II 

110TH CONGRESS 

2D SESSION S. 3401 

To provide for habeas corpus review for terror suspects held at Guantanamo 

Bay, Cuba, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 31, 2008 

Mr. GRAHAM (for himself and Mr. LIEBERMAN) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

A BILL 

To provide for habeas corpus review for terror suspects held 

at Guantanamo Bay, Cuba, 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 ‘‘Enemy Combatant De5 tention Review Act of 2008’’. 

6 SEC. 2. HABEAS CORPUS REVIEW FOR CERTAIN ENEMY 

7 COMBATANTS. 

8 (a) IN GENERAL.—Chapter 153 of title 28, United 

9 States Code, is amended by striking section 2256, as 

10 added by section 250 of the Act of November 6, 1978 


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1 (Public Law 95–598; 92 Stat. 2672), and inserting the 

2 following: 

3 ‘‘§ 2256. Habeas corpus review for certain enemy 

4 combatants 

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

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

7 means the attorney representing the United States 

8 in a habeas corpus proceeding under this section; 

9 ‘‘(2) the term ‘covered individual’ means an in10 dividual who— 

11 ‘‘(A) has been determined by a Combatant 

12 Status Review Tribunal to be an enemy com13 batant (pursuant to the definition employed by 

14 that tribunal) or is awaiting the determination 

15 of such a tribunal; 

16 ‘‘(B) is in the custody of the United States 

17 at Guantanamo Bay, Cuba on or after the date 

18 of enactment of the Enemy Combatant Deten19 tion Review Act of 2008; and 

20 ‘‘(C) is not a citizen of the United States 

21 or an alien admitted for permanent residence in 

22 the United States; and 

23 ‘‘(3) the term ‘enemy combatant’ means a per24 son who has engaged in hostilities or who has pur25 posefully and materially supported hostilities against 


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1 the United States or its cobelligerents on behalf of 

2 the Taliban, al Qaeda, or associated forces. 

3 ‘‘(b) STATEMENT OF AUTHORITY.— 

4 ‘‘(1) IN GENERAL.—Congress reaffirms that the 

5 United States is in an armed conflict with al Qaeda, 

6 the Taliban, and associated forces and that those en7 tities continue to pose a threat to the United States 

8 and its citizens, both domestically and abroad. 

9 ‘‘(2) AUTHORITY.—Congress reaffirms that the 

10 President is authorized to detain enemy combatants 

11 in connection with the continuing armed conflict 

12 with al Qaeda, the Taliban, and associated forces, 

13 regardless of the place of capture, until the termi14 nation of hostilities. 

15 ‘‘(3) RULE OF CONSTRUCTION.—The authority 

16 under this section shall not be construed to alter or 

17 limit the authority of the President under the Con18 stitution of the United States to detain combatants 

19 in the continuing armed conflict with al Qaeda, the 

20 Taliban, and associated forces, or in any other 

21 armed conflict. 

22 ‘‘(c) JURISDICTION AND VENUE.— 

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

24 Court for the District of Columbia (in this section 

25 referred to as the ‘District Court’) shall have excluVerDate Aug 31 2005 23:31 Aug 02, 2008 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3401.IS S3401

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1 sive jurisdiction of, and shall be the exclusive venue 

2 for consideration of, all applications for habeas cor3 pus by or on behalf of any covered individual that 

4 is pending on or filed on or after the date of enact5 ment of the Enemy Combatant Detention Review 

6 Act of 2008. 

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

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

9 behalf of a covered individual— 

10 ‘‘(A) may challenge the legality of the con11 tinued detention of the covered individual; and 

12 ‘‘(B) may not include any other claim re13 lating to the detention, transfer, treatment, 

14 trial, or conditions of confinement of the cov15 ered individual or any other action against the 

16 United States or its agents. 

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

18 applications for a writ of habeas corpus by or on be19 half of a covered individual that are pending on or 

20 after the date of enactment of the Enemy Combat21 ant Detention Review Act of 2008 shall be consoli22 dated before the Chief Judge of the District Court 

23 or a designee of the Chief Judge for consolidated 

24 proceedings and determinations on common quesVerDate Aug 31 2005 23:31 Aug 02, 2008 Jkt 069200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3401.IS S3401

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1 tions of fact or law, including questions concerning 

2 the procedures to be conducted on the applications. 

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

4 1403(a) of this title, any court of the United States 

5 shall transfer a case within the exclusive jurisdiction 

6 of the District Court. 

7 ‘‘(d) PROCEDURES.— 

8 ‘‘(1) STATUS OF COVERED INDIVIDUAL.— 

9 ‘‘(A) IN GENERAL.—In a proceeding insti10 tuted by an application for habeas corpus by or 

11 on behalf of a covered individual under sub12 section (c)(1), the burden shall be on the Gov13 ernment to submit a return in the form of a 

14 written declaration describing the factual basis 

15 upon which the Government is detaining the 

16 covered individual. Any evidence relied upon by 

17 the Government in its declaration shall be sub18 ject to a rebuttable presumption with respect to 

19 the competency and authenticity of such evi20 dence. 

21 ‘‘(B) PRESUMPTION.—Upon a determina22 tion that the Government’s return shows cred23 ible evidence that the covered individual is an 

24 enemy combatant, there shall be a rebuttable 

25 presumption that the covered individual is an 


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1 enemy combatant. The covered individual shall 

2 have the burden of rebutting the presumption 

3 that the covered individual is an enemy combat4 ant by a showing of more persuasive evidence. 

5 The covered individual shall present such evi6 dence in the form of a written declaration. 

7 ‘‘(C) REBUTTAL OF PRESUMPTION.—If a 

8 covered individual presents evidence sufficient 

9 to rebut the presumption under subparagraph 

10 (B), the District Court may hold an evidentiary 

11 hearing on any disputed matter. In a hearing 

12 under this subparagraph, the court shall hear 

13 evidence and make findings of fact by a prepon14 derance of the evidence. 

15 ‘‘(2) DISCOVERY.— 

16 ‘‘(A) SCOPE OF DISCOVERY.—Subject to 

17 subparagraph (B), a covered individual may re18 quest from the Government as the discovery re19 lating to a habeas corpus proceeding under this 

20 section, and if requested by a covered indi21 vidual, the Government shall provide— 

22 ‘‘(i) any documents or objects directly 

23 and specifically referenced in the return 

24 submitted by the Government; 


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1 ‘‘(ii) any evidence known to the attor2 ney for the Government that tends materi3 ally to undermine evidence presented in the 

4 return submitted by the Government; 

5 ‘‘(iii) all statements, whether oral, 

6 written, or recorded, made or adopted by 

7 the covered individual that are known to 

8 the attorney for the Government and di9 rectly related to the information in the re10 turn submitted by the Government. 

11 ‘‘(B) PROTECTION OF NATIONAL SECURITY

12 INFORMATION.— 

13 ‘‘(i) GENERALLY.—Classified informa14 tion shall be protected and is privileged 

15 from disclosure in habeas corpus pro16 ceedings relating to a covered individual. 

17 The rule under this subparagraph applies 

18 to all stages of any proceeding relating to 

19 an application for habeas corpus filed 

20 under subsection (c)(1). 

21 ‘‘(ii) SUBSTITUTE.—If any informa22 tion described in subparagraph (A) is clas23 sified, the attorney for the Government 

24 shall either— 


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1 ‘‘(I) provide the covered indi2 vidual with an adequate substitute, to 

3 the extent practicable and consistent 

4 with national security; or 

5 ‘‘(II) make the classified infor6 mation available to properly cleared 

7 counsel for the covered individual. 

8 ‘‘(iii) NONDISCLOSURE OF CLASSIFIED

9 INFORMATION.—Under no circumstances 

10 shall the Government be required to pro11 vide a covered individual, or any other per12 son detained as an enemy combatant, with 

13 access to classified information as part of 

14 a habeas corpus proceeding under this sec15 tion. 

16 ‘‘(iv) SOURCES AND METHODS.—The 

17 Government shall not be required to dis18 close to anyone outside the Government 

19 the classified sources, methods, or activi20 ties by which the Government acquired in21 formation described in subparagraph (A). 

22 The District Court may require the Gov23 ernment to present, to the extent prac24 ticable and consistent with national secu25 rity, an unclassified summary of the 


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1 sources, methods, or activities by which the 

2 Government acquired such information. 

3 ‘‘(v) ORDER.—Upon motion of the 

4 Government, the District Court shall issue 

5 an order to protect against the disclosure 

6 of any classified information. 

7 ‘‘(vi) EX PARTE AND IN CAMERA RE8 VIEW.—If the Government seeks to protect 

9 classified information from disclosure pur10 suant to the protections of this subpara11 graph, the court may review the Govern12 ment’s submission ex parte and in camera. 

13 ‘‘(vii) INTERLOCUTORY APPEAL.—The 

14 Government may take an interlocutory ap15 peal from a decision of the District Court 

16 relating to the disclosure of classified in17 formation subject to the same expedited 

18 procedures that would apply to such an ap19 peal pursuant to section 7 of the Classified 

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

21 App.). 

22 ‘‘(3) WITNESS PRODUCTION.— 

23 ‘‘(A) IN GENERAL.—To the maximum ex24 tent possible, habeas corpus proceedings shall 

25 be decided on the basis of a written return and 


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1 a written declaration. The rules concerning the 

2 admissibility of evidence in civil or criminal 

3 trials shall not apply to the presentation and 

4 consideration of information at any evidentiary 

5 hearing under this section. The District Court 

6 may consider any reliable and probative evi7 dence, including hearsay from military, intel8 ligence, and law enforcement sources. 

9 ‘‘(B) BASIS FOR IN-PERSON TESTIMONY.— 

10 The District Court may grant a motion for oral 

11 testimony relating to an evidentiary hearing 

12 pursuant to paragraph (1)(C) only if the court 

13 finds by clear and convincing evidence that mili14 tary and intelligence operations would not be 

15 harmed by the production of the witness and 

16 oral testimony would be likely to provide a ma17 terial benefit to the resolution by the court of 

18 the disputed matter. 

19 ‘‘(4) ATTORNEYS.— 

20 ‘‘(A) IN GENERAL.—The covered individual 

21 shall be represented by an attorney if the attor22 ney— 

23 ‘‘(i) is retained by the covered indi24 vidual or appointed by the District Court; 


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1 ‘‘(ii) has been determined to be eligi2 ble for access to classified information that 

3 is classified at the level Secret or higher, 

4 as required; and 

5 ‘‘(iii) has signed a written agreement 

6 to comply with all applicable regulations or 

7 instructions for attorneys in habeas corpus 

8 proceedings before the District Court, in9 cluding any rules of court for conduct dur10 ing the proceedings. 

11 ‘‘(B) CLASSIFIED INFORMATION.—Any at12 torney for a covered individual— 

13 ‘‘(i) shall protect any classified infor14 mation received during the course of rep15 resentation of the covered individual in ac16 cordance with all applicable law governing 

17 the protection of classified information; 

18 and 

19 ‘‘(ii) may not divulge such information 

20 to any person not authorized to receive it. 

21 ‘‘(5) VIDEO HEARINGS.—The District Court 

22 shall not require the presence of a covered individual 

23 detained at Guantanamo Bay, Cuba, or elsewhere, 

24 for the purpose of any proceeding under this section, 

25 including an evidentiary hearing pursuant to paraVerDate Aug 31 2005 23:31 Aug 02, 2008 Jkt 069200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3401.IS S3401

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1 graph (1)(C), although the District Court in its dis2 cretion may permit a detainee to participate from 

3 Guantanamo Bay, Cuba, in certain proceedings 

4 through available technological means, if appropriate 

5 and consistent with the procedures for the protection 

6 of classified information and national security under 

7 this section. 

8 ‘‘(e) EXHAUSTION OF MILITARY COMMISSION PRO9 CEDURES.— 

10 ‘‘(1) STAY OF APPLICATIONS PENDING OTHER

11 PROCEEDINGS.—Any application for habeas corpus 

12 that is pending on or after the date of enactment of 

13 the Enemy Combatant Detention Review Act of 

14 2008 by or on behalf of a covered individual against 

15 whom charges have been sworn under chapter 47A 

16 of title 10 shall be stayed pending resolution of the 

17 proceedings under chapter 47A of title 10. 

18 ‘‘(2) HABEAS PROCEDURES FOR PERSONS CON19 VICTED BY FINAL JUDGMENT OF A MILITARY COM20 MISSION.— 

21 ‘‘(A) IN GENERAL.—Subject to the restric22 tions under sections 950g and 950j of title 10, 

23 an application for a writ of habeas corpus on 

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1 sion shall not be granted unless the applicant 

2 has exhausted the remedies available under 

3 chapter 47A of title 10. 

4 ‘‘(B) FAILURE TO EXHAUST.—An applica5 tion for a writ of habeas corpus by a covered 

6 individual may be denied on the merits, not7 withstanding the failure of the applicant to ex8 haust the remedies available under chapter 47A 

9 of title 10. 

10 ‘‘(C) REMEDIES NOT EXHAUSTED.—A cov11 ered individual shall not be determined to have 

12 exhausted the remedies available under chapter 

13 47A of title 10, within the meaning of this sec14 tion, if the covered individual has the right 

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

16 available procedure, the question presented in 

17 an application for a writ of habeas corpus. 

18 ‘‘(D) LIMITATIONS.—An application for a 

19 writ of habeas corpus on behalf of a covered in20 dividual in custody pursuant to the judgment of 

21 a military commission shall not be granted with 

22 respect to any claim that was adjudicated on 

23 the merits in military commission proceedings 

24 under chapter 47A of title 10 or that could 

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1 sion, except where the commission was without 

2 jurisdiction to impose such a judgement. 

3 ‘‘(E) SCOPE OF REVIEW.—Subject to the 

4 restrictions under subparagraph (D), in review5 ing any other claim on an application for a writ 

6 of habeas corpus on behalf of a covered indi7 vidual in custody pursuant to the sentence of a 

8 military commission, the District Court shall 

9 apply the same deference applicable to a court 

10 reviewing an application on behalf of a person 

11 in custody pursuant to the sentence of a court 

12 martial. 

13 ‘‘(f) LIMITS ON SECOND OR SUCCESSIVE APPLICA14 TIONS.— 

15 ‘‘(1) IN GENERAL.—A claim presented in a sec16 ond or successive application for habeas corpus 

17 under this section that was presented in a prior ap18 plication shall be dismissed. 

19 ‘‘(2) CLAIMS NOT INCLUDED IN PRIOR APPLICA20 TION.—A claim presented in a second or successive 

21 application for habeas corpus under this section that 

22 was not presented in a prior application shall be dis23 missed unless the— 


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1 ‘‘(A) factual predicate for the claim could 

2 not have been discovered previously through the 

3 exercise of due diligence; and 

4 ‘‘(B) facts underlying the claim, if proven 

5 and viewed in light of the evidence as a whole, 

6 would be sufficient to establish by clear and 

7 convincing evidence that no reasonable 

8 factfinder would have found that the covered in9 dividual was lawfully detained. 

10 ‘‘(3) PROCEDURES FOR SECOND AND SUCCES11 SIVE APPLICATIONS.— 

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

13 may only consider a second or successive appli14 cation for habeas corpus under this section if 

15 the court determines that the covered individual 

16 makes a prima facie showing that the applica17 tion satisfies the requirements under paragraph 

18 (2) for consideration of a second or successive 

19 application for habeas corpus. 

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

21 an interlocutory appeal from a decision by the 

22 District Court to grant consideration of a sec23 ond or successive habeas corpus application 

24 under this paragraph to the United States 

25 Court of Appeals for the District of Columbia 


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1 Circuit. The District Court shall stay pro2 ceedings pending the decision on an interlocu3 tory appeal. 

4 ‘‘(g) RELEASE.— 

5 ‘‘(1) COVERED INDIVIDUALS ORDERED RE6 LEASED.— 

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

8 the release of a covered individual into the 

9 United States. 

10 ‘‘(B) VISAS AND IMMIGRATION.—The Sec11 retary of State shall not issue any visa and the 

12 Secretary of Homeland Security shall not admit 

13 or provide any type of status to a covered indi14 vidual described in subparagraph (A) that may 

15 permit the covered individual to enter or be ad16 mitted to the United States. 

17 ‘‘(C) WAIVER.—The President, in the sole 

18 discretion of the President, may waive the re19 strictions under subparagraph (A) or (B), in 

20 whole or in part, upon a finding that the waiver 

21 of such restriction would be consistent with the 

22 national security of the United States. 

23 ‘‘(2) TRANSFER.— 

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

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1 pus and orders the release of a covered indi2 vidual, the covered individual shall be released 

3 into the custody of the Secretary of Homeland 

4 Security for the purpose of transferring the in5 dividual to the country of citizenship of the in6 dividual or to another country. 

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

8 custody of the Secretary of Homeland Security 

9 pursuant to subparagraph (A) shall be housed 

10 separately from aliens detained as enemy com11 batants by the Department of Defense and in 

12 a manner consistent with safety and security of 

13 United States personnel. A transfer made pur14 suant to subparagraph (A) shall be effected as 

15 expeditiously as possible and in a manner that 

16 is consistent with the policy set out in section 

17 2242 of the 1998 Foreign Relations Authoriza18 tion Act, Fiscal Years 1998 and 1999 (subdivi19 sion B of division G of Public Law 105–277; 8 

20 U.S.C. 1231 note), and with the national secu21 rity interests of the United States.’’. 

22 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

23 (1) IN GENERAL.—Section 2241 of title 28, 

24 United States Code, is amended by striking sub25 section (e). 


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1 (2) TABLE OF SECTIONS.—The table of sections 

2 for chapter 153 of title 28, United States Code, is 

3 amended by striking the item relating to section 

4 2256, as added by section 250 of the Act of Novem5 ber 6, 1978 (Public Law 95–598; 92 Stat. 2672), 

6 and inserting the following: 

‘‘2256. Habeas corpus review for certain enemy combatants.’’. 

7 (3) DETAINEE TREATMENT ACT OF 2005.—Sec8 tion 1005(e) of the Detainee Treatment Act of 2005 

9 (10 U.S.C. 801 note) is amended by striking para10 graph (2). 

11 SEC. 3. EFFECTIVE DATE. 

12 This Act shall take effect on the date of enactment 

13 of this Act, and shall apply to all cases, without exception, 

14 pending on or after the date of enactment of this Act. 

Æ 


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