence in the Government's 
                        possession that is both related and material to 
                        the information in the petition or written 
                        declaration submitted by the Government under 
                        this section.
                    (B) Protection of national security information.--
                            (i) Generally.--Classified information 
                        shall be protected and is privileged from 
                        disclosure to the covered individual in 
                        proceedings under this section. The rule under 
                        this subparagraph applies to all stages of any 
                        proceeding under this section.
                            (ii) Substitute.--If any information 
                        described in subparagraph (A) is classified, 
                        the attorney for the Government shall submit 
                        such information to the District Court and 
                        shall prepare for the court's approval an 
                        unclassified summary of the specific classified 
                        evidence or a statement admitting relevant 
                        facts that the specific classified information 
                        would tend to prove. The District Court shall 
                        approve the summary or statement if the 
                        District Court finds that it is sufficient to 
                        enable the detainee to prepare a defense. The 
                        Government shall deliver to the detainee a copy 
                        of the unclassified summary or statement 
                        approved under this subparagraph.
                            (iii) Disapproval.--In general, if an 
                        unclassified summary or statement is not 
                        approved by the District Court under clause 
                        (ii), the Government shall expeditiously 
                        correct the deficiencies identified by the 
                        court and submit a revised unclassified 
                        summary. If the revised unclassified summary is 
                        not approved by the District Court, the 
                        proceeding shall be terminated.
                            (iv) Classified information available to 
                        counsel for detainee.--Classified information 
                        withheld from a detainee shall be available to 
                        properly cleared counsel, if any, for the 
                        covered individual, and the District Court 
                        shall afford such properly cleared counsel the 
                        opportunity to object to the adequacy of any 
                        substitute under clause (ii). If the Government 
                        declines to make such information available to 
                        properly cleared counsel for the covered 
                        individual, the proceeding shall be terminated 
                        unless the Government substitutes a statement 
                        admitting relevant facts that the specific 
                        classified information would tend to prove and 
                        the District Court certifies that such 
                        statement is sufficient to provide the properly 
                        cleared counsel with substantially the same 
                        ability to make a defense as would disclosure 
                        of the specific classified information.
                            (v) 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 under section 406 of the 
                        Classified Information Procedures Act (18 
                        U.S.C. 14 App.).
            (3) Witness production.--
                    (A) In general.--To the maximum extent possible, 
                proceedings under this section shall be decided on the 
                basis of written pleadings and written declarations.
                    (B) Basis for in-person testimony.--The District 
                Court shall grant a motion for oral testimony relating 
                to an evidentiary hearing under this section when the 
                District Court finds that military and intelligence 
                operations would not be substantially harmed by the 
                production of the witness and that oral testimony would 
                provide a material benefit to the resolution by the 
                District Court of the disputed matter. The District 
                Court shall allow witnesses stationed overseas or 
                otherwise unavailable to appear in court to participate 
                from remote locations through available technological 
                means.
            (4) Public proceedings.--To the maximum extent practicable, 
        proceedings under this section shall be conducted in a fashion 
        open to the public. The District Court shall have authority to 
        close proceedings to ensure the security of classified 
        information.
            (5) Certain evidence.--
                    (A) In general.--In determining whether a covered 
                individual meets the requirements under section 202(b) 
                for detention as an imperative threat to security, the 
                District Court may not consider any evidence obtained 
                by a means that violates--
                            (i) the Detainee Treatment Act of 2005 
                        (Public Law 109-148; 119 Stat. 2739; 10 U.S.C. 
                        801 note); or
                            (ii) Common Article 3 of the Geneva 
                        Conventions. Conduct that violates Common 
                        Article 3 includes, but is not limited to, the 
                        following techniques, each of which is 
                        prohibited by Army Field Manual 2-22.3: forcing 
                        a person to be naked, perform sexual acts, or 
                        pose in a sexual manner; applying beatings, 
                        electric shocks, burns, or other forms of 
                        physical pain to the person; waterboarding the 
                        person; threatening the person with dogs; 
                        inducing hypothermia or heat injury; conducting 
                        a mock execution; and depriving the person of 
                        necessary food, water, or medical care.
                    (B) Other evidence.--The rules concerning the 
                admissibility of evidence in civil or criminal trials 
                shall not apply to the presentation and consideration 
                of information at any evidentiary hearing under this 
                section. To the maximum extent allowable under the 
                Constitution, the District Court may consider any 
                reliable and probative evidence, including hearsay from 
                military, intelligence, and law enforcement sources 
                that the District Court determines would be probative 
                to a reasonable person. If any hearsay evidence is 
                admitted, the covered individual shall be entitled to 
                offer evidence impeaching the credibility of the 
                declarant.
            (6) Attorneys.--
                    (A) In general.--The District Court shall appoint 
                an attorney to represent a covered individual in 
                proceedings under this section, unless the covered 
                individual has retained an attorney for such purposes.
                    (B) Requirements for attorneys.--An attorney may 
                represent a covered individual in a proceeding under 
                this section if the attorney--
                            (i) except as provided in subparagraph (E), 
                        has been determined to be eligible for access 
                        to classified information that is classified at 
                        the level Secret or higher, as required; and
                            (ii) has signed a written agreement to 
                        comply with all applicable regulations or 
                        instructions for attorneys in proceedings under 
                        this section before the District Court, 
                        including any rules of court for conduct during 
                        the proceedings.
                    (C) Classified information.--Any attorney for a 
                covered individual shall protect any classified 
                information received during the course of 
                representation of the covered individual in accordance 
                with all applicable law governing the protection of 
                classified information.
                    (D) Security clearance list.--The Attorney General 
                shall establish a list of attorneys with appropriate 
                security clearances who may represent covered 
                individuals in proceedings under this section.
                    (E) Private attorneys.--If an attorney retained by 
                a covered individual for purposes of a proceeding under 
                this section does not have the appropriate security 
                clearances, the Government may grant the attorney an 
                appropriate clearance at its discretion, or the 
                District Court shall assign an attorney on the list 
                established under subparagraph (D) as cocounsel to 
                represent the covered individual in all proceeding 
                under this Act which require access to classified 
                information on the part of counsel for the covered 
                individual.
            (7) Video hearings.--The District Court shall not require 
        the presence of a covered individual detained outside the 
        United States for the purpose of any proceeding under this 
        section. However, the District Court shall permit a covered 
        individual to participate in all proceedings under this section 
        to the extent consistent with the procedures for the protection 
        of classified information and national security under this 
        section. If the covered individual is detained outside the 
        United States, the court shall allow him to participate from 
        the location at which he is detained through available 
        technological means.
            (8) Languages.--Any information relating to the District 
        Court proceedings under this section, including translation of 
        any proceedings in which a covered individual participates, 
        shall be provided to the covered individual in a language 
        understood by the covered individual.
    (d) Detention.--If the District Court determines that a covered 
individual meets the requirements under section 202(b) for detention as 
an imperative threat to security, the District Court shall issue an 
order authorizing the Government to detain the covered individual for 
not more than 6 months. To the maximum extent practicable and 
consistent with the protection of classified information, the District 
Court shall explain in an opinion available to the public the factual 
and legal basis for the detention order. An order under this subsection 
may be renewed for additional periods of not more than 6 months if the 
District Court determines, after a hearing conducted in accordance with 
this section, that the covered individual continues to meet the 
requirements under section 202(b) for detention as an imperative threat 
to security.
    (e) Jurisdiction and Venue.--The District Court shall have 
exclusive jurisdiction over any petition under this Act. An action 
relating to a petition under this Act may only be brought in the 
District Court.

   TITLE III--TRANSPARENCY AND ACCOUNTABILITY OF AMERICAN DETENTION 
                               FACILITIES

SEC. 301. NOTIFICATION AND ACCESS OF INTERNATIONAL COMMITTEE OF THE RED 
              CROSS WITH RESPECT TO DETAINEES AT AMERICAN DETENTION 
              FACILITIES.

    (a) Notification.--The head of a military service or department, or 
of a Federal department or agency, that has custody or effective 
control of the American military detention facility, or of any detainee 
held at such facility, shall, upon initial detention, notify the 
International Committee of the Red Cross (referred to in this section 
as the ``ICRC'') of the custody or effective control of the detainee as 
soon as possible.
    (b) Access.--The head of a military service or department, or of a 
Federal department or agency, with effective control of the American 
detention facility, pursuant to subsection (a), shall ensure ICRC 
access to any detainee within 24 hours of the receipt of an ICRC 
request to access the detainee. Access to the detainee shall continue 
pursuant to ICRC protocols and agreements reached between the ICRC and 
the head of a military service or department, or of a Federal 
department or agency, with effective control over the American 
detention facility.
    (c) Scope of Access.--The ICRC shall be provided access, in 
accordance with this section, to any physical locality at the American 
military detention facility, determined by the ICRC as relevant to the 
treatment of the detainee, including the detainee's cell or room, 
interrogation facilities or rooms, hospital or related health care 
facilities or rooms, or other locations not named in this section.
    (d) Construction.--Nothing in this section shall be construed to--
            (1) limit the authority of a military service or 
        department, a Federal law enforcement agency, or the 
        intelligence community to detain an individual; or
            (2) limit or otherwise affect any other rights or 
        obligations which may arise under the Geneva Conventions, other 
        international agreements, or other laws, or to state all of the 
        situations under which notification to and access for the ICRC 
        is required or allowed.

SEC. 302. REPORT BY THE DEPARTMENT OF DEFENSE.

    The Inspector General of the Department of Defense shall submit to 
Congress an annual report on the conditions of the facilities and 
detainees at the American detention facility. This report shall be in 
unclassified form but may include a classified annex.

           TITLE IV--HABEAS-EXCEPTION TREATMENT OF DETAINEES

SEC. 401. FINDINGS.

    Congress makes the following findings:
            (1) International terrorists, including members of Al 
        Qaeda, have carried out attacks on United States diplomatic and 
        military personnel and facilities abroad and on citizens and 
        property within the United States and constitute a grave and 
        sustained threat to the national security of the United States.
            (2) The ability of the United States to detain, prosecute, 
        and convict individuals suspected of committing or supporting 
        terrorism or of otherwise waging hostilities against the United 
        States, and by the nature of those hostilities violate the laws 
        of armed conflict, is vital to the efforts to combat terrorism 
        and to protect United States national security.
            (3) Attempts to implement a military tribunal system in 
        accordance with Executive Order 13425, the Military Commissions 
        Act of 2006 (Public Law 109-366), or the President's Military 
        Order of November 13, 2001 (66 Fed. Reg. 57,833), have failed 
        to achieve their stated mission of bringing suspected 
        terrorists to justice. As of September 9, 2009, the tribunals 
        and commissions established in connection with these efforts 
        have yielded just three convictions, the first following a 
        guilty plea by the defendant, and have failed to achieve the 
        conviction of a single individual in connection with the 
        terrorist attacks on the United States on September 11, 2001.
            (4) The United States civilian justice system allows for 
        the fair and speedy trial of individuals who engage in 
        terrorist activities against the United States, who are enemy 
        combatants, terrorists, or otherwise engaged in criminal acts, 
        and there is an extensive legal framework providing 
        jurisdiction over the offenses committed by such individuals.
            (5) Since September 11, 2001, the United States civilian 
        justice system has accumulated an impressive record of success 
        in prosecuting and convicting individuals suspected of 
        committing or supporting terrorism, having convicted at least 
        145 such individuals, and is an essential and effective tool in 
        combating international terrorism.
            (6) Existing laws and regulations, including the Classified 
        Information Procedures Act (18 U.S.C. App. 3; Public Law 96-
        456), provide a detailed framework for protecting sensitive and 
        classified information during the prosecution of cases 
        involving terrorism offenses and related crimes.
            (7) In addition to the existing United States civilian and 
        military justice systems, the Federal Government possesses 
        other legal authorities that may be useful as tools in 
        detaining and prosecuting international terrorists, including 
        the authority to detain removable aliens under Federal 
        immigration laws.

SEC. 402. HABEAS-EXCEPTION TREATMENT OF DETAINEES.

    (a) Disposition of Detainees Entitled to the Right of Habeas Corpus 
Review.--Not later than one year after the date of the enactment of 
this Act, covered individuals entitled to habeas corpus protections may 
be processed according to one of the following procedures:
            (1) The detainee shall be charged with an offense 
        cognizable by a United States military or civilian court and 
        transferred to a military or Federal civilian detention 
        facility in the United States for further legal proceedings in 
        the military or civilian justice system, provided that such a 
        Federal military or civilian facility or section thereof has 
        received the highest security rating available for such a 
        facility.
            (2) The detainee shall be transferred to an international 
        tribunal that has jurisdiction to hold a trial of such 
        individual.
            (3) The detainee shall be transferred to the custody of the 
        government of the individual's country of citizenship or a 
        different country, provided that such transfer is consistent 
        with--
                    (A) the Convention Against Torture and Other Forms 
                of Cruel, Inhuman or Degrading Treatment or Punishment 
                done at New York, December 10, 1984;
                    (B) all relevant United States law; and
                    (C) any other international obligation of the 
                United States.
            (4) Continued detention.--If, based on the totality of 
        circumstances, the President determines by a preponderance of 
        evidence that a detainee meets any of the criteria in Section 
        202(b), the detainee may be held in continued detention in 
        accordance with this section or the law of armed conflict.
    (b) Reporting Requirements.--
            (1) Requirement for report.--Not later than 90 days after 
        the date of enactment of this Act, the President shall submit 
        to Congress a report that describes the President's plan to 
        implement this section.
            (2) Requirement to update.--Not later than 30 days after 
        the date on which the President submits the report required 
        under paragraph (1), and every 30 days thereafter, the 
        President shall submit to Congress a follow-up report to ensure 
        that Congress is fully informed of the steps taken to implement 
        this section.
    (c) Construction.--
            (1) Immigration status.--The transfer of an individual 
        under subsection (a) shall not be considered an entry into the 
        United States for purposes of immigration status.
            (2) Custody of detainee.--The Secretary of Homeland 
        Security shall take custody of detainee, pending removal from 
        the United States, if the detainee is acquitted of all charges 
        or, upon completion of a detainee's sentence, in accordance 
        with section 202, does not pose a threat to the United States.
            (3) No additional detention authority.--Nothing in this 
        section may be construed as altering or adding to existing 
        authorities for, or restrictions on, the detention, or transfer 
        of individuals in United States custody.

SEC. 403. SENSE OF CONGRESS.

    It is the sense of Congress that the President--
            (1) should vigorously investigate and prosecute, to the 
        full extent of the law, individuals and organizations suspected 
        of involvement with international terrorism, using all 
        available assets of the United States civilian and military 
        justice systems;
            (2) should carry out a review of the capacity of the United 
        States criminal justice system to successfully investigate and 
        prosecute individuals and organizations suspected of terrorism, 
        including the adequacy of existing Federal antiterrorism laws, 
        and should inform Congress of any gaps or obstacles limiting 
        the ability of the United States to bring terrorists to 
        justice;
            (3) should take immediate measures to enhance international 
        legal cooperation in the investigation and prosecution of 
        individuals and organizations suspected of involvement in 
        international terrorism, including expanding international 
        police cooperation; and
            (4) acknowledge the ongoing efforts of the United States 
        Government to ensure that any prolonged detention is carefully 
        evaluated, justified, and abides by the Constitution, Federal 
        law, international human rights law, and the law of armed 
        conflict.

SEC. 404. DETENTION.

    (a) In General.--Any covered individual detained under this Act 
shall be held in accordance with the conditions of confinement 
guaranteed by Common Article 3 of the Geneva Conventions.
    (b) Location.--Any covered individual detained under this Act shall 
be held in a location accessible to the International Committee of the 
Red Cross.

SEC. 405. REPORTING.

    Not later than 6 months after the date of enactment of this Act, 
and no less frequently than every 6 months thereafter, the Director of 
National Intelligence, in consultation with the Director of the Central 
Intelligence Agency, the Secretary of Defense, the Secretary of 
Homeland Security, the Secretary of the Treasury, and the Secretary of 
State, shall submit to Congress a report identifying the organizations 
which the Executive Branch considers to be forces covered by the 
Authorization for Use of Military Force (Public Law 107-40; 115 Stat. 
224; 50 U.S.C. 1541 note) as ``those nations, organizations, or 
persons'' who ``planned, authorized, committed, or aided the terrorist 
attacks that occurred on September 11, 2001, or harbored such 
organizations or persons'' or as co-belligerents of such forces.

SEC. 406. RULES OF CONSTRUCTION.

    Nothing in this Act may be construed to--
            (1) preclude or impinge on the authority of the Government 
        to detain or intern individuals subject to detention under the 
        laws of war in a theater of active military operation or under 
        another legal authority;
            (2) confer any right upon an individual lawfully detained 
        in a theater of active military operation; or
            (3) require or permit continued detention of an individual 
        after the Government determines the individual is not an 
        imperative threat to security.

SEC. 407. SUNSET.

    The authority under this Act to detain a covered person not already 
detained under section 203 or section 301 shall terminate 3 years after 
the date of enactment of this Act. Authority to renew detention orders 
already in place or to proceed with applications already filed under 
section 4 shall not terminate.
                                 <all>
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