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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 553 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 553

      To provide for the review of challenges to the detention of 
        unprivileged enemy belligerents and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 10, 2011

Mr. Graham (for himself, Mr. Chambliss, Mr. McCain, Ms. Ayotte, and Mr. 
Burr) introduced the following bill; which was read twice and referred 
                   to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
      To provide for the review of challenges to the detention of 
        unprivileged enemy belligerents 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.

    This Act may be cited as the ``Detention of Unprivileged Enemy 
Belligerents Act''.

SEC. 2. STATEMENT OF AUTHORITY.

    (a) In General.--Congress reaffirms that the United States is in an 
armed conflict with al Qaeda, the Taliban, and associated forces and 
that those entities continue to pose a threat to the United States and 
its citizens, both domestically and abroad.
    (b) Authority.--Congress reaffirms that the President is authorized 
to detain unprivileged enemy belligerents in connection with the 
continuing armed conflict with al Qaeda, the Taliban, and associated 
forces, regardless of the place of capture, until the termination of 
hostilities.
    (c) Rule of Construction.--The authority under section 2256 of 
title 28, United States Code (as amended by section 3(a)), shall not be 
construed to alter or limit the authority of the President under the 
Constitution of the United States to detain belligerents in the 
continuing armed conflict with al Qaeda, the Taliban, and associated 
forces, or in any other armed conflict.

SEC. 3. HABEAS CORPUS REVIEW FOR CERTAIN UNPRIVILEGED ENEMY 
              BELLIGERENTS.

    (a) Habeas Corpus Review.--Chapter 153 of title 28, United States 
Code, is amended by striking section 2256, as added by section 250 of 
the Act entitled ``An Act to establish a uniform Law on the Subject of 
Bankruptcies'', approved November 6, 1978 (Public Law 95-598; 92 Stat. 
2672), and inserting the following:
``Sec. 2256. Habeas corpus review for certain unprivileged enemy 
              belligerents
    ``(a) Definitions.--In this section--
            ``(1) the term `attorney for the Government' means the 
        attorney representing the United States in a habeas corpus 
        proceeding under this section;
            ``(2) the term `coalition partner', with respect to 
        hostilities engaged in by the United States, means any State or 
        armed force directly engaged along with the United States in 
        such hostilities or providing direct operational support to the 
        United States in connection with such hostilities;
            ``(3) the term `covered individual' means an individual 
        who--
                    ``(A)(i) is held by the United States at Naval 
                Station, Guantanamo Bay, Cuba; or
                    ``(ii) the United States otherwise holds or seeks 
                to hold as an unprivileged enemy belligerent; and
                    ``(B) is subject to the habeas corpus jurisdiction 
                of the Federal courts;
            ``(4) the term `hostilities' means any conflict subject to 
        the laws of war;
            ``(5) the term `privileged belligerent' means an individual 
        belonging to one of the eight categories enumerated in Article 
        4 of the Geneva Convention Relative to the Treatment of 
        Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); 
        and
            ``(6) the term `unprivileged enemy belligerent' means an 
        individual (other than a privileged belligerent) who--
                    ``(A) has engaged in hostilities against the United 
                States or its coalition partners;
                    ``(B) has purposefully and materially supported 
                hostilities against the United States or its coalition 
                partners; or
                    ``(C) was a member of, part of, or operated in a 
                clandestine, covert, or military capacity on behalf of 
                the Taliban, al Qaeda, or associated forces.
    ``(b) Jurisdiction and Venue.--
            ``(1) In general.--The United States District Court for the 
        District of Columbia (in this section referred to as the 
        `District Court') shall have exclusive jurisdiction of, and 
        shall be the exclusive venue for consideration of, all 
        applications for habeas corpus by or on behalf of any covered 
        individual that is pending on or filed on or after the date of 
        enactment of the Detention of Unprivileged Enemy Belligerents 
        Act.
            ``(2) Scope of jurisdiction.--An application for habeas 
        corpus filed under paragraph (1) by or on behalf of a covered 
        individual--
                    ``(A) may challenge the legality of the continued 
                detention of the covered individual; and
                    ``(B) may not include any other claim relating to 
                the detention, transfer, treatment, trial, or 
                conditions of confinement of the covered individual or 
                any other action against the United States or its 
                agents.
            ``(3) Consolidated motions practice.--All applications for 
        a writ of habeas corpus by or on behalf of a covered individual 
        brought after the date of enactment of the Detention of 
        Unprivileged Enemy Belligerents Act shall be consolidated 
        before the Chief Judge of the District Court or a designee of 
        the Chief Judge for consolidated proceedings and determinations 
        on common questions of fact or law, including questions 
        concerning the procedures to be conducted on the applications.
            ``(4) Transfer.--Consistent with section 1404(a) of this 
        title, any court of the United States shall transfer a case 
        within the exclusive jurisdiction of the District Court under 
        this section.
    ``(c) Notice of Organizations Considered Associated Forces.--
            ``(1) In general.--In a proceeding instituted by an 
        application for habeas corpus by or on behalf of a covered 
        individual under subsection (b)(1), the Government may provide 
        notice to the District Court that the Government considers a 
        particular organization or organizations to be among the 
        associated forces of al Qaeda or the Taliban.
            ``(2) Deference to the executive.--In determining whether a 
        particular organization is among the associated forces of al 
        Qaeda or the Taliban, the District Court shall give utmost 
        deference to the inclusion of the organization in a notice 
        under this subsection.
    ``(d) Procedures.--
            ``(1) Burden of proof.--
                    ``(A) In general.--In a proceeding instituted by an 
                application for habeas corpus by or on behalf of a 
                covered individual under subsection (b)(1), the burden 
                shall be on the Government to submit a return in the 
                form of a written declaration describing the factual 
                basis upon which the Government is detaining the 
                covered individual.
                    ``(B) Burden of proof.--The burden shall be on the 
                Government to prove that there is probable cause to 
                believe that the covered individual is an unprivileged 
                enemy belligerent.
                    ``(C) Rule of construction.--The standard and 
                burden under this paragraph shall not be construed to 
                impose or imply the existence of a standard or burden 
                on the detention power of the President for any other 
                purpose or in any other proceeding.
                    ``(D) Presumptions related to membership.--
                            ``(i) Presumption related to attendance at 
                        a training camp.--Upon a determination that the 
                        Government has proved that there is probable 
                        cause to believe that a covered individual 
                        received and executed orders from members of 
                        the Taliban, al Qaeda, or associated forces at 
                        a military-style training camp, or attended a 
                        military-style training camp or guesthouse of 
                        the Taliban, al Qaeda, or associated forces, 
                        there shall be a rebuttable presumption that 
                        the covered individual is an unprivileged enemy 
                        belligerent.
                            ``(ii) Presumption against withdrawal of 
                        membership.--
                                    ``(I) In general.--Upon a 
                                determination that the Government has 
                                proved that there is probable cause to 
                                believe that a covered individual was 
                                an unprivileged enemy belligerent at a 
                                particular time prior to the 
                                individual's capture, there shall be a 
                                rebuttable presumption that the covered 
                                individual remained an unprivileged 
                                enemy belligerent at the time of such 
                                capture.
                                    ``(II) Rebuttal of presumption 
                                related to membership.--A covered 
                                individual may rebut the presumption 
                                under subclause (I) only by showing 
                                that the covered individual took 
                                affirmative action to withdraw from the 
                                organization in question prior to the 
                                individual's capture.
                                    ``(III) Limitation.--A covered 
                                individual who was an unprivileged 
                                enemy belligerent at the time of the 
                                individual's capture shall remain 
                                subject to detention under this 
                                chapter, without regard to any argument 
                                or evidence that the covered individual 
                                sought to withdraw from the 
                                organization in question after such 
                                capture.
                    ``(E) Order.--
                            ``(i) Denial of application.--If the 
                        District Court finds that the Government has 
                        met its burden of proof under subparagraph (B), 
                        then the District Court shall deny the 
                        application for habeas corpus.
                            ``(ii) Grant of application.--If the 
                        District Court finds that the Government has 
                        failed to prove that there is probable cause to 
                        believe that the covered individual is an 
                        unprivileged enemy belligerent, then the 
                        District Court shall grant the application for 
                        habeas corpus and order the release of the 
                        covered individual.
            ``(2) Discovery.--
                    ``(A) Scope of discovery.--
                            ``(i) In general.--Subject to subparagraph 
                        (B), a covered individual may request from the 
                        Government as the discovery relating to a 
                        habeas corpus proceeding under this section, 
                        and if requested by a covered individual, the 
                        Government shall provide--
                                    ``(I) any documents or objects in 
                                the possession of the Government that 
                                the Government relies upon to justify 
                                detention;
                                    ``(II) any reasonably available 
                                evidence in the possession of the 
                                Government that tends materially to 
                                undermine the information presented to 
                                support the justification of the 
                                Government for detaining the covered 
                                individual; and
                                    ``(III) all statements, whether 
                                oral, written, or recorded, made or 
                                adopted by the covered individual that 
                                are known to the attorney for the 
                                Government and directly related to the 
                                information in the return submitted by 
                                the Government.
                            ``(ii) Reasonably available evidence 
                        defined.--In this subparagraph, the term 
                        `reasonably available evidence' means--
                                    ``(I) evidence contained in any 
                                information reviewed by Government 
                                attorneys preparing factual returns for 
                                covered individuals; and
                                    ``(II) evidence discovered by 
                                Government attorneys while litigating 
                                habeas corpus petitions filed by 
                                covered individuals.
                    ``(B) Protection of national security 
                information.--
                            ``(i) Generally.--Classified information 
                        shall be protected and is privileged from 
                        disclosure in habeas corpus proceedings 
                        relating to a covered individual. The rule 
                        under this subparagraph applies to all stages 
                        of any proceeding relating to an application 
                        for habeas corpus filed under subsection 
                        (b)(1).
                            ``(ii) Substitute.--If any information 
                        described in subparagraph (A) is classified, 
                        the attorney for the Government shall either--
                                    ``(I) provide the covered 
                                individual with an adequate substitute, 
                                to the extent practicable and 
                                consistent with national security; or
                                    ``(II) make the classified 
                                information available to properly 
                                cleared counsel for the covered 
                                individual.
                            ``(iii) Nondisclosure of classified 
                        information.--Under no circumstances shall the 
                        Government be required to provide a covered 
                        individual, or any other person detained as an 
                        unprivileged enemy belligerent, with access to 
                        classified information as part of a habeas 
                        corpus proceeding under this section.
                            ``(iv) Sources and methods.--The Government 
                        shall not be required to disclose the 
                        classified sources, methods, or activities by 
                        which the Government acquired information 
                        described in subparagraph (A). The District 
                        Court may require the Government to present, to 
                        the extent practicable and consistent with 
                        national security, an unclassified summary of 
                        the sources, methods, or activities by which 
                        the Government acquired such information.
                            ``(v) Order.--Upon motion of the 
                        Government, the District Court shall issue an 
                        order to protect against the disclosure of any 
                        classified information.
                            ``(vi) Ex parte and in camera review.--If 
                        the Government seeks to protect classified 
                        information from disclosure pursuant to the 
                        protections of this subparagraph, the court 
                        shall review the Government's submission ex 
                        parte and in camera.
                            ``(vii) 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 pursuant to 
                        section 7 of the Classified Information 
                        Procedures Act (18 U.S.C. App.).
            ``(3) Evidence.--
                    ``(A) Considerations.--
                            ``(i) In general.--The District Court shall 
                        consider the totality of the circumstances and 
                        the evidence as a whole in determining whether 
                        the Government has carried its burden as 
                        required by this subsection.
                            ``(ii) Analysis.--In considering whether 
                        the Government has carried its burden as 
                        required by this subsection, the District Court 
                        shall not require that each piece of the 
                        Government's evidence bear weight without 
                        regard to any other evidence in the case.
                    ``(B) Rebuttable presumption of authenticity.--Any 
                evidence relied upon by the Government in its 
                declaration shall be subject to a rebuttable 
                presumption that such evidence is authentic.
                    ``(C) Evidentiary hearing.--
                            ``(i) In general.--To the maximum extent 
                        possible, habeas corpus proceedings under this 
                        section shall be decided on the basis of a 
                        written return and a written declaration. The 
                        District Court may grant an evidentiary hearing 
                        only after considering whether such a hearing 
                        would enable the covered individual to prove 
                        that the application's factual allegations, if 
                        true, would entitle the covered individual to 
                        relief. If the record before the District Court 
                        refutes the factual allegations in the 
                        application, the District Court is not required 
                        to hold a hearing.
                            ``(ii) Admissibility.--The rules concerning 
                        the admissibility of evidence in Federal civil 
                        or criminal trials shall not apply to the 
                        presentation and consideration of information 
                        at any evidentiary hearing under this section. 
                        The District Court may consider any probative 
                        evidence, including hearsay from military, 
                        intelligence, and law enforcement sources. The 
                        District Court may consider the reliability of 
                        hearsay evidence, as determined by the totality 
                        of the circumstances, for the purposes of 
                        determining its probative weight, but not its 
                        admissibility.
                            ``(iii) Witness production.--The District 
                        Court may grant a motion for oral testimony 
                        relating to an evidentiary hearing pursuant to 
                        this paragraph only if the District Court finds 
                        by clear and convincing evidence that military 
                        and intelligence operations would not be harmed 
                        by the production of the witness and oral 
                        testimony would be likely to provide a material 
                        benefit to the resolution by the District Court 
                        of the disputed matter.
            ``(4) Voluntariness of statements.--
                    ``(A) Exclusion of statements obtained by torture 
                or cruel, inhuman, or degrading treatment.--No 
                statement obtained by the use of torture or by cruel, 
                inhuman, or degrading treatment (as defined by section 
                1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 
                2000dd)), whether or not under color of law, shall be 
                admissible in a proceeding to consider an application 
                for habeas corpus by or on behalf of any covered 
                individual under this section, except against a person 
                accused of torture or such treatment as evidence that 
                the statement was made.
                    ``(B) In general.--A statement of the covered 
                individual applying for habeas corpus may be admitted 
                into evidence in a proceeding considering the 
                application for habeas corpus only upon a finding 
                that--
                            ``(i) the statement was made incident to 
                        lawful conduct during military operations at 
                        the point of capture or during closely related 
                        active combat engagement, and the interests of 
                        justice would best be served by admission of 
                        the statement into evidence;
                            ``(ii) the statement was made incident to 
                        lawful interrogation conducted by authorized 
                        personnel of--
                                    ``(I) a Federal, State, or local 
                                law enforcement agency; or
                                    ``(II) a department or agency of 
                                the United States;
                            ``(iii) the statement was made voluntarily 
                        and incident to lawful interrogation conducted 
                        by authorized personnel of a foreign 
                        government, entity, or law enforcement or 
                        intelligence agency; or
                            ``(iv) the statement was voluntarily made.
                    ``(C) Determination of voluntariness.--In 
                determining whether a statement was voluntarily made, 
                the District Court shall consider the totality of the 
                circumstances, including, as appropriate, the 
                following:
                            ``(i) The details of the making of the 
                        statement, accounting for the circumstances of 
                        the conduct of military and intelligence 
                        operations during or in relation to 
                        hostilities.
                            ``(ii) The relevant characteristics of the 
                        applicant, such as military training, age, and 
                        education level.
                            ``(iii) Any lapse of time, change of 
                        location, or change in personnel questioning 
                        the applicant between the statement sought to 
                        be admitted and any prior questioning of the 
                        applicant.
                    ``(D) Statements before combat status review 
                tribunal or administrative review board.--There shall 
                be a rebuttable presumption in favor of the 
                voluntariness of statements against interest made 
                before a Combat Status Review Tribunal, Administrative 
                Review Board, or comparable review board, or as a 
                result of treatment in compliance with the Army Field 
                Manual.
                    ``(E) Reliability.--There shall be a rebuttable 
                presumption in favor of the reliability of statements 
                against interest made during or as a result of 
                interrogation conducted pursuant to the Army Field 
                Manual, or made before a Combat Status Review Tribunal, 
                Administrative Review Board, or comparable review 
                board.
            ``(5) Attorneys.--
                    ``(A) In general.--For the purposes of habeas 
                corpus proceedings under this section only, a covered 
                individual shall be represented by an attorney if the 
                attorney--
                            ``(i) is retained by or on behalf of the 
                        covered individual or appointed by the District 
                        Court solely to provide assistance during the 
                        course of such proceedings;
                            ``(ii) has been determined to be eligible 
                        for access to classified information that is 
                        classified at the level Secret or higher, as 
                        required, and has signed the appropriate 
                        nondisclosure agreement for access to such 
                        classified information; and
                            ``(iii) has signed a written agreement to 
                        comply with all applicable regulations or 
                        instructions for attorneys in habeas corpus 
                        proceedings before the District Court, 
                        including any rules of court for conduct during 
                        the proceedings.
                    ``(B) Classified information.--Any attorney for a 
                covered individual--
                            ``(i) shall protect any classified 
                        information received by or made known to such 
                        attorney during the course of representation of 
                        the covered individual in accordance with all 
                        applicable law governing the protection of 
                        classified information; and
                            ``(ii) may not divulge such information to 
                        any person not authorized to receive such 
                        information, including a covered individual.
            ``(6) Video hearings.--The District Court shall not require 
        the physical presence of a covered individual for the purpose 
        of any proceeding under this section, including any oral 
        testimony or evidentiary hearing, although the District Court 
        in its discretion may permit a detainee to participate in 
        certain proceedings through available technological means, if 
        appropriate and consistent with the procedures for the 
        protection of classified information and national security 
        under this section and with the conduct of military and 
        intelligence operations.
    ``(e) Exhaustion of Military Commission Procedures and Stay Pending 
Executive Transfer Efforts.--
            ``(1) Stay of applications pending military commissions.--
        Any application for habeas corpus that is pending on or after 
        the date of enactment of the Detention of Unprivileged Enemy 
        Belligerents Act by or on behalf of a covered individual 
        against whom charges have been sworn under chapter 47A of title 
        10 shall be stayed pending resolution of the proceedings under 
        chapter 47A of title 10.
            ``(2) Habeas procedures for persons convicted by final 
        judgment of a military commission.--
                    ``(A) In general.--Subject to the restrictions 
                under sections 950g and 950j of title 10, an 
                application for a writ of habeas corpus by or on behalf 
                of a covered individual in custody pursuant to a final 
                judgment of a military commission shall not be 
                considered until the applicant has exhausted the 
                remedies available under chapter 47A of title 10.
                    ``(B) Remedies not exhausted.--A covered individual 
                shall not be determined to have exhausted the remedies 
                available under chapter 47A of title 10, within the 
                meaning of this section, if the covered individual has 
                the right under chapter 47A of title 10 to raise, by 
                any available procedure, the question presented in an 
                application for a writ of habeas corpus.
                    ``(C) Limitations.--An application for a writ of 
                habeas corpus by or on behalf of a covered individual 
                in custody pursuant to the judgment of a military 
                commission under chapter 47A of title 10 shall not be 
                granted with respect to any claim that was adjudicated 
                on the merits in military commission proceedings under 
                chapter 47A of title 10 or that could have been raised 
                before the military commission, except where the 
                commission was without jurisdiction to impose such a 
                judgment.
                    ``(D) Scope of review.--Subject to the restrictions 
                under subparagraph (C), in reviewing any other claim on 
                an application for a writ of habeas corpus on behalf of 
                a covered individual in custody pursuant to the 
                sentence of a military commission under chapter 47A of 
                title 10, the District Court shall apply the same 
                deference applicable to a court reviewing an 
                application on behalf of a person in custody pursuant 
                to the sentence of a court martial.
            ``(3) Stay pending executive transfer efforts.--Any 
        application for habeas corpus that is pending on or after the 
        date of enactment of the Detention of Unprivileged Enemy 
        Belligerents Act by or on behalf of a covered individual who 
        has been designated for transfer or release to another country, 
        shall, upon a representation by the attorney for the Government 
        that good faith efforts are being made to facilitate such 
        transfer or release by the Executive branch, be stayed pending 
        resolution of such transfer or release efforts.
    ``(f) Limits on Second or Successive Applications.--
            ``(1) In general.--A claim presented in a second or 
        successive application for habeas corpus under this section 
        that was presented in a prior application shall be dismissed.
            ``(2) Claims not included in prior application.--A claim 
        presented in a second or successive application for habeas 
        corpus under this section that was not presented in a prior 
        application shall be dismissed unless--
                    ``(A) the factual predicate for the claim could not 
                have been discovered previously through the exercise of 
                due diligence; and
                    ``(B) the facts underlying the claim, if proven and 
                viewed in light of the evidence as a whole, would be 
                sufficient to establish by clear and convincing 
                evidence that no reasonable factfinder would have found 
                that the covered individual was lawfully detained.
            ``(3) Procedures for second and successive applications.--
                    ``(A) In general.--The District Court may only 
                consider a second or successive application for habeas 
                corpus under this section if the court determines that 
                the covered individual makes a prima facie showing that 
                the application satisfies the requirements under 
                paragraph (2) for consideration of a second or 
                successive application for habeas corpus.
                    ``(B) Appeal.--The Government may take an 
                interlocutory appeal from a decision by the District 
                Court to grant consideration of a second or successive 
                habeas corpus application under this paragraph to the 
                United States Court of Appeals for the District of 
                Columbia Circuit. The District Court shall stay 
                proceedings pending the decision on an interlocutory 
                appeal.
    ``(g) Release.--
            ``(1) Covered individuals ordered released.--
                    ``(A) In general.--No court shall order the release 
                of a covered individual into the United States, its 
                territories, or possessions.
                    ``(B) Visas and immigration.--The Secretary of 
                State shall not issue any visa and the Secretary of 
                Homeland Security shall not admit or provide any type 
                of immigration status to a covered individual described 
                in subparagraph (A) that may permit the covered 
                individual to enter, be admitted, or otherwise be at 
                liberty in the United States.
                    ``(C) Parole.--Neither the Attorney General or the 
                Secretary of Homeland Security may parole into the 
                United States any alien who, as of January 1, 2009, was 
                being detained by the Department of Defense at 
                Guantanamo Bay Naval Base.
            ``(2) Transfer.--
                    ``(A) In general.--If the District Court grants an 
                application for a writ of habeas corpus and orders the 
                release of a covered individual, the covered individual 
                shall be released into the custody of the Department of 
                Homeland Security for the purpose of transferring the 
                individual to the country of citizenship of the 
                individual or to another country. If custody by the 
                Department of Homeland Security is not practicable, or 
                the President or a designee of the President determines 
                that alternative custody pending release is more 
                appropriate, the covered individual may be released 
                into the custody of an alternative department or agency 
                of the Federal Government selected by the President or 
                such designee.
                    ``(B) Transfer.--An individual in the custody of 
                the Department of Homeland Security or an alternative 
                department or agency pursuant to subparagraph (A) shall 
                be housed separately from aliens detained as 
                unprivileged enemy belligerents by the Department of 
                Defense and in a manner consistent with the safety and 
                security of United States personnel and citizens. A 
                transfer made pursuant to subparagraph (A) shall be 
                effected as expeditiously as possible and in a manner 
                that is consistent with the policy set out in section 
                2242 of the Foreign Relations Authorization Act, Fiscal 
                Years 1998 and 1999 (subdivision B of division G of 
                Public Law 105-277; 8 U.S.C. 1231 note), and with the 
                national security interests of the United States.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 153 of such title is amended by adding at the end the following 
new item:

``2256. Habeas corpus review for certain unprivileged enemy 
                            belligerents.''.

SEC. 4. LIMITATION ON HABEAS CORPUS REVIEW FOR DETAINED ALIENS AWAITING 
              STATUS DETERMINATION UNDER LAW OF WAR.

    Section 2241(e) of title 28, United States Code, is amended by 
adding at the end the following new paragraph:
    ``(3) No court, justice, or judge shall have jurisdiction to hear 
or consider an application for a writ of habeas corpus filed by or on 
behalf of an alien detained by the United States who is awaiting a 
status determination under the law of war, except in the case of undue 
delay.''.
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