I 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Detainment Reform Act of 2009’’. 

6 (b) TABLE OF CONTENTS.—The table of contents is 

7 as follows: 

Sec. 1. Short title; table of contents. 


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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. 

1 TITLE I—POLICY OF THE 

2 UNITED STATES GOVERN3 MENT AND FINDINGS 

4 SEC. 101. STATEMENT OF POLICY. 

5 It shall be the policy of the United States to— 

6 (1) vigorously implement a sustained national 

7 strategy to combat the short- and long-term threat 

8 to national security posed by terrorism and terrorist 

9 organizations; 

10 (2) arrest, detain, and prosecute to the full ex11 tent of the law individuals who are involved in or are 

12 providing material support for terrorist activities, 

13 and use all appropriate means to obtain from indiVerDate Nov 24 2008 05:50 Oct 07, 2009 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3728.IH H3728

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1 viduals lawfully in United States custody timely, ac2 curate, and actionable intelligence to protect the na3 tional security interests of the United States; 

4 (3) provide personnel working in support of the 

5 Federal Government and involved in the arrest, de6 tention, interrogation, and prosecution of terrorist 

7 suspects with training to uphold principles set forth 

8 in the Constitution, Federal law, international 

9 human rights law, and the law of armed conflict; 

10 (4) prohibit personnel from applying forms of 

11 torture, cruel and inhuman or degrading treatment 

12 or punishment during arrest, detention, interroga13 tion, and prosecution of terrorist suspects; 

14 (5) abide by the rule of law and due process 

15 with accountability and transparency including 

16 International Committee of the Red Cross (ICRC) 

17 access to detainees being held in American detention 

18 facilities; 

19 (6) research and develop the most effective 

20 practices for arrest, detention, interrogation, and 

21 prosecution of terrorist suspects which are consistent 

22 with the United States strategic goals of weakening 

23 terrorist organizations and their recruitment capa24 bilities and strengthening the international leader25 ship of the United States by cooperating with, and 


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1 incorporating insight from the experiences of, allied 

2 nations in combating terrorism and terrorist organi3 zations, in addition to the United States national ex4 perience; and 

5 (7) regularly monitor policies related to the ar6 rest, detention, interrogation, and prosecution of ter7 rorist suspects to ensure that the policy objectives in 

8 paragraphs (1) through (6) are being met. 

9 SEC. 102. FINDINGS. 

10 Congress makes the following findings: 

11 (1) Since 2002, terrorists have been captured 

12 by the United States and their allies and detained 

13 in facilities at United States Naval Station, Guanta14 namo Bay (hereinafter in this Act referred to as 

15 ‘‘GTMO’’), Cuba. 

16 (2) The detainee complex at GTMO can safely 

17 hold individuals who pose a high security risk to the 

18 United States. GTMO provides the maximum secu19 rity required to prevent escape and multiple levels of 

20 confinement opportunities based on compliance of 

21 the detainee. 

22 (3) Intelligence information obtained from ques23 tioning detainees currently held at GTMO in24 cludes— 


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1 (A) the organizational structure of Al 

2 Qaeda and other terrorist groups; 

3 (B) the extent of the presence of terrorist 

4 networks in Europe, the United States, the 

5 Middle East, and possibly other areas; 

6 (C) Al Qaeda’s pursuit of weapons of mass 

7 destruction; 

8 (D) methods of recruitment and locations 

9 of recruitment centers; 

10 (E) terrorist skill sets, including general 

11 and specialized operative training; and 

12 (F) how legitimate financial activities are 

13 used to hide terrorist operations. 

14 (4) Since 2002, the United States has trans15 ferred the substantial majority of detainees at 

16 GTMO to other countries including Albania, Algeria, 

17 Bermuda, Bosnia and Herzegovina, Chad, Denmark, 

18 Egypt, France, Iran, Iraq, Ireland, Jordan, Kuwait, 

19 Kazakhstan, Libya, Maldives, Mauritania, Morocco, 

20 Pakistan, Portugal, Qatar, Russia, Saudi Arabia, 

21 Somaliland, Spain, Sweden, Sudan, Tajikistan, Tu22 nisia, Turkey, Uganda, United Arab Emirates, the 

23 United Kingdom, and Yemen. 

24 (5) There are a substantial number of detainees 

25 from over 30 countries remaining at GTMO. 


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1 (6) These detainees allegedly include terrorist 

2 trainers, terrorist financiers, bombmakers, Osama 

3 bin Laden’s bodyguards, recruiters, and facilitators. 

4 Detainees remaining at GTMO fall into three cat5 egories: 

6 (A) Detainees who have been placed in 

7 preventative detention to stop them from re8 turning to the battlefield. 

9 (B) Detainees who have violated American 

10 criminal laws and, besides being subject to pre11 ventative detention, have been brought or are 

12 expected to be brought before a military or 

13 other tribunal to face criminal charges, includ14 ing for alleged violations of the laws of war. 

15 (C) Detainees who have been cleared for 

16 transfer or release to a foreign country, either 

17 because— 

18 (i) they are not believed to have been 

19 engaged in hostilities, or 

20 (ii) although they were found to have 

21 been enemy belligerents, they are no longer 

22 considered a threat to United States secu23 rity. 

24 Such detainees continue to be held at GTMO 

25 until their transfer can be effectuated. 


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1 (7) The United States is still engaged in armed 

2 conflict with terrorist organizations, and will likely 

3 continue to capture terrorists or other hostile actors 

4 who will need to be detained. 

5 (8) If the detention facility at GTMO is closed, 

6 some United States domestic or overseas detention 

7 facilities will house the detainees while they await 

8 disposition. 

9 (9) In addition to the facilities at GTMO, the 

10 American military currently detains approximately 

11 600 individuals at the military detention facility at 

12 Bagram Air Base in Afghanistan. 

13 (10) Though the number of detainees at GTMO 

14 is currently decreasing, the number of detainees at 

15 Bagram is increasing. 

16 (11) Detainees at Bagram currently do not 

17 have access to lawyers, have no right to hear the al18 legations against them, and only receive rudimentary 

19 reviews of their status as ‘‘enemy combatants’’. 

20 Many detainees there have been held for years with21 out charge or access to legal representation. 

22 (12) Recent guidelines proposed by the Depart23 ment of Defense assign each detainee a United 

24 States military official advocate on the detainee’s be25 half. These officials, however, are not attorneys and 


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1 the proposed proceedings do not adequately remedy 

2 detention procedure problems nor do they ensure 

3 transparency and accountability in the review proc4 ess. 

5 (13) At least one United States District Court, 

6 in Maqaleh v. Gates, has ruled that some detainees 

7 at Bagram are entitled to some form of Constitu8 tional protection. 

9 SEC. 103. DEFINITIONS. 

10 In this Act— 

11 (1) the terms ‘‘agent of a foreign power’’, ‘‘for12 eign power’’, and ‘‘United States person’’ have the 

13 meanings given such terms in section 101 of the 

14 Foreign Intelligence Surveillance Act of 1978 (50 

15 U.S.C. 1801); 

16 (2) the term ‘‘covered individual’’ means an in17 dividual who is not a United States person; 

18 (3) the term ‘‘District Court’’ means the United 

19 States District Court for the District of Columbia; 

20 and 

21 (4) the term ‘‘Geneva Conventions’’ means— 

22 (A) the Convention for the Amelioration of 

23 the Condition of the Wounded and Sick in 

24 Armed Forces in the Field, done at Geneva, 

25 August 12, 1949 (6 UST 3217); 


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1 (B) the Convention for the Amelioration of 

2 the Condition of the Wounded, Sick, and Ship3 wrecked Members of the Armed Forces at Sea, 

4 done at Geneva, August 12, 1949 (6 UST 

5 3217); 

6 (C) the Convention Relative to the Treat7 ment of Prisoners of War, done at Geneva, Au8 gust 12, 1949 (6 UST 3316); and 

9 (D) the Convention Relative to the Protec10 tion of Civilian Persons in Time of War, done 

11 at Geneva, August 12, 1949 (6 UST 3516). 

12 TITLE II—DETENTION CRITERIA; 

13 DEFINITION OF DETAINEE 

14 SEC. 201. FINDINGS. 

15 Congress makes the following findings: 

16 (1) The Supreme Court has stated that, at a 

17 minimum, Common Article 3 applies to the conflict 

18 with Al Qaeda and its affiliates. 

19 (2) The United Nations Commission on Human 

20 Rights has said ‘‘the indefinite detention of pris21 oners of war and civilian internees for purposes of 

22 continued interrogation is inconsistent with the pro23 visions of the Geneva Conventions’’. 


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1 (3) In Hamdi v. Rumsfeld, the Supreme Court 

2 held that military detention is justified only to pre3 vent a combatant’s return to the battlefield. 

4 (4) The Geneva Conventions, other binding 

5 treaties regulating the conduct of hostilities, and the 

6 customary laws of war offer an appropriate legal 

7 framework for the detention and internment of com8 batants and civilians in zones of active military oper9 ations in international armed conflicts. Congress 

10 does not seek to subject detentions within this 

11 framework to the oversight of United States courts 

12 to the extent they are not already subject to such 

13 oversight. 

14 (5) Zones of active military operations do not 

15 necessarily correspond to national boundaries. 

16 (6) Outside of zones of active military oper17 ations, the President claims the authority to detain 

18 persons who were part of, or substantially sup19 ported, Taliban or Al Qaeda forces or associated 

20 forces that are engaged in hostilities against the 

21 United States or its coalition partners, including any 

22 person who has committed a belligerent act, or has 

23 directly supported hostilities in aid of such enemy 

24 armed forces. 


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1 (7) Some United States courts have adopted a 

2 narrower view of the President’s authority to detain 

3 enemy forces, leaving the President’s detention au4 thority outside of active military operations unde5 fined and vulnerable to challenge. This lack of defi6 nition is dangerous both to Taliban and Al Qaeda 

7 forces and to associated forces, including foreign ter8 rorist forces that are cobelligerents of the Taliban or 

9 Al Qaeda. 

10 (8) There exist no agreed-upon substantive or 

11 procedural standards in United States courts to gov12 ern the detention of individuals arrested outside of 

13 zones of active military operations. 

14 (9) In some instances, the executive branch 

15 may prefer to subject even combatants in zones of 

16 active military operations to more rigorous judicial 

17 review than the laws of war require at the outset of 

18 a detention out of concern to avoid lengthy habeas 

19 corpus litigation leading ultimately both to adverse 

20 judgments in specific cases and adverse develop21 ments in the law. 

22 (10) A set of rigorous, fair, and flexible judicial 

23 procedures to govern the detention of non-United 

24 States persons who pose an imperative threat to se25 curity are necessary to promote regularity and legal 


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1 certainty in American detention policy, as well as to 

2 ensure that detainees receive timely and predictable 

3 access to judicial review based on known procedures 

4 and substantive standards. 

5 SEC. 202. DETENTION CRITERIA AND PROCEDURES. 

6 (a) DETERMINATION OF THREAT.—For covered indi7 viduals taken into custody, as of the date of enactment 

8 of this Act, the President shall make a specific determina9 tion as to whether the covered individual poses a danger 

10 to the security and interests of the United States based 

11 on the criteria in subsection (b). An individual who meets 

12 any of the criteria contained in subsection (b) shall con13 stitute an imperative threat to the interests of the United 

14 States and, thus, is detainable under this Act. 

15 (b) DETENTION CRITERIA.—The President shall 

16 make such a determination, on a case-by-case basis, using 

17 the following criteria: 

18 (1) The covered individual is an agent of a for19 eign power. 

20 (2) That foreign power is one against which the 

21 use of military force was authorized under the Au22 thorization for Use of Military Force (Public Law 

23 107–40; 115 Stat. 224; 50 U.S.C. 1541 note). 

24 (3) The actions of the covered individual, in his 

25 capacity as an agent of the foreign power described 


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1 in paragraphs (1) and (2) pose a danger both to any 

2 person and to the interests of the United States. 

3 (c) INITIAL DETENTION OF NON-UNITED STATES

4 PERSONS.— 

5 (1) IN GENERAL.—The Government may de6 tain, for not more than 14 days, a covered individual 

7 who the President reasonably believes meets the re8 quirements under subsection (b). 

9 (2) ARREST NOTICE.—The Government shall 

10 promptly present to any covered individual detained 

11 under subsection (a)— 

12 (A) a notice of arrest that includes the rea13 sons for which the covered individual is being 

14 detained; 

15 (B) a notice that detention under sub16 section (a) shall be for not more than 14 days; 

17 (C) a notice that the Government may 

18 apply for a detention order under section 4; and 

19 (D) an explanation of the laws and proce20 dures governing such an application and deten21 tion order, including the right of the detainee to 

22 counsel in connection with such proceedings. 

23 (3) INFORMATION PROVIDED.—All information 

24 provided a covered individual under paragraph (2) 


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1 shall be provided to the covered individual in a lan2 guage understood by the covered individual. 

3 (4) END OF INITIAL DETENTION.— 

4 (A) IN GENERAL.—Not later than 14 days 

5 after the date on which the Government detains 

6 a covered individual under subsection (a), the 

7 Government shall initiate proceedings under 

8 section 203, initiate proceedings under another 

9 legal authority, release the covered individual, 

10 lawfully transfer the covered individual to a for11 eign government, or transfer the covered indi12 vidual to an international tribunal that has ju13 risdiction to hold a trial of such detainee. 

14 (B) PROCEEDINGS PENDING.—The Gov15 ernment may continue to detain a covered indi16 vidual under this Act while any proceeding 

17 under section 203 is pending before the District 

18 Court and during the pendency of an appeal by 

19 the Government of a decision in a proceeding 

20 under section 203. 

21 SEC. 203. DETENTION PROCEEDINGS. 

22 (a) IN GENERAL.— 

23 (1) DETERMINATION.—Upon petition by the 

24 Government, the District Court shall determine 

25 whether a covered individual meets the requirements 


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1 under section 202(b) of this Act for detention as an 

2 imperative threat to security. 

3 (2) STANDARD OF PROOF.—In a proceeding 

4 under this section, the burden of proof shall be on 

5 the Government to demonstrate by a preponderance 

6 of the evidence that a covered individual detained 

7 under section 202 meets the requirements under sec8 tion 202(b). 

9 (b) DEFERENCE TO EXECUTIVE.—In determining 

10 whether a foreign power is a foreign power against which 

11 the use of military force was authorized under the Author12 ization for Use of Military Force (Public Law 107–40; 115 

13 Stat. 224; 50 U.S.C. 1541 note), the District Court shall 

14 give deference to the identification of an organization by 

15 the Director of National Intelligence in a report submitted 

16 under section 406 of this Act. 

17 (c) HEARING PROCEDURES.— 

18 (1) IN GENERAL.—In any proceeding under this 

19 section, the Attorney General shall submit a written 

20 declaration supporting the contention that the cov21 ered individual meets the requirements under section 

22 202(b) for detention as an imperative threat to secu23 rity. 

24 (2) DISCOVERY.— 


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1 (A) SCOPE OF DISCOVERY.—Subject to 

2 subparagraph (B), a covered individual may re3 quest from the Government as discovery relat4 ing to a proceeding under this section, and if 

5 requested by the covered individual the Govern6 ment shall provide— 

7 (i) any document or object referenced 

8 in the petition or written declaration sub9 mitted by the Government under this sec10 tion; 

11 (ii) any evidence in the Government’s 

12 possession that tends materially to under13 mine information in the petition or written 

14 declaration submitted by the Government 

15 under this section; 

16 (iii) any statement, whether oral, writ17 ten, or recorded, made or adopted by the 

18 covered individual that is in the Govern19 ment’s possession and both related and 

20 material to the information in the petition 

21 or written declaration submitted by the 

22 Government under this section; and 

23 (iv) any other evidence in the Govern24 ment’s possession that is both related and 

25 material to the information in the petition 


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1 or written declaration submitted by the 

2 Government under this section. 

3 (B) PROTECTION OF NATIONAL SECURITY

4 INFORMATION.— 

5 (i) GENERALLY.—Classified informa6 tion shall be protected and is privileged 

7 from disclosure to the covered individual in 

8 proceedings under this section. The rule 

9 under this subparagraph applies to all 

10 stages of any proceeding under this sec11 tion. 

12 (ii) SUBSTITUTE.—If any information 

13 described in subparagraph (A) is classified, 

14 the attorney for the Government shall sub15 mit such information to the District Court 

16 and shall prepare for the court’s approval 

17 an unclassified summary of the specific 

18 classified evidence or a statement admit19 ting relevant facts that the specific classi20 fied information would tend to prove. The 

21 District Court shall approve the summary 

22 or statement if the District Court finds 

23 that it is sufficient to enable the detainee 

24 to prepare a defense. The Government 

25 shall deliver to the detainee a copy of the 


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1 unclassified summary or statement ap2 proved under this subparagraph. 

3 (iii) DISAPPROVAL.—In general, if an 

4 unclassified summary or statement is not 

5 approved by the District Court under 

6 clause (ii), the Government shall expedi7 tiously correct the deficiencies identified by 

8 the court and submit a revised unclassified 

9 summary. If the revised unclassified sum10 mary is not approved by the District 

11 Court, the proceeding shall be terminated. 

12 (iv) CLASSIFIED INFORMATION AVAIL13 ABLE TO COUNSEL FOR DETAINEE.—Clas14 sified information withheld from a detainee 

15 shall be available to properly cleared coun16 sel, if any, for the covered individual, and 

17 the District Court shall afford such prop18 erly cleared counsel the opportunity to ob19 ject to the adequacy of any substitute 

20 under clause (ii). If the Government de21 clines to make such information available 

22 to properly cleared counsel for the covered 

23 individual, the proceeding shall be termi24 nated unless the Government substitutes a 

25 statement admitting relevant facts that the 


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1 specific classified information would tend 

2 to prove and the District Court certifies 

3 that such statement is sufficient to provide 

4 the properly cleared counsel with substan5 tially the same ability to make a defense as 

6 would disclosure of the specific classified 

7 information. 

8 (v) INTERLOCUTORY APPEAL.—The 

9 Government may take an interlocutory ap10 peal from a decision of the District Court 

11 relating to the disclosure of classified in12 formation subject to the same expedited 

13 procedures that would apply to such an ap14 peal under section 406 of the Classified In15 formation Procedures Act (18 U.S.C. 14 

16 App.). 

17 (3) WITNESS PRODUCTION.— 

18 (A) IN GENERAL.—To the maximum ex19 tent possible, proceedings under this section 

20 shall be decided on the basis of written plead21 ings and written declarations. 

22 (B) BASIS FOR IN-PERSON TESTIMONY.— 

23 The District Court shall grant a motion for oral 

24 testimony relating to an evidentiary hearing 

25 under this section when the District Court finds 


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1 that military and intelligence operations would 

2 not be substantially harmed by the production 

3 of the witness and that oral testimony would 

4 provide a material benefit to the resolution by 

5 the District Court of the disputed matter. The 

6 District Court shall allow witnesses stationed 

7 overseas or otherwise unavailable to appear in 

8 court to participate from remote locations 

9 through available technological means. 

10 (4) PUBLIC PROCEEDINGS.—To the maximum 

11 extent practicable, proceedings under this section 

12 shall be conducted in a fashion open to the public. 

13 The District Court shall have authority to close pro14 ceedings to ensure the security of classified informa15 tion. 

16 (5) CERTAIN EVIDENCE.— 

17 (A) IN GENERAL.—In determining whether 

18 a covered individual meets the requirements 

19 under section 202(b) for detention as an imper20 ative threat to security, the District Court may 

21 not consider any evidence obtained by a means 

22 that violates— 

23 (i) the Detainee Treatment Act of 

24 2005 (Public Law 109–148; 119 Stat. 

25 2739; 10 U.S.C. 801 note); or 


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1 (ii) Common Article 3 of the Geneva 

2 Conventions. Conduct that violates Com3 mon Article 3 includes, but is not limited 

4 to, the following techniques, each of which 

5 is prohibited by Army Field Manual 2– 

6 22.3: forcing a person to be naked, per7 form sexual acts, or pose in a sexual man8 ner; applying beatings, electric shocks, 

9 burns, or other forms of physical pain to 

10 the person; waterboarding the person; 

11 threatening the person with dogs; inducing 

12 hypothermia or heat injury; conducting a 

13 mock execution; and depriving the person 

14 of necessary food, water, or medical care. 

15 (B) OTHER EVIDENCE.—The rules con16 cerning the admissibility of evidence in civil or 

17 criminal trials shall not apply to the presen18 tation and consideration of information at any 

19 evidentiary hearing under this section. To the 

20 maximum extent allowable under the Constitu21 tion, the District Court may consider any reli22 able and probative evidence, including hearsay 

23 from military, intelligence, and law enforcement 

24 sources that the District Court determines 

25 would be probative to a reasonable person. If 


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1 any hearsay evidence is admitted, the covered 

2 individual shall be entitled to offer evidence im3 peaching the credibility of the declarant. 

4 (6) ATTORNEYS.— 

5 (A) IN GENERAL.—The District Court 

6 shall appoint an attorney to represent a covered 

7 individual in proceedings under this section, un8 less the covered individual has retained an at9 torney for such purposes. 

10 (B) REQUIREMENTS FOR ATTORNEYS.—An 

11 attorney may represent a covered individual in 

12 a proceeding under this section if the attor13 ney— 

14 (i) except as provided in subparagraph 

15 (E), has been determined to be eligible for 

16 access to classified information that is clas17 sified at the level Secret or higher, as re18 quired; and 

19 (ii) has signed a written agreement to 

20 comply with all applicable regulations or 

21 instructions for attorneys in proceedings 

22 under this section before the District 

23 Court, including any rules of court for con24 duct during the proceedings. 


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1 (C) CLASSIFIED INFORMATION.—Any at2 torney for a covered individual shall protect any 

3 classified information received during the course 

4 of representation of the covered individual in 

5 accordance with all applicable law governing the 

6 protection of classified information. 

7 (D) SECURITY CLEARANCE LIST.—The At8 torney General shall establish a list of attorneys 

9 with appropriate security clearances who may 

10 represent covered individuals in proceedings 

11 under this section. 

12 (E) PRIVATE ATTORNEYS.—If an attorney 

13 retained by a covered individual for purposes of 

14 a proceeding under this section does not have 

15 the appropriate security clearances, the Govern16 ment may grant the attorney an appropriate 

17 clearance at its discretion, or the District Court 

18 shall assign an attorney on the list established 

19 under subparagraph (D) as cocounsel to rep20 resent the covered individual in all proceeding 

21 under this Act which require access to classified 

22 information on the part of counsel for the cov23 ered individual. 

24 (7) VIDEO HEARINGS.—The District Court 

25 shall not require the presence of a covered individual 


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1 detained outside the United States for the purpose 

2 of any proceeding under this section. However, the 

3 District Court shall permit a covered individual to 

4 participate in all proceedings under this section to 

5 the extent consistent with the procedures for the 

6 protection of classified information and national se7 curity under this section. If the covered individual is 

8 detained outside the United States, the court shall 

9 allow him to participate from the location at which 

10 he is detained through available technological means. 

11 (8) LANGUAGES.—Any information relating to 

12 the District Court proceedings under this section, in13 cluding translation of any proceedings in which a 

14 covered individual participates, shall be provided to 

15 the covered individual in a language understood by 

16 the covered individual. 

17 (d) DETENTION.—If the District Court determines 

18 that a covered individual meets the requirements under 

19 section 202(b) for detention as an imperative threat to se20 curity, the District Court shall issue an order authorizing 

21 the Government to detain the covered individual for not 

22 more than 6 months. To the maximum extent practicable 

23 and consistent with the protection of classified informa24 tion, the District Court shall explain in an opinion avail25 able to the public the factual and legal basis for the detenVerDate Nov 24 2008 05:50 Oct 07, 2009 Jkt 089200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\H3728.IH H3728

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1 tion order. An order under this subsection may be renewed 

2 for additional periods of not more than 6 months if the 

3 District Court determines, after a hearing conducted in 

4 accordance with this section, that the covered individual 

5 continues to meet the requirements under section 202(b) 

6 for detention as an imperative threat to security. 

7 (e) JURISDICTION AND VENUE.—The District Court 

8 shall have exclusive jurisdiction over any petition under 

9 this Act. An action relating to a petition under this Act 

10 may only be brought in the District Court. 

11 TITLE III—TRANSPARENCY AND 

12 ACCOUNTABILITY OF AMER13 ICAN DETENTION FACILITIES 

14 SEC. 301. NOTIFICATION AND ACCESS OF INTERNATIONAL 

15 COMMITTEE OF THE RED CROSS WITH RE16 SPECT TO DETAINEES AT AMERICAN DETEN17 TION FACILITIES. 

18 (a) NOTIFICATION.—The head of a military service 

19 or department, or of a Federal department or agency, that 

20 has custody or effective control of the American military 

21 detention facility, or of any detainee held at such facility, 

22 shall, upon initial detention, notify the International Com23 mittee of the Red Cross (referred to in this section as the 

24 ‘‘ICRC’’) of the custody or effective control of the detainee 

25 as soon as possible. 


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1 (b) ACCESS.—The head of a military service or de2 partment, or of a Federal department or agency, with ef3 fective control of the American detention facility, pursuant 

4 to subsection (a), shall ensure ICRC access to any de5 tainee within 24 hours of the receipt of an ICRC request 

6 to access the detainee. Access to the detainee shall con7 tinue pursuant to ICRC protocols and agreements reached 

8 between the ICRC and the head of a military service or 

9 department, or of a Federal department or agency, with 

10 effective control over the American detention facility. 

11 (c) SCOPE OF ACCESS.—The ICRC shall be provided 

12 access, in accordance with this section, to any physical lo13 cality at the American military detention facility, deter14 mined by the ICRC as relevant to the treatment of the 

15 detainee, including the detainee’s cell or room, interroga16 tion facilities or rooms, hospital or related health care fa17 cilities or rooms, or other locations not named in this sec18 tion. 

19 (d) CONSTRUCTION.—Nothing in this section shall be 

20 construed to— 

21 (1) limit the authority of a military service or 

22 department, a Federal law enforcement agency, or 

23 the intelligence community to detain an individual; 

24 or 


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1 (2) limit or otherwise affect any other rights or 

2 obligations which may arise under the Geneva Con3 ventions, other international agreements, or other 

4 laws, or to state all of the situations under which no5 tification to and access for the ICRC is required or 

6 allowed. 

7 SEC. 302. REPORT BY THE DEPARTMENT OF DEFENSE. 

8 The Inspector General of the Department of Defense 

9 shall submit to Congress an annual report on the condi10 tions of the facilities and detainees at the American deten11 tion facility. This report shall be in unclassified form but 

12 may include a classified annex. 

13 TITLE IV—HABEAS-EXCEPTION 

14 TREATMENT OF DETAINEES 

15 SEC. 401. FINDINGS. 

16 Congress makes the following findings: 

17 (1) International terrorists, including members 

18 of Al Qaeda, have carried out attacks on United 

19 States diplomatic and military personnel and facili20 ties abroad and on citizens and property within the 

21 United States and constitute a grave and sustained 

22 threat to the national security of the United States. 

23 (2) The ability of the United States to detain, 

24 prosecute, and convict individuals suspected of com25 mitting or supporting terrorism or of otherwise wagVerDate Nov 24 2008 05:50 Oct 07, 2009 Jkt 089200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\H3728.IH H3728

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1 ing hostilities against the United States, and by the 

2 nature of those hostilities violate the laws of armed 

3 conflict, is vital to the efforts to combat terrorism 

4 and to protect United States national security. 

5 (3) Attempts to implement a military tribunal 

6 system in accordance with Executive Order 13425, 

7 the Military Commissions Act of 2006 (Public Law 

8 109–366), or the President’s Military Order of No9 vember 13, 2001 (66 Fed. Reg. 57,833), have failed 

10 to achieve their stated mission of bringing suspected 

11 terrorists to justice. As of September 9, 2009, the 

12 tribunals and commissions established in connection 

13 with these efforts have yielded just three convictions, 

14 the first following a guilty plea by the defendant, 

15 and have failed to achieve the conviction of a single 

16 individual in connection with the terrorist attacks on 

17 the United States on September 11, 2001. 

18 (4) The United States civilian justice system al19 lows for the fair and speedy trial of individuals who 

20 engage in terrorist activities against the United 

21 States, who are enemy combatants, terrorists, or 

22 otherwise engaged in criminal acts, and there is an 

23 extensive legal framework providing jurisdiction over 

24 the offenses committed by such individuals. 


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1 (5) Since September 11, 2001, the United 

2 States civilian justice system has accumulated an 

3 impressive record of success in prosecuting and con4 victing individuals suspected of committing or sup5 porting terrorism, having convicted at least 145 such 

6 individuals, and is an essential and effective tool in 

7 combating international terrorism. 

8 (6) Existing laws and regulations, including the 

9 Classified Information Procedures Act (18 U.S.C. 

10 App. 3; Public Law 96–456), provide a detailed 

11 framework for protecting sensitive and classified in12 formation during the prosecution of cases involving 

13 terrorism offenses and related crimes. 

14 (7) In addition to the existing United States ci15 vilian and military justice systems, the Federal Gov16 ernment possesses other legal authorities that may 

17 be useful as tools in detaining and prosecuting inter18 national terrorists, including the authority to detain 

19 removable aliens under Federal immigration laws. 

20 SEC. 402. HABEAS-EXCEPTION TREATMENT OF DETAINEES. 

21 (a) DISPOSITION OF DETAINEES ENTITLED TO THE

22 RIGHT OF HABEAS CORPUS REVIEW.—Not later than one 

23 year after the date of the enactment of this Act, covered 

24 individuals entitled to habeas corpus protections may be 

25 processed according to one of the following procedures: 


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1 (1) The detainee shall be charged with an of2 fense cognizable by a United States military or civil3 ian court and transferred to a military or Federal ci4 vilian detention facility in the United States for fur5 ther legal proceedings in the military or civilian jus6 tice system, provided that such a Federal military or 

7 civilian facility or section thereof has received the 

8 highest security rating available for such a facility. 

9 (2) The detainee shall be transferred to an 

10 international tribunal that has jurisdiction to hold a 

11 trial of such individual. 

12 (3) The detainee shall be transferred to the cus13 tody of the government of the individual’s country of 

14 citizenship or a different country, provided that such 

15 transfer is consistent with— 

16 (A) the Convention Against Torture and 

17 Other Forms of Cruel, Inhuman or Degrading 

18 Treatment or Punishment done at New York, 

19 December 10, 1984; 

20 (B) all relevant United States law; and 

21 (C) any other international obligation of 

22 the United States. 

23 (4) CONTINUED DETENTION.—If, based on the 

24 totality of circumstances, the President determines 

25 by a preponderance of evidence that a detainee 


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1 meets any of the criteria in Section 202(b), the de2 tainee may be held in continued detention in accord3 ance with this section or the law of armed conflict. 

4 (b) REPORTING REQUIREMENTS.— 

5 (1) REQUIREMENT FOR REPORT.—Not later 

6 than 90 days after the date of enactment of this 

7 Act, the President shall submit to Congress a report 

8 that describes the President’s plan to implement this 

9 section. 

10 (2) REQUIREMENT TO UPDATE.—Not later 

11 than 30 days after the date on which the President 

12 submits the report required under paragraph (1), 

13 and every 30 days thereafter, the President shall 

14 submit to Congress a follow-up report to ensure that 

15 Congress is fully informed of the steps taken to im16 plement this section. 

17 (c) CONSTRUCTION.— 

18 (1) IMMIGRATION STATUS.—The transfer of an 

19 individual under subsection (a) shall not be consid20 ered an entry into the United States for purposes of 

21 immigration status. 

22 (2) CUSTODY OF DETAINEE.—The Secretary of 

23 Homeland Security shall take custody of detainee, 

24 pending removal from the United States, if the de25 tainee is acquitted of all charges or, upon completion 


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1 of a detainee’s sentence, in accordance with section 

2 202, does not pose a threat to the United States. 

3 (3) NO ADDITIONAL DETENTION AUTHORITY.— 

4 Nothing in this section may be construed as altering 

5 or adding to existing authorities for, or restrictions 

6 on, the detention, or transfer of individuals in 

7 United States custody. 

8 SEC. 403. SENSE OF CONGRESS. 

9 It is the sense of Congress that the President— 

10 (1) should vigorously investigate and prosecute, 

11 to the full extent of the law, individuals and organi12 zations suspected of involvement with international 

13 terrorism, using all available assets of the United 

14 States civilian and military justice systems; 

15 (2) should carry out a review of the capacity of 

16 the United States criminal justice system to success17 fully investigate and prosecute individuals and orga18 nizations suspected of terrorism, including the ade19 quacy of existing Federal antiterrorism laws, and 

20 should inform Congress of any gaps or obstacles lim21 iting the ability of the United States to bring terror22 ists to justice; 

23 (3) should take immediate measures to enhance 

24 international legal cooperation in the investigation 

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1 pected of involvement in international terrorism, in2 cluding expanding international police cooperation; 

3 and 

4 (4) acknowledge the ongoing efforts of the 

5 United States Government to ensure that any pro6 longed detention is carefully evaluated, justified, and 

7 abides by the Constitution, Federal law, inter8 national human rights law, and the law of armed 

9 conflict. 

10 SEC. 404. DETENTION. 

11 (a) IN GENERAL.—Any covered individual detained 

12 under this Act shall be held in accordance with the condi13 tions of confinement guaranteed by Common Article 3 of 

14 the Geneva Conventions. 

15 (b) LOCATION.—Any covered individual detained 

16 under this Act shall be held in a location accessible to the 

17 International Committee of the Red Cross. 

18 SEC. 405. REPORTING. 

19 Not later than 6 months after the date of enactment 

20 of this Act, and no less frequently than every 6 months 

21 thereafter, the Director of National Intelligence, in con22 sultation with the Director of the Central Intelligence 

23 Agency, the Secretary of Defense, the Secretary of Home24 land Security, the Secretary of the Treasury, and the Sec25 retary of State, shall submit to Congress a report identiVerDate Nov 24 2008 05:50 Oct 07, 2009 Jkt 089200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\H3728.IH H3728

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1 fying the organizations which the Executive Branch con2 siders to be forces covered by the Authorization for Use 

3 of Military Force (Public Law 107–40; 115 Stat. 224; 50 

4 U.S.C. 1541 note) as ‘‘those nations, organizations, or 

5 persons’’ who ‘‘planned, authorized, committed, or aided 

6 the terrorist attacks that occurred on September 11, 2001, 

7 or harbored such organizations or persons’’ or as co-bellig8 erents of such forces. 

9 SEC. 406. RULES OF CONSTRUCTION. 

10 Nothing in this Act may be construed to— 

11 (1) preclude or impinge on the authority of the 

12 Government to detain or intern individuals subject 

13 to detention under the laws of war in a theater of 

14 active military operation or under another legal au15 thority; 

16 (2) confer any right upon an individual lawfully 

17 detained in a theater of active military operation; or 

18 (3) require or permit continued detention of an 

19 individual after the Government determines the indi20 vidual is not an imperative threat to security. 

21 SEC. 407. SUNSET. 

22 The authority under this Act to detain a covered per23 son not already detained under section 203 or section 301 

24 shall terminate 3 years after the date of enactment of this 

25 Act. Authority to renew detention orders already in place 


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1 or to proceed with applications already filed under section 

2 4 shall not terminate. 

Æ 


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