II 

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. 

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 ‘‘Detention of 

5 Unprivileged Enemy Belligerents Act’’. 

6 SEC. 2. STATEMENT OF AUTHORITY. 

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

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

9 Taliban, and associated forces and that those entities conVerDate Mar 15 2010 02:15 Mar 12, 2011 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S553.IS S553

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1 tinue to pose a threat to the United States and its citizens, 

2 both domestically and abroad. 

3 (b) AUTHORITY.—Congress reaffirms that the Presi4 dent is authorized to detain unprivileged enemy belliger5 ents in connection with the continuing armed conflict with 

6 al Qaeda, the Taliban, and associated forces, regardless 

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

8 (c) RULE OF CONSTRUCTION.—The authority under 

9 section 2256 of title 28, United States Code (as amended 

10 by section 3(a)), shall not be construed to alter or limit 

11 the authority of the President under the Constitution of 

12 the United States to detain belligerents in the continuing 

13 armed conflict with al Qaeda, the Taliban, and associated 

14 forces, or in any other armed conflict. 

15 SEC. 3. HABEAS CORPUS REVIEW FOR CERTAIN 

16 UNPRIVILEGED ENEMY BELLIGERENTS. 

17 (a) HABEAS CORPUS REVIEW.—Chapter 153 of title 

18 28, United States Code, is amended by striking section 

19 2256, as added by section 250 of the Act entitled ‘‘An 

20 Act to establish a uniform Law on the Subject of Bank21 ruptcies’’, approved November 6, 1978 (Public Law 95– 

22 598; 92 Stat. 2672), and inserting the following: 

23 ‘‘§ 2256. Habeas corpus review for certain 

24 unprivileged enemy belligerents 

25 ‘‘(a) DEFINITIONS.—In this section— 


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1 ‘‘(1) the term ‘attorney for the Government’ 

2 means the attorney representing the United States 

3 in a habeas corpus proceeding under this section; 

4 ‘‘(2) the term ‘coalition partner’, with respect 

5 to hostilities engaged in by the United States, means 

6 any State or armed force directly engaged along 

7 with the United States in such hostilities or pro8 viding direct operational support to the United 

9 States in connection with such hostilities; 

10 ‘‘(3) the term ‘covered individual’ means an in11 dividual who— 

12 ‘‘(A)(i) is held by the United States at 

13 Naval Station, Guantanamo Bay, Cuba; or 

14 ‘‘(ii) the United States otherwise holds or 

15 seeks to hold as an unprivileged enemy bellig16 erent; and 

17 ‘‘(B) is subject to the habeas corpus juris18 diction of the Federal courts; 

19 ‘‘(4) the term ‘hostilities’ means any conflict 

20 subject to the laws of war; 

21 ‘‘(5) the term ‘privileged belligerent’ means an 

22 individual belonging to one of the eight categories 

23 enumerated in Article 4 of the Geneva Convention 

24 Relative to the Treatment of Prisoners of War, done 

25 at Geneva August 12, 1949 (6 UST 3316); and 


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1 ‘‘(6) the term ‘unprivileged enemy belligerent’ 

2 means an individual (other than a privileged bellig3 erent) who— 

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

5 United States or its coalition partners; 

6 ‘‘(B) has purposefully and materially sup7 ported hostilities against the United States or 

8 its coalition partners; or 

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

10 in a clandestine, covert, or military capacity on 

11 behalf of the Taliban, al Qaeda, or associated 

12 forces. 

13 ‘‘(b) JURISDICTION AND VENUE.— 

14 ‘‘(1) IN GENERAL.—The United States District 

15 Court for the District of Columbia (in this section 

16 referred to as the ‘District Court’) shall have exclu17 sive jurisdiction of, and shall be the exclusive venue 

18 for consideration of, all applications for habeas cor19 pus by or on behalf of any covered individual that 

20 is pending on or filed on or after the date of enact21 ment of the Detention of Unprivileged Enemy Bel22 ligerents Act. 

23 ‘‘(2) SCOPE OF JURISDICTION.—An application 

24 for habeas corpus filed under paragraph (1) by or on 

25 behalf of a covered individual— 


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1 ‘‘(A) may challenge the legality of the con2 tinued detention of the covered individual; and 

3 ‘‘(B) may not include any other claim re4 lating to the detention, transfer, treatment, 

5 trial, or conditions of confinement of the cov6 ered individual or any other action against the 

7 United States or its agents. 

8 ‘‘(3) CONSOLIDATED MOTIONS PRACTICE.—All 

9 applications for a writ of habeas corpus by or on be10 half of a covered individual brought after the date 

11 of enactment of the Detention of Unprivileged 

12 Enemy Belligerents Act shall be consolidated before 

13 the Chief Judge of the District Court or a designee 

14 of the Chief Judge for consolidated proceedings and 

15 determinations on common questions of fact or law, 

16 including questions concerning the procedures to be 

17 conducted on the applications. 

18 ‘‘(4) TRANSFER.—Consistent with section 

19 1404(a) of this title, any court of the United States 

20 shall transfer a case within the exclusive jurisdiction 

21 of the District Court under this section. 

22 ‘‘(c) NOTICE OF ORGANIZATIONS CONSIDERED ASSO23 CIATED FORCES.— 

24 ‘‘(1) IN GENERAL.—In a proceeding instituted 

25 by an application for habeas corpus by or on behalf 


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1 of a covered individual under subsection (b)(1), the 

2 Government may provide notice to the District Court 

3 that the Government considers a particular organi4 zation or organizations to be among the associated 

5 forces of al Qaeda or the Taliban. 

6 ‘‘(2) DEFERENCE TO THE EXECUTIVE.—In de7 termining whether a particular organization is 

8 among the associated forces of al Qaeda or the 

9 Taliban, the District Court shall give utmost def10 erence to the inclusion of the organization in a no11 tice under this subsection. 

12 ‘‘(d) PROCEDURES.— 

13 ‘‘(1) BURDEN OF PROOF.— 

14 ‘‘(A) IN GENERAL.—In a proceeding insti15 tuted by an application for habeas corpus by or 

16 on behalf of a covered individual under sub17 section (b)(1), the burden shall be on the Gov18 ernment to submit a return in the form of a 

19 written declaration describing the factual basis 

20 upon which the Government is detaining the 

21 covered individual. 

22 ‘‘(B) BURDEN OF PROOF.—The burden 

23 shall be on the Government to prove that there 

24 is probable cause to believe that the covered in25 dividual is an unprivileged enemy belligerent. 


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1 ‘‘(C) RULE OF CONSTRUCTION.—The 

2 standard and burden under this paragraph shall 

3 not be construed to impose or imply the exist4 ence of a standard or burden on the detention 

5 power of the President for any other purpose or 

6 in any other proceeding. 

7 ‘‘(D) PRESUMPTIONS RELATED TO MEM8 BERSHIP.— 

9 ‘‘(i) PRESUMPTION RELATED TO AT10 TENDANCE AT A TRAINING CAMP.—Upon a 

11 determination that the Government has 

12 proved that there is probable cause to be13 lieve that a covered individual received and 

14 executed orders from members of the 

15 Taliban, al Qaeda, or associated forces at 

16 a military-style training camp, or attended 

17 a military-style training camp or guest18 house of the Taliban, al Qaeda, or associ19 ated forces, there shall be a rebuttable pre20 sumption that the covered individual is an 

21 unprivileged enemy belligerent. 

22 ‘‘(ii) PRESUMPTION AGAINST WITH23 DRAWAL OF MEMBERSHIP.— 

24 ‘‘(I) IN GENERAL.—Upon a de25 termination that the Government has 


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1 proved that there is probable cause to 

2 believe that a covered individual was 

3 an unprivileged enemy belligerent at a 

4 particular time prior to the individ5 ual’s capture, there shall be a rebutta6 ble presumption that the covered indi7 vidual remained an unprivileged 

8 enemy belligerent at the time of such 

9 capture. 

10 ‘‘(II) REBUTTAL OF PRESUMP11 TION RELATED TO MEMBERSHIP.—A 

12 covered individual may rebut the pre13 sumption under subclause (I) only by 

14 showing that the covered individual 

15 took affirmative action to withdraw 

16 from the organization in question 

17 prior to the individual’s capture. 

18 ‘‘(III) LIMITATION.—A covered 

19 individual who was an unprivileged 

20 enemy belligerent at the time of the 

21 individual’s capture shall remain sub22 ject to detention under this chapter, 

23 without regard to any argument or 

24 evidence that the covered individual 


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1 sought to withdraw from the organiza2 tion in question after such capture. 

3 ‘‘(E) ORDER.— 

4 ‘‘(i) DENIAL OF APPLICATION.—If the 

5 District Court finds that the Government 

6 has met its burden of proof under subpara7 graph (B), then the District Court shall 

8 deny the application for habeas corpus. 

9 ‘‘(ii) GRANT OF APPLICATION.—If the 

10 District Court finds that the Government 

11 has failed to prove that there is probable 

12 cause to believe that the covered individual 

13 is an unprivileged enemy belligerent, then 

14 the District Court shall grant the applica15 tion for habeas corpus and order the re16 lease of the covered individual. 

17 ‘‘(2) DISCOVERY.— 

18 ‘‘(A) SCOPE OF DISCOVERY.— 

19 ‘‘(i) IN GENERAL.—Subject to sub20 paragraph (B), a covered individual may 

21 request from the Government as the dis22 covery relating to a habeas corpus pro23 ceeding under this section, and if requested 

24 by a covered individual, the Government 

25 shall provide— 


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1 ‘‘(I) any documents or objects in 

2 the possession of the Government that 

3 the Government relies upon to justify 

4 detention; 

5 ‘‘(II) any reasonably available 

6 evidence in the possession of the Gov7 ernment that tends materially to un8 dermine the information presented to 

9 support the justification of the Gov10 ernment for detaining the covered in11 dividual; and 

12 ‘‘(III) all statements, whether 

13 oral, written, or recorded, made or 

14 adopted by the covered individual that 

15 are known to the attorney for the 

16 Government and directly related to 

17 the information in the return sub18 mitted by the Government. 

19 ‘‘(ii) REASONABLY AVAILABLE EVI20 DENCE DEFINED.—In this subparagraph, 

21 the term ‘reasonably available evidence’ 

22 means— 

23 ‘‘(I) evidence contained in any in24 formation reviewed by Government atVerDate Mar 15 2010 02:15 Mar 12, 2011 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S553.IS S553

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1 torneys preparing factual returns for 

2 covered individuals; and 

3 ‘‘(II) evidence discovered by Gov4 ernment attorneys while litigating ha5 beas corpus petitions filed by covered 

6 individuals. 

7 ‘‘(B) PROTECTION OF NATIONAL SECURITY

8 INFORMATION.— 

9 ‘‘(i) GENERALLY.—Classified informa10 tion shall be protected and is privileged 

11 from disclosure in habeas corpus pro12 ceedings relating to a covered individual. 

13 The rule under this subparagraph applies 

14 to all stages of any proceeding relating to 

15 an application for habeas corpus filed 

16 under subsection (b)(1). 

17 ‘‘(ii) SUBSTITUTE.—If any informa18 tion described in subparagraph (A) is clas19 sified, the attorney for the Government 

20 shall either— 

21 ‘‘(I) provide the covered indi22 vidual with an adequate substitute, to 

23 the extent practicable and consistent 

24 with national security; or 


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1 ‘‘(II) make the classified infor2 mation available to properly cleared 

3 counsel for the covered individual. 

4 ‘‘(iii) NONDISCLOSURE OF CLASSIFIED

5 INFORMATION.—Under no circumstances 

6 shall the Government be required to pro7 vide a covered individual, or any other per8 son detained as an unprivileged enemy bel9 ligerent, with access to classified informa10 tion as part of a habeas corpus proceeding 

11 under this section. 

12 ‘‘(iv) SOURCES AND METHODS.—The 

13 Government shall not be required to dis14 close the classified sources, methods, or ac15 tivities by which the Government acquired 

16 information described in subparagraph (A). 

17 The District Court may require the Gov18 ernment to present, to the extent prac19 ticable and consistent with national secu20 rity, an unclassified summary of the 

21 sources, methods, or activities by which the 

22 Government acquired such information. 

23 ‘‘(v) ORDER.—Upon motion of the 

24 Government, the District Court shall issue 


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1 an order to protect against the disclosure 

2 of any classified information. 

3 ‘‘(vi) EX PARTE AND IN CAMERA RE4 VIEW.—If the Government seeks to protect 

5 classified information from disclosure pur6 suant to the protections of this subpara7 graph, the court shall review the Govern8 ment’s submission ex parte and in camera. 

9 ‘‘(vii) INTERLOCUTORY APPEAL.—The 

10 Government may take an interlocutory ap11 peal from a decision of the District Court 

12 relating to the disclosure of classified in13 formation subject to the same expedited 

14 procedures that would apply to such an ap15 peal pursuant to section 7 of the Classified 

16 Information Procedures Act (18 U.S.C. 

17 App.). 

18 ‘‘(3) EVIDENCE.— 

19 ‘‘(A) CONSIDERATIONS.— 

20 ‘‘(i) IN GENERAL.—The District 

21 Court shall consider the totality of the cir22 cumstances and the evidence as a whole in 

23 determining whether the Government has 

24 carried its burden as required by this sub25 section. 


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1 ‘‘(ii) ANALYSIS.—In considering 

2 whether the Government has carried its 

3 burden as required by this subsection, the 

4 District Court shall not require that each 

5 piece of the Government’s evidence bear 

6 weight without regard to any other evi7 dence in the case. 

8 ‘‘(B) REBUTTABLE PRESUMPTION OF AU9 THENTICITY.—Any evidence relied upon by the 

10 Government in its declaration shall be subject 

11 to a rebuttable presumption that such evidence 

12 is authentic. 

13 ‘‘(C) EVIDENTIARY HEARING.— 

14 ‘‘(i) IN GENERAL.—To the maximum 

15 extent possible, habeas corpus proceedings 

16 under this section shall be decided on the 

17 basis of a written return and a written 

18 declaration. The District Court may grant 

19 an evidentiary hearing only after consid20 ering whether such a hearing would enable 

21 the covered individual to prove that the ap22 plication’s factual allegations, if true, 

23 would entitle the covered individual to re24 lief. If the record before the District Court 

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1 cation, the District Court is not required 

2 to hold a hearing. 

3 ‘‘(ii) ADMISSIBILITY.—The rules con4 cerning the admissibility of evidence in 

5 Federal civil or criminal trials shall not 

6 apply to the presentation and consideration 

7 of information at any evidentiary hearing 

8 under this section. The District Court may 

9 consider any probative evidence, including 

10 hearsay from military, intelligence, and law 

11 enforcement sources. The District Court 

12 may consider the reliability of hearsay evi13 dence, as determined by the totality of the 

14 circumstances, for the purposes of deter15 mining its probative weight, but not its ad16 missibility. 

17 ‘‘(iii) WITNESS PRODUCTION.—The 

18 District Court may grant a motion for oral 

19 testimony relating to an evidentiary hear20 ing pursuant to this paragraph only if the 

21 District Court finds by clear and con22 vincing evidence that military and intel23 ligence operations would not be harmed by 

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1 rial benefit to the resolution by the District 

2 Court of the disputed matter. 

3 ‘‘(4) VOLUNTARINESS OF STATEMENTS.— 

4 ‘‘(A) EXCLUSION OF STATEMENTS OB5 TAINED BY TORTURE OR CRUEL, INHUMAN, OR

6 DEGRADING TREATMENT.—No statement ob7 tained by the use of torture or by cruel, inhu8 man, or degrading treatment (as defined by sec9 tion 1003 of the Detainee Treatment Act of 

10 2005 (42 U.S.C. 2000dd)), whether or not 

11 under color of law, shall be admissible in a pro12 ceeding to consider an application for habeas 

13 corpus by or on behalf of any covered individual 

14 under this section, except against a person ac15 cused of torture or such treatment as evidence 

16 that the statement was made. 

17 ‘‘(B) IN GENERAL.—A statement of the 

18 covered individual applying for habeas corpus 

19 may be admitted into evidence in a proceeding 

20 considering the application for habeas corpus 

21 only upon a finding that— 

22 ‘‘(i) the statement was made incident 

23 to lawful conduct during military oper24 ations at the point of capture or during 

25 closely related active combat engagement, 


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1 and the interests of justice would best be 

2 served by admission of the statement into 

3 evidence; 

4 ‘‘(ii) the statement was made incident 

5 to lawful interrogation conducted by au6 thorized personnel of— 

7 ‘‘(I) a Federal, State, or local law 

8 enforcement agency; or 

9 ‘‘(II) a department or agency of 

10 the United States; 

11 ‘‘(iii) the statement was made volun12 tarily and incident to lawful interrogation 

13 conducted by authorized personnel of a for14 eign government, entity, or law enforce15 ment or intelligence agency; or 

16 ‘‘(iv) the statement was voluntarily 

17 made. 

18 ‘‘(C) DETERMINATION OF VOLUNTARI19 NESS.—In determining whether a statement 

20 was voluntarily made, the District Court shall 

21 consider the totality of the circumstances, in22 cluding, as appropriate, the following: 

23 ‘‘(i) The details of the making of the 

24 statement, accounting for the cir25 cumstances of the conduct of military and 


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1 intelligence operations during or in relation 

2 to hostilities. 

3 ‘‘(ii) The relevant characteristics of 

4 the applicant, such as military training, 

5 age, and education level. 

6 ‘‘(iii) Any lapse of time, change of lo7 cation, or change in personnel questioning 

8 the applicant between the statement 

9 sought to be admitted and any prior ques10 tioning of the applicant. 

11 ‘‘(D) STATEMENTS BEFORE COMBAT STA12 TUS REVIEW TRIBUNAL OR ADMINISTRATIVE

13 REVIEW BOARD.—There shall be a rebuttable 

14 presumption in favor of the voluntariness of 

15 statements against interest made before a Com16 bat Status Review Tribunal, Administrative Re17 view Board, or comparable review board, or as 

18 a result of treatment in compliance with the 

19 Army Field Manual. 

20 ‘‘(E) RELIABILITY.—There shall be a re21 buttable presumption in favor of the reliability 

22 of statements against interest made during or 

23 as a result of interrogation conducted pursuant 

24 to the Army Field Manual, or made before a 


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1 Combat Status Review Tribunal, Administrative 

2 Review Board, or comparable review board. 

3 ‘‘(5) ATTORNEYS.— 

4 ‘‘(A) IN GENERAL.—For the purposes of 

5 habeas corpus proceedings under this section 

6 only, a covered individual shall be represented 

7 by an attorney if the attorney— 

8 ‘‘(i) is retained by or on behalf of the 

9 covered individual or appointed by the Dis10 trict Court solely to provide assistance dur11 ing the course of such proceedings; 

12 ‘‘(ii) has been determined to be eligi13 ble for access to classified information that 

14 is classified at the level Secret or higher, 

15 as required, and has signed the appro16 priate nondisclosure agreement for access 

17 to such classified information; and 

18 ‘‘(iii) has signed a written agreement 

19 to comply with all applicable regulations or 

20 instructions for attorneys in habeas corpus 

21 proceedings before the District Court, in22 cluding any rules of court for conduct dur23 ing the proceedings. 

24 ‘‘(B) CLASSIFIED INFORMATION.—Any at25 torney for a covered individual— 


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1 ‘‘(i) shall protect any classified infor2 mation received by or made known to such 

3 attorney during the course of representa4 tion of the covered individual in accordance 

5 with all applicable law governing the pro6 tection of classified information; and 

7 ‘‘(ii) may not divulge such information 

8 to any person not authorized to receive 

9 such information, including a covered indi10 vidual. 

11 ‘‘(6) VIDEO HEARINGS.—The District Court 

12 shall not require the physical presence of a covered 

13 individual for the purpose of any proceeding under 

14 this section, including any oral testimony or evi15 dentiary hearing, although the District Court in its 

16 discretion may permit a detainee to participate in 

17 certain proceedings through available technological 

18 means, if appropriate and consistent with the proce19 dures for the protection of classified information and 

20 national security under this section and with the 

21 conduct of military and intelligence operations. 

22 ‘‘(e) EXHAUSTION OF MILITARY COMMISSION PRO23 CEDURES AND STAY PENDING EXECUTIVE TRANSFER

24 EFFORTS.— 


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1 ‘‘(1) STAY OF APPLICATIONS PENDING MILI2 TARY COMMISSIONS.—Any application for habeas 

3 corpus that is pending on or after the date of enact4 ment of the Detention of Unprivileged Enemy Bel5 ligerents Act by or on behalf of a covered individual 

6 against whom charges have been sworn under chap7 ter 47A of title 10 shall be stayed pending resolution 

8 of the proceedings under chapter 47A of title 10. 

9 ‘‘(2) HABEAS PROCEDURES FOR PERSONS CON10 VICTED BY FINAL JUDGMENT OF A MILITARY COM11 MISSION.— 

12 ‘‘(A) IN GENERAL.—Subject to the restric13 tions under sections 950g and 950j of title 10, 

14 an application for a writ of habeas corpus by or 

15 on behalf of a covered individual in custody 

16 pursuant to a final judgment of a military com17 mission shall not be considered until the appli18 cant has exhausted the remedies available under 

19 chapter 47A of title 10. 

20 ‘‘(B) REMEDIES NOT EXHAUSTED.—A cov21 ered individual shall not be determined to have 

22 exhausted the remedies available under chapter 

23 47A of title 10, within the meaning of this sec24 tion, if the covered individual has the right 

25 under chapter 47A of title 10 to raise, by any 


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1 available procedure, the question presented in 

2 an application for a writ of habeas corpus. 

3 ‘‘(C) LIMITATIONS.—An application for a 

4 writ of habeas corpus by or on behalf of a cov5 ered individual in custody pursuant to the judg6 ment of a military commission under chapter 

7 47A of title 10 shall not be granted with re8 spect to any claim that was adjudicated on the 

9 merits in military commission proceedings 

10 under chapter 47A of title 10 or that could 

11 have been raised before the military commis12 sion, except where the commission was without 

13 jurisdiction to impose such a judgment. 

14 ‘‘(D) SCOPE OF REVIEW.—Subject to the 

15 restrictions under subparagraph (C), in review16 ing any other claim on an application for a writ 

17 of habeas corpus on behalf of a covered indi18 vidual in custody pursuant to the sentence of a 

19 military commission under chapter 47A of title 

20 10, the District Court shall apply the same def21 erence applicable to a court reviewing an appli22 cation on behalf of a person in custody pursu23 ant to the sentence of a court martial. 

24 ‘‘(3) STAY PENDING EXECUTIVE TRANSFER EF25 FORTS.—Any application for habeas corpus that is 


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1 pending on or after the date of enactment of the De2 tention of Unprivileged Enemy Belligerents Act by 

3 or on behalf of a covered individual who has been 

4 designated for transfer or release to another coun5 try, shall, upon a representation by the attorney for 

6 the Government that good faith efforts are being 

7 made to facilitate such transfer or release by the Ex8 ecutive branch, be stayed pending resolution of such 

9 transfer or release efforts. 

10 ‘‘(f) LIMITS ON SECOND OR SUCCESSIVE APPLICA11 TIONS.— 

12 ‘‘(1) IN GENERAL.—A claim presented in a sec13 ond or successive application for habeas corpus 

14 under this section that was presented in a prior ap15 plication shall be dismissed. 

16 ‘‘(2) CLAIMS NOT INCLUDED IN PRIOR APPLICA17 TION.—A claim presented in a second or successive 

18 application for habeas corpus under this section that 

19 was not presented in a prior application shall be dis20 missed unless— 

21 ‘‘(A) the factual predicate for the claim 

22 could not have been discovered previously 

23 through the exercise of due diligence; and 

24 ‘‘(B) the facts underlying the claim, if 

25 proven and viewed in light of the evidence as a 


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1 whole, would be sufficient to establish by clear 

2 and convincing evidence that no reasonable 

3 factfinder would have found that the covered in4 dividual was lawfully detained. 

5 ‘‘(3) PROCEDURES FOR SECOND AND SUCCES6 SIVE APPLICATIONS.— 

7 ‘‘(A) IN GENERAL.—The District Court 

8 may only consider a second or successive appli9 cation for habeas corpus under this section if 

10 the court determines that the covered individual 

11 makes a prima facie showing that the applica12 tion satisfies the requirements under paragraph 

13 (2) for consideration of a second or successive 

14 application for habeas corpus. 

15 ‘‘(B) APPEAL.—The Government may take 

16 an interlocutory appeal from a decision by the 

17 District Court to grant consideration of a sec18 ond or successive habeas corpus application 

19 under this paragraph to the United States 

20 Court of Appeals for the District of Columbia 

21 Circuit. The District Court shall stay pro22 ceedings pending the decision on an interlocu23 tory appeal. 

24 ‘‘(g) RELEASE.— 


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1 ‘‘(1) COVERED INDIVIDUALS ORDERED RE2 LEASED.— 

3 ‘‘(A) IN GENERAL.—No court shall order 

4 the release of a covered individual into the 

5 United States, its territories, or possessions. 

6 ‘‘(B) VISAS AND IMMIGRATION.—The Sec7 retary of State shall not issue any visa and the 

8 Secretary of Homeland Security shall not admit 

9 or provide any type of immigration status to a 

10 covered individual described in subparagraph 

11 (A) that may permit the covered individual to 

12 enter, be admitted, or otherwise be at liberty in 

13 the United States. 

14 ‘‘(C) PAROLE.—Neither the Attorney Gen15 eral or the Secretary of Homeland Security may 

16 parole into the United States any alien who, as 

17 of January 1, 2009, was being detained by the 

18 Department of Defense at Guantanamo Bay 

19 Naval Base. 

20 ‘‘(2) TRANSFER.— 

21 ‘‘(A) IN GENERAL.—If the District Court 

22 grants an application for a writ of habeas cor23 pus and orders the release of a covered indi24 vidual, the covered individual shall be released 

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1 land Security for the purpose of transferring 

2 the individual to the country of citizenship of 

3 the individual or to another country. If custody 

4 by the Department of Homeland Security is not 

5 practicable, or the President or a designee of 

6 the President determines that alternative cus7 tody pending release is more appropriate, the 

8 covered individual may be released into the cus9 tody of an alternative department or agency of 

10 the Federal Government selected by the Presi11 dent or such designee. 

12 ‘‘(B) TRANSFER.—An individual in the 

13 custody of the Department of Homeland Secu14 rity or an alternative department or agency 

15 pursuant to subparagraph (A) shall be housed 

16 separately from aliens detained as unprivileged 

17 enemy belligerents by the Department of De18 fense and in a manner consistent with the safe19 ty and security of United States personnel and 

20 citizens. A transfer made pursuant to subpara21 graph (A) shall be effected as expeditiously as 

22 possible and in a manner that is consistent with 

23 the policy set out in section 2242 of the For24 eign Relations Authorization Act, Fiscal Years 

25 1998 and 1999 (subdivision B of division G of 


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27 

•S 553 IS

1 Public Law 105–277; 8 U.S.C. 1231 note), and 

2 with the national security interests of the 

3 United States.’’. 

4 (b) CLERICAL AMENDMENT.—The table of sections 

5 at the beginning of chapter 153 of such title is amended 

6 by adding at the end the following new item: 

‘‘2256. Habeas corpus review for certain unprivileged enemy belligerents.’’. 

7 SEC. 4. LIMITATION ON HABEAS CORPUS REVIEW FOR DE8 TAINED ALIENS AWAITING STATUS DETER9 MINATION UNDER LAW OF WAR. 

10 Section 2241(e) of title 28, United States Code, is 

11 amended by adding at the end the following new para12 graph: 

13 ‘‘(3) No court, justice, or judge shall have jurisdiction 

14 to hear or consider an application for a writ of habeas 

15 corpus filed by or on behalf of an alien detained by the 

16 United States who is awaiting a status determination 

17 under the law of war, except in the case of undue delay.’’. 

Æ 


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