II 

112TH CONGRESS 

1ST SESSION S. 551 

To improve procedures for the detention and review of status of detainees 

of the United States in connection with the continuing armed conflict 

with al Qaeda, the Taliban, and affiliated groups. 

IN THE SENATE OF THE UNITED STATES 

MARCH 10, 2011 

Mr. MCCAIN (for himself, Mr. GRAHAM, Mr. LIEBERMAN, Mr. CHAMBLISS, 

Ms. AYOTTE, and Mr. BROWN of Massachusetts) introduced the following 

bill; which was read twice and referred to the Committee on Armed Services 

A BILL 

To improve procedures for the detention and review of status 

of detainees of the United States in connection with 

the continuing armed conflict with al Qaeda, the Taliban, 

and affiliated groups. 

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. 

4 This Act may be cited as the ‘‘Military Detainee Pro5 cedures Improvement Act of 2011’’. 


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1 SEC. 2. REAFFIRMATION OF AUTHORITY OF THE PRESI2 DENT TO DETAIN UNPRIVILEGED ENEMY 

3 BELLIGERENTS IN CONNECTION WITH THE 

4 CONTINUING ARMED CONFLICT WITH AL 

5 QAEDA, THE TALIBAN, AND AFFILIATED 

6 GROUPS. 

7 (a) IN GENERAL.—Congress reaffirms that the 

8 United States is in an armed conflict with al Qaeda, the 

9 Taliban, and affiliated groups and that those entities con10 tinue to pose a threat to the United States and its citizens, 

11 both domestically and abroad. 

12 (b) AUTHORITY.—Congress reaffirms that the Presi13 dent is authorized to detain unprivileged enemy belliger14 ents in connection with the continuing armed conflict with 

15 al Qaeda, the Taliban, and affiliated groups, regardless 

16 of the place of capture, until the termination of hostilities. 

17 (c) RULE OF CONSTRUCTION.—The authority de18 scribed in subsection (b) shall not be construed to alter 

19 or limit the authority of the President under the Constitu20 tion of the United States to detain belligerents in the con21 tinuing armed conflict with al Qaeda, the Taliban, and af22 filiated groups, or in any other armed conflict. 

23 (d) DEFINITIONS.—In this section: 

24 (1) The term ‘‘hostilities’’ means any conflict 

25 subject to the laws of war. 


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1 (2) The term ‘‘privileged belligerent’’ means an 

2 individual belonging to one of the eight categories 

3 enumerated in Article 4 of the Geneva Convention 

4 Relative to the Treatment of Prisoners of War, done 

5 at Geneva August 12, 1949 (6 UST 3316). 

6 (3) The term ‘‘unprivileged enemy belligerent’’ 

7 means an individual (other than a privileged bellig8 erent) who before, on, or after September 11, 

9 2001— 

10 (A) has engaged in hostilities against the 

11 United States or its coalition partners; 

12 (B) has purposefully and materially sup13 ported hostilities against the United States or 

14 its coalition partners; or 

15 (C) was a member of, part of, or operated 

16 in a clandestine, covert, or military capacity on 

17 behalf of al Qaeda, the Taliban, or an affiliated 

18 group against which the Authorization for Use 

19 of Military Force (Public Law 107–40) applies. 

20 SEC. 3. MILITARY CUSTODY FOR MEMBERS OF AL QAEDA, 

21 THE TALIBAN, AND AFFILIATED GROUPS SUB22 JECT TO THE AUTHORIZATION FOR USE OF 

23 MILITARY FORCE. 

24 (a) CUSTODY PENDING DISPOSITION UNDER LAW OF

25 WAR.— 


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1 (1) IN GENERAL.—Except as provided in para2 graph (3), an unprivileged enemy belligerent shall be 

3 held in military custody pending disposition under 

4 the law of war. 

5 (2) DISPOSITION UNDER LAW OF WAR.—The 

6 disposition of a person under the law of war as de7 scribed in paragraph (1) may include the following: 

8 (A) Long-term detention under the law of 

9 war without trial until the end of hostilities 

10 against the nations, organizations, and persons 

11 subject to the Authorization for Use of Military 

12 Force. 

13 (B) Trial under chapter 47A of title 10, 

14 United States Code (as amended by the Mili15 tary Commissions Act of 2009 (title XVIII of 

16 Public Law 111–84)). 

17 (C) Subject to the availability of appropria18 tions— 

19 (i) transfer for trial by an alternative 

20 court or competent tribunal having lawful 

21 jurisdiction; or 

22 (ii) transfer to the custody or control 

23 of the person’s country of origin, any other 

24 foreign country, or any other foreign entity 

25 under section 4. 


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1 (3) WAIVER FOR NATIONAL SECURITY.—The 

2 Secretary of Defense may waive the requirement 

3 under paragraph (1) if the Secretary submits to 

4 Congress certification in writing that such a waiver 

5 is in the national security interests of the United 

6 States. 

7 (b) DEFINITIONS.—In this section: 

8 (1) The term ‘‘hostilities’’ means any conflict 

9 subject to the laws of war. 

10 (2) The term ‘‘privileged belligerent’’ means a 

11 person belonging to one of the eight categories enu12 merated in Article 4 of the Geneva Convention Rel13 ative to the Treatment of Prisoners of War, done at 

14 Geneva August 12, 1949 (6 UST 3316). 

15 (3) The term ‘‘unprivileged enemy belligerent’’ 

16 means a person (other than a privileged belligerent) 

17 who before, on, or after September 11, 2001— 

18 (A) has engaged in hostilities against the 

19 United States or its coalition partners; 

20 (B) has purposefully and materially sup21 ported hostilities against the United States or 

22 its coalition partners; or 

23 (C) was a member of, part of, or operated 

24 in a clandestine, covert, or military capacity on 

25 behalf of al Qaeda, the Taliban, or an affiliated 


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1 group against which the Authorization for Use 

2 of Military Force (Public Law 107–40) applies. 

3 (c) EFFECTIVE DATE.—This section shall take effect 

4 on the date of the enactment of this Act, and shall apply 

5 with respect to unprivileged enemy belligerents who are 

6 taken into the custody or brought under the control of 

7 the United States on or after that date. 

8 SEC. 4. PERMANENT REQUIREMENTS FOR CERTIFICATIONS 

9 RELATING TO THE TRANSFER OF DETAINEES 

10 AT NAVAL STATION GUANTANAMO BAY, 

11 CUBA, TO FOREIGN COUNTRIES AND OTHER 

12 FOREIGN ENTITIES. 

13 (a) CERTIFICATION REQUIRED PRIOR TO TRANS14 FER.— 

15 (1) IN GENERAL.—Except as provided in para16 graph (2), the Secretary of Defense may not use any 

17 amounts authorized to be appropriated or otherwise 

18 available to the Department of Defense to transfer 

19 any individual detained at Guantanamo to the cus20 tody or control of the individual’s country of origin, 

21 any other foreign country, or any other foreign enti22 ty unless the Secretary submits to Congress the cer23 tification described in subsection (b) not later than 

24 30 days before the transfer of the individual. 


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1 (2) EXCEPTION.—Paragraph (1) shall not 

2 apply to any action taken by the Secretary to trans3 fer any individual detained at Guantanamo to effec4 tuate an order affecting the disposition of the indi5 vidual that is issued by a court or competent tri6 bunal of the United States having lawful jurisdic7 tion. The Secretary shall notify Congress promptly 

8 upon the issuance of any such order. 

9 (b) CERTIFICATION.—A certification described in this 

10 subsection is a written certification made by the Secretary 

11 of Defense, with the concurrence of the Secretary of State, 

12 that the government of the foreign country or the recog13 nized leadership of the foreign entity to which the indi14 vidual detained at Guantanamo is to be transferred— 

15 (1) is not a designated state sponsor of ter16 rorism or a designated foreign terrorist organization; 

17 (2) maintains control over each detention facil18 ity in which the individual is to be detained if the 

19 individual is to be housed in a detention facility; 

20 (3) is not, as of the date of the certification, 

21 facing a threat that is likely to substantially affect 

22 its ability to exercise control over the individual; 

23 (4) has agreed to take effective actions to en24 sure that the individual cannot take action to threatVerDate Mar 15 2010 02:15 Mar 12, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S551.IS S551

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1 en the United States, its citizens, or its allies in the 

2 future; 

3 (5) has taken such actions as the Secretary of 

4 Defense determines are necessary to ensure that the 

5 individual cannot engage or reengage in any ter6 rorist activity; and 

7 (6) has agreed to share with the United States 

8 any information that— 

9 (A) is related to the individual or any asso10 ciates of the individual; and 

11 (B) could affect the security of the United 

12 States, its citizens, or its allies. 

13 (c) PROHIBITION AND WAIVER IN CASES OF PRIOR

14 CONFIRMED RECIDIVISM.— 

15 (1) PROHIBITION.—Except as provided in para16 graph (3), the Secretary of Defense may not use any 

17 amounts authorized to be appropriated or otherwise 

18 made available to the Department of Defense to 

19 transfer any individual detained at Guantanamo to 

20 the custody or control of the individual’s country of 

21 origin, any other foreign country, or any other for22 eign entity if there is a confirmed case of any indi23 vidual who was detained at United States Naval Sta24 tion, Guantanamo Bay, Cuba, at any time after Sep25 tember 11, 2001, who was transferred to such forVerDate Mar 15 2010 02:15 Mar 12, 2011 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S551.IS S551

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1 eign country or entity and subsequently engaged in 

2 any terrorist activity. 

3 (2) WAIVER.—The Secretary may waive the 

4 prohibition in paragraph (1) if the Secretary deter5 mines that a transfer otherwise covered by that 

6 paragraph is in the national security interests of the 

7 United States and includes, as part of the certifi8 cation described in subsection (b) relating to such 

9 transfer, the determination of the Secretary under 

10 this paragraph. 

11 (3) EXCEPTION.—Paragraph (1) shall not 

12 apply to any action taken by the Secretary to trans13 fer any individual detained at Guantanamo to effec14 tuate an order affecting the disposition of the indi15 vidual that is issued by a court or competent tri16 bunal of the United States having lawful jurisdic17 tion. The Secretary shall notify Congress promptly 

18 upon the issuance of any such order. 

19 (d) DEFINITIONS.—In this section: 

20 (1) The term ‘‘individual detained at Guanta21 namo’’ means any individual located at United 

22 States Naval Station, Guantanamo Bay, Cuba, as of 

23 October 1, 2009, who— 


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1 (A) is not a citizen of the United States or 

2 a member of the Armed Forces of the United 

3 States; and 

4 (B) is— 

5 (i) in the custody or under the control 

6 of the Department of Defense; or 

7 (ii) otherwise under detention at 

8 United States Naval Station, Guantanamo 

9 Bay, Cuba. 

10 (2) The term ‘‘foreign terrorist organization’’ 

11 means any organization so designated by the Sec12 retary of State under section 219 of the Immigra13 tion and Nationality Act (8 U.S.C. 1189). 

14 (e) REPEAL OF SUPERSEDED AUTHORITY.—Section 

15 1033 of the Ike Skelton National Defense Authorization 

16 Act for Fiscal Year 2011 (Public Law 111–383) is re17 pealed. 

18 SEC. 5. PERMANENT PROHIBITION ON USE OF FUNDS TO 

19 CONSTRUCT OR MODIFY FACILITIES IN THE 

20 UNITED STATES TO HOUSE DETAINEES 

21 TRANSFERRED FROM NAVAL STATION GUAN22 TANAMO BAY, CUBA. 

23 (a) IN GENERAL.—No amounts authorized to be ap24 propriated or otherwise made available to the Department 

25 of Defense may be used to construct or modify any facility 


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1 in the United States, its territories, or possessions to 

2 house any individual described in subsection (c) for the 

3 purposes of detention or imprisonment in the custody or 

4 under the control of the Department of Defense. 

5 (b) EXCEPTION.—The prohibition in subsection (a) 

6 shall not apply to any modification of facilities at United 

7 States Naval Station, Guantanamo Bay, Cuba. 

8 (c) COVERED INDIVIDUALS.—An individual described 

9 in this subsection is any individual located at United 

10 States Naval Station, Guantanamo Bay, Cuba, as of Octo11 ber 1, 2009, who— 

12 (1) is not a citizen of the United States or a 

13 member of the Armed Forces of the United States; 

14 and 

15 (2) is— 

16 (A) in the custody or under the control of 

17 the Department of Defense; or 

18 (B) otherwise under detention at United 

19 States Naval Station, Guantanamo Bay, Cuba. 

20 (d) REPEAL OF SUPERSEDED AUTHORITY.—Section 

21 1034 of the Ike Skelton National Defense Authorization 

22 Act for Fiscal Year 2011 (Public Law 111–383) is amend23 ed by striking subsections (a) and (b). 


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1 SEC. 6. UNIFORM PROCEDURES FOR DETENTION REVIEW 

2 AND STATUS DETERMINATION REGARDING 

3 SUSPECTED UNPRIVILEGED ENEMY BELLIG4 ERENTS. 

5 The Detainee Treatment Act of 2005 (title XIV of 

6 Public Law 109–163; 10 U.S.C. 801 note) is amended by 

7 inserting after section 1405 the following new sections: 

8 ‘‘SEC. 1405A. PROCEDURES FOR ANNUAL DETENTION RE9 VIEW. 

10 ‘‘(a) PROCEDURES.— 

11 ‘‘(1) IN GENERAL.—Not later than 180 days 

12 after the date of the enactment of this section, the 

13 Secretary of Defense shall submit to the appropriate 

14 committees of Congress a report setting forth the 

15 procedures for an annual review process to rec16 ommend to the President whether to release, trans17 fer, or continue to detain in military custody each 

18 detainee described in subsection (b), subject to the 

19 exceptions in subsection (c). 

20 ‘‘(2) RECOMMENDATIONS.—Recommendations 

21 pursuant to the annual review process shall be made 

22 by a panel consisting of military experts in military 

23 operations, intelligence, and anti-terrorism matters, 

24 and shall not bind the President. 

25 ‘‘(b) COVERED DETAINEES.—A detainee described in 

26 this subsection is any individual who is currently detained 


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1 by the United States in military custody at United States 

2 Naval Station Guantanamo Bay, Cuba, as an unprivileged 

3 enemy belligerent. 

4 ‘‘(c) EXCEPTIONS.—A detainee shall not be treated 

5 as a detainee described in subsection (b) under cir6 cumstances as follows: 

7 ‘‘(1) In the case of a detainee upon whom 

8 charges have been served in accordance with section 

9 948s of title 10, United States Code (as amended by 

10 the Military Commissions Act of 2009 (title XVIII 

11 of Public Law 111–84)), until after final judgment 

12 has been reached on such charges. 

13 ‘‘(2) In the case of a detainee who has been 

14 convicted by a military commission under chapter 

15 47A of such title (as so amended) of an offense 

16 under subchapter VIII of that chapter (as so amend17 ed), until after the detainee has completed his sen18 tence. 

19 ‘‘(3) If the detainee has been designated by the 

20 Department of Defense for release or transfer out of 

21 United States custody or has been ordered released 

22 by a court of competent jurisdiction. 

23 ‘‘(d) CONSIDERATIONS.—In considering the rec24 ommendation to make regarding a detainee under the an25 nual review process, a panel shall determine— 


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1 ‘‘(1) whether the detainee represents a con2 tinuing threat to the United States or its allies; and 

3 ‘‘(2) whether there are other factors that form 

4 a need for continued detention of the detainee, in5 cluding— 

6 ‘‘(A) the likelihood the detainee will re7 sume terrorist activity if transferred or re8 leased; 

9 ‘‘(B) the likelihood the detainee will rees10 tablish ties with an organization engaged in 

11 hostilities against the United States or its allies 

12 if transferred or released; 

13 ‘‘(C) the likelihood of family, tribal, or gov14 ernment rehabilitation or support for the de15 tainee if transferred or released; 

16 ‘‘(D) the likelihood the detainee may be 

17 subject to trial by military commission; and 

18 ‘‘(E) any law enforcement interest in the 

19 detainee. 

20 ‘‘(e) DEFINITIONS.—In this section: 

21 ‘‘(1) The term ‘appropriate committees of Con22 gress’ means— 

23 ‘‘(A) the Committee on Armed Services 

24 and the Select Committee on Intelligence of the 

25 Senate; and 


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1 ‘‘(B) the Committee on Armed Services 

2 and the Permanent Select Committee on Intel3 ligence of the House of Representatives. 

4 ‘‘(2) The term ‘hostilities’ means any conflict 

5 subject to the laws of war. 

6 ‘‘(3) The term ‘privileged belligerent’ means an 

7 individual belonging to one of the eight categories 

8 enumerated in Article 4 of the Geneva Convention 

9 Relative to the Treatment of Prisoners of War, done 

10 at Geneva August 12, 1949 (6 UST 3316). 

11 ‘‘(4) The term ‘unprivileged enemy belligerent’ 

12 means an individual (other than a privileged bellig13 erent) who before, on, or after September 11, 

14 2001— 

15 ‘‘(A) has engaged in hostilities against the 

16 United States or its coalition partners; 

17 ‘‘(B) has purposefully and materially sup18 ported hostilities against the United States or 

19 its coalition partners; or 

20 ‘‘(C) was a member of, part of, or operated 

21 in a clandestine, covert, or military capacity on 

22 behalf of al Qaeda, the Taliban, or an affiliated 

23 group against which the Authorization for Use 

24 of Military Force (Public Law 107–40) applies. 


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1 ‘‘SEC. 1405B. PROCEDURES FOR STATUS DETERMINATION 

2 OF UNPRIVILEGED ENEMY BELLIGERENTS. 

3 ‘‘(a) IN GENERAL.—Not later than 90 days after the 

4 date of the enactment of this section, the Secretary of De5 fense shall submit to the appropriate committees of Con6 gress a report setting forth the procedures for determining 

7 the status of unprivileged enemy belligerents under the 

8 custody or control of the United States who are captured 

9 after the date of the enactment of this section, regardless 

10 of the place of capture. 

11 ‘‘(b) ELEMENTS OF PROCEDURES.—The procedures 

12 required by this section shall provide for the following: 

13 ‘‘(1) A military judge shall preside at pro14 ceedings for the determination of status of an 

15 unprivileged enemy belligerent. 

16 ‘‘(2) An unprivileged enemy belligerent may, at 

17 the election of the belligerent, be represented by 

18 military counsel at proceedings for the determination 

19 of status of the belligerent. 

20 ‘‘(c) REPORT ON MODIFICATION OF PROCEDURES.— 

21 The Secretary of Defense shall submit to the appropriate 

22 committees of Congress a report on any modification of 

23 the procedures submitted under this section. The report 

24 on any such modification shall be so submitted not later 

25 than 60 days before the date on which such modification 

26 goes into effect. 


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1 ‘‘(d) DEFINITIONS.—In this section, the terms ‘ap2 propriate committees of Congress’ and ‘unprivileged 

3 enemy belligerent’ have the meaning given such terms in 

4 section 1405A(e).’’. 

5 SEC. 7. CLARIFICATION OF RIGHT TO PLEAD GUILTY IN 

6 TRIAL OF CAPITAL OFFENSE BY MILITARY 

7 COMMISSION. 

8 (a) CLARIFICATION OF RIGHT.—Section 949m(b)(2) 

9 of title 10, United States Code, is amended— 

10 (1) in subparagraph (C), by inserting before the 

11 semicolon the following: ‘‘, or a guilty plea was ac12 cepted and not withdrawn prior to announcement of 

13 the sentence in accordance with section 949i(b) of 

14 this title’’; and 

15 (2) in subparagraph (D), by inserting ‘‘on the 

16 sentence’’ after ‘‘vote was taken’’. 

17 (b) PRE-TRIAL AGREEMENTS.—Section 949i of such 

18 title is amended by adding at the end the following new 

19 subsection: 

20 ‘‘(c) PRE-TRIAL AGREEMENTS.—(1) A plea of guilty 

21 made by the accused that is accepted by a military judge 

22 under subsection (b) and not withdrawn prior to an23 nouncement of the sentence may form the basis for an 

24 agreement reducing the maximum sentence approved by 

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1 tence of death to a lesser punishment, or that the case 

2 will be referred to a military commission under this chap3 ter without seeking the penalty of death. Such an agree4 ment may provide for terms and conditions in addition to 

5 a guilty plea by the accused in order to be effective. 

6 ‘‘(2) A plea agreement under this subsection may not 

7 provide for a sentence of death imposed by a military 

8 judge alone. A sentence of death may only be imposed by 

9 the votes of all members of a military commission concur10 ring in the sentence of death as provided in section 

11 949m(b)(2)(D) of this title.’’. 

12 SEC. 8. SENSE OF CONGRESS ON TARGETING OF INDIVID13 UALS INVOLVED IN TERRORIST ATTACKS 

14 AGAINST THE UNITED STATES. 

15 (a) FINDINGS.—Congress makes the following find16 ings: 

17 (1) Al Qaeda and affiliated groups planned and 

18 perpetrated the heinous terrorist attacks of Sep19 tember 11, 2001, against our Nation, and have 

20 planned and attempted numerous other terrorist at21 tacks against the United States before and after 

22 September 11, 2001. 

23 (2) Al Qaeda and its affiliated organizations 

24 continue to actively plot attacks against the United 

25 States and its citizens. 


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1 (3) The United States Government has dis2 rupted several attacks against the United States and 

3 its citizens in recent months, including attacks at4 tempting specifically to target civilians. 

5 (4) Under the Authorization for Use of Military 

6 Force (Public Law 107–40), the President is author7 ized to use ‘‘all necessary and appropriate force’’ 

8 against nations, terrorist organizations, and individ9 uals the President determines planned, authorized, 

10 committed, or aided the September 11, 2001, at11 tacks in order to prevent future acts of international 

12 terrorism against the United States. 

13 (5) On May 21, 2009, President Barack Obama 

14 stated ‘‘[n]ow let me be clear: we are indeed at war 

15 with al Qaeda and its affiliates’’. 

16 (6) The United States has a legitimate right to 

17 defend itself against imminent threats to its sov18 ereign territory and its citizens. 

19 (7) The United States Government has stated 

20 its commitment to seek to defend the United States 

21 against al Qaeda and affiliated groups by using all 

22 instruments of power at its disposal, including diplo23 matic, intelligence, military, legal, and economic in24 struments. 


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1 (8) The United States Armed Forces are en2 gaged in active combat operations against al Qaeda 

3 and its affiliates, including through combat oper4 ations in Afghanistan and through lethal action op5 erations against legitimate military objectives. 

6 (9) Decisions to target legitimate military ob7 jectives for lethal action are rightfully made by the 

8 President, as Commander in Chief of the United 

9 States Armed Forces, and military commanders; 

10 (10) The United States Government believes 

11 that al Qaeda and its affiliates continue to actively 

12 plot terrorist attacks, and recruit terrorist operatives 

13 to carry out attacks against the United States. 

14 (b) SENSE OF CONGRESS.—It is the sense of Con15 gress— 

16 (1) that, under the Authorization for Use of 

17 Military Force, the President has the authority to 

18 use lethal force against legitimate military objec19 tives, including nations, organizations, and persons 

20 determined by the President to be members of al 

21 Qaeda and its affiliated terrorist organizations that 

22 plot, facilitate, or undertake terrorist attacks against 

23 the United States and its citizens, and that pose an 

24 imminent threat by actively plotting or participating 

25 in terrorist attacks against the United States or its 


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1 interests that cannot be otherwise obviated due to a 

2 host nation’s refusal or inability to arrest, detain, or 

3 prosecute the individuals or organizations; 

4 (2) that the President, as Commander in Chief 

5 of the United States Armed Forces, has the author6 ity and responsibility, along with his advisors and 

7 commanders of the United States Armed Forces, to 

8 identify legitimate military objectives and to deter9 mine the most appropriate and efficacious cir10 cumstances and tactical means for carrying out le11 thal action against legitimate military objectives; and 

12 (3) to reaffirm its commitment to ensuring that 

13 lethal action is undertaken in accordance with 

14 United States obligations under international law, 

15 including its obligations to uphold the principles of 

16 military necessity, discrimination, and proportion17 ality, and to conduct timely, rigorous, and sustained 

18 oversight over lethal action policies, decisions, and 

19 operations. 

20 SEC. 9. SENSE OF CONGRESS ON JUSTICE FOR VICTIMS 

21 AND FAMILIES OF THOSE KILLED OR IN22 JURED IN AL QAEDA ATTACKS ON THE 

23 UNITED STATES. 

24 (a) FINDINGS.—Congress makes the following find25 ings: 


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1 (1) Al Qaeda planned and carried out attacks 

2 against United States embassies in Nairobi, Kenya, 

3 and Dar es Salaam, Tanzania, on August 7, 1998, 

4 resulting in 224 deaths, including 12 United States 

5 citizens and 3 members of the United States Armed 

6 Forces, and injuries to approximately 4,085 people. 

7 (2) Al Qaeda planned and carried out the 

8 bombing of the U.S.S. Cole in Aden, Yemen, on Oc9 tober 12, 2000, resulting in the deaths of 17 Amer10 ican sailors and serious injuries to 39 other mem11 bers of the crew of the U.S.S. Cole. The attack dis12 abled an American warship. 

13 (3) Al Qaeda and its affiliated groups planned 

14 and carried out the attacks against the United 

15 States in New York, Virginia, and Pennsylvania on 

16 September 11, 2001, resulting in the deaths of near17 ly 3,000 men, women, and children. The over18 whelming majority of casualties were civilians, in19 cluding nationals of over 70 countries. Among the 

20 targets attacked was the Pentagon, the official head21 quarters of the United States Armed Forces, where 

22 184 people were killed. 

23 (4) Under the Authorization for Use of Military 

24 Force (Public Law 107–40), the President is author25 ized to use ‘‘all necessary and appropriate force’’ 


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1 against those nations, terrorist organizations, and 

2 persons the President determines planned, author3 ized, committed, or aided the September 11, 2001, 

4 attacks in order to prevent future acts of inter5 national terrorism against the United States. 

6 (5) Al Qaeda and its affiliated groups continue 

7 to actively plot attacks against the United States 

8 and its citizens, including— 

9 (A) the attempted bombing on December 

10 25, 2009, of a civilian airliner carrying nearly 

11 300 innocent people near Detroit, Michigan; 

12 (B) the attempted bombing of Times 

13 Square in New York, New York, on May 3, 

14 2010; and 

15 (C) an attempted parcel bomb attack di16 rected to addresses in Chicago, Illinois, that 

17 was disrupted outside the United States on Oc18 tober 29, 2010. 

19 (6) The criminal trial of Ahmed Ghailani, who 

20 was captured on July 25, 2004, for his participation 

21 in the al Qaeda bombing of the United States em22 bassies in East Africa resulted in a conviction on 

23 November 17, 2010, on a single count of conspiracy 

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1 cluding all counts of murder of United States citi2 zens. 

3 (7) On May 21, 2009, President Barack Obama 

4 stated ‘‘[n]ow let me be clear: we are indeed at war 

5 with al Qaeda and its affiliates’’. 

6 (8) The 10-year anniversary of the bombing of 

7 the U.S.S. Cole was marked on October 12, 2010, 

8 and an alleged key participant in the bombing, Abd 

9 al-Rahim al-Nashiri, who was first charged in prepa10 ration for trial by military commission in June, 

11 2008, remains in detention without charges at 

12 United States Naval Station Guantanamo Bay, 

13 Cuba. 

14 (9) The 10-year anniversary of the al Qaeda at15 tacks on the United States on September 11, 2001, 

16 occurs this year. 

17 (10) The alleged mastermind of those attacks 

18 on the United States, Khalid Sheikh Mohammed, 

19 was first charged in preparation for trial by military 

20 commission on April 15, 2008, and charges were 

21 lawfully referred to a military commission on May 9, 

22 2008. 

23 (11) According to media reports at the time, 

24 Khalid Sheikh Mohammed and his co-conspirators 

25 were prepared to plead guilty to their participation 


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1 in those attacks on the United States before a mili2 tary commission. 

3 (12) Khalid Sheikh Mohammed has made state4 ments, including those during his Combatant Status 

5 Review Tribunal held at United States Naval Sta6 tion Guantanamo Bay, that he is responsible for 

7 planning those attacks on the United States. 

8 (13) One of the first acts of the Obama Admin9 istration upon taking office was to suspend all mili10 tary commissions on January 21, 2009. 

11 (14) The Attorney General announced on No12 vember 13, 2009, that the cases of five detainees 

13 held at United States Naval Station Guantanamo 

14 Bay should be prosecuted by military commission, 

15 including the alleged bomber of the U.S.S. Cole, but 

16 all these cases have not gone forward to trial. 

17 (15) Congress has twice enacted a statute on 

18 military commissions, once at the request of the 

19 George W. Bush Administration in 2006, and a sec20 ond time, with significant reforms and changes with 

21 the assistance of the Department of Justice and the 

22 Department of Defense, at the request of the Obama 

23 Administration in 2009. 

24 (b) SENSE OF CONGRESS.—It is the sense of Con25 gress that— 


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1 (1) the military commissions system enacted by 

2 Congress and approved by the President is fully con3 sistent with the rule of law and the international ob4 ligations of the United States, including the Geneva 

5 Conventions; 

6 (2) the attacks on the United States by al 

7 Qaeda and its affiliated groups to which the Author8 ization for Use of Military Force applies are viola9 tions of the law of war for which trial by military 

10 commission has traditionally been used to mete out 

11 justice during the history of the United States; and 

12 (3) members of al Qaeda and its affiliated 

13 groups who have long been detained under the law 

14 of war and who are, in the opinion of the cognizant 

15 officials, responsible for attacks against the United 

16 States, should be tried without further delay by a 

17 military commission held at United States Naval 

18 Station, Guantanamo Bay, Cuba. 

Æ 


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