I 

111TH CONGRESS 

2D SESSION H. R. 4892 

To provide for the interrogation and detention of enemy belligerents who 

commit hostile acts against the United States, to establish certain limitations on the prosecution of such belligerents for such acts, and for 

other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 19, 2010 

Mr. MCKEON introduced the following bill; which was referred to the Select 

Committee on Intelligence (Permanent Select), and in addition to the 

Committees on Armed Services and the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of 

such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To provide for the interrogation and detention of enemy 

belligerents who commit hostile acts against the United 

States, to establish certain limitations on the prosecution 

of such belligerents for such acts, 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 Belligerent In5 terrogation, Detention, and Prosecution Act of 2010’’. 


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1 SEC. 2. PLACEMENT OF SUSPECTED UNPRIVILEGED ENEMY 

2 BELLIGERENTS IN MILITARY CUSTODY. 

3 (a) MILITARY CUSTODY REQUIREMENT.—Whenever 

4 within the United States, its territories, and possessions, 

5 or outside the territorial limits of the United States, an 

6 individual is captured or otherwise comes into the custody 

7 or under the effective control of the United States who 

8 is suspected of engaging in hostilities against the United 

9 States or its coalition partners through an act of ter10 rorism, or by other means in violation of the laws of war, 

11 or of purposely and materially supporting such hostilities, 

12 and who may be an unprivileged enemy belligerent, the 

13 individual shall be placed in military custody for purposes 

14 of initial interrogation and determination of status in ac15 cordance with the provisions of this Act. 

16 (b) DELAY FOR INTELLIGENCE ACTIVITIES.—The 

17 Secretary of Defense and the Director of National Intel18 ligence may, after giving due consideration to operational 

19 needs and requirements to avoid compromise or disclosure 

20 of an intelligence mission or intelligence sources or meth21 ods, jointly authorize an element of the intelligence com22 munity that has initially captured an individual who may 

23 be an unprivileged enemy belligerent or otherwise taken 

24 such individual into custody or placed such individual 

25 under the effective control of the United States to hold, 

26 interrogate, or transport such individual. Such individual, 


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1 if retained by the United States following that authoriza2 tion, shall subsequently be placed into military custody in 

3 accordance with subsection (a). 

4 SEC. 3. INTERROGATION AND DETERMINATION OF STATUS 

5 OF SUSPECTED UNPRIVILEGED ENEMY BEL6 LIGERENTS. 

7 (a) INTERROGATION OF HIGH-VALUE DETAINEES.— 

8 (1) IN GENERAL.—The Director of National In9 telligence shall, in consultation with the heads of de10 partments and agencies of the United States Gov11 ernment containing elements of the intelligence com12 munity, the Director of the Central Intelligence 

13 Agency, and the Director of the Federal Bureau of 

14 Investigation— 

15 (A) coordinate the interrogation of high16 value detainees and individuals who are not in 

17 the custody or under the effective control of the 

18 United States, but otherwise meet the definition 

19 of a high-value detainee under subsection (c); 

20 (B) coordinate the preliminary determina21 tions with respect to whether or not high-value 

22 detainees are unprivileged enemy belligerents; 

23 (C) be responsible for any interagency 

24 group— 


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1 (i) conducting an interrogation of a 

2 high-value detainee or individual who is 

3 not in the custody or under the effective 

4 control of the United States, but otherwise 

5 meets the definition of a high-value de6 tainee under subsection (c); and 

7 (ii) making a preliminary determina8 tion with respect to whether or not the de9 tainee is an unprivileged enemy belligerent; 

10 and 

11 (D) before an officer or employee of the 

12 Federal Government provides the warnings of 

13 constitutional rights described in Miranda vs. 

14 Arizona, 384 U.S. 436 (U.S. 1966) to a high15 value detainee who is suspected of terrorism, 

16 associated with terrorists, or believed to have 

17 knowledge of terrorists and who is captured, 

18 held, or questioned by a department or agency 

19 that is or contains an element of the intel20 ligence community, approve the providing of 

21 such warnings to such high-value detainee. 

22 (2) LIMITATION.—Paragraph (1) shall not 

23 apply with respect to a detainee who is captured on 

24 the battlefield by the Armed Forces of the United 

25 States, unless the Director of National Intelligence 


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1 determines that such detainee is a high-value de2 tainee. 

3 (3) CERTAIN DELEGATIONS PROHIBITED.—The 

4 Director of National Intelligence may not delegate 

5 the authority to approve the providing of warnings 

6 under paragraph (1)(D). 

7 (4) PRELIMINARY DETERMINATION WITH RE8 SPECT TO HIGH-VALUE DETAINEES.—A determina9 tion under paragraph (1)(B) shall be based on all in10 telligence information available. The Director of Na11 tional Intelligence shall submit each such determina12 tion to the Secretary of Defense and the Attorney 

13 General. 

14 (5) PARAMOUNT PURPOSE OF INTERROGA15 TIONS.—An interrogation conducted in accordance 

16 with this section shall be conducted in a manner to 

17 accomplish the paramount purpose of protecting 

18 United States civilians and United States civilian fa19 cilities through thorough and professional interroga20 tion for intelligence purposes. 

21 (b) DETERMINATIONS OF STATUS.— 

22 (1) FINAL DETERMINATION.—The Director of 

23 National Intelligence, the Secretary of Defense, and 

24 the Attorney General shall jointly submit to the 

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1 gress a final determination as to whether or not a 

2 high-value detainee for which a preliminary deter3 mination of status has been made under subsection 

4 (a)(1)(B) or (a)(1)(C)(ii) is an unprivileged enemy 

5 belligerent for purposes of this Act. In the event of 

6 a disagreement between the Director of National In7 telligence, the Secretary of Defense, and the Attor8 ney General, the President shall make the final de9 termination. 

10 (2) DEADLINE FOR DETERMINATIONS.—All ac11 tions required regarding a high-value detainee under 

12 this subsection shall be completed as soon as prac13 ticable, consistent with intelligence collection require14 ments, after the detainee is placed in military cus15 tody under section 2. 

16 (3) CRITERIA FOR DESIGNATION OF INDIVID17 UALS AS HIGH-VALUE DETAINEES.—The criteria for 

18 designating an individual as a high-value detainee 

19 based on the following: 

20 (A) The potential threat the individual 

21 poses for an attack on civilians or civilian facili22 ties within the United States or upon United 

23 States citizens or United States civilian facili24 ties abroad at the time of capture or when comVerDate Nov 24 2008 21:12 Mar 22, 2010 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4892.IH H4892

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1 ing under the custody or control of the United 

2 States. 

3 (B) The potential threat the individual 

4 poses to United States military personnel or 

5 United States military facilities at the time of 

6 capture or when coming under the custody or 

7 control of the United States. 

8 (C) The potential intelligence value of the 

9 individual. 

10 (D) Membership in al Qaeda, a terrorist 

11 group affiliated with al Qaeda, or any other or12 ganization designated by the Secretary of State 

13 as a foreign terrorist organization in accordance 

14 with section 219 of the Immigration and Na15 tionality Act (8 U.S.C. 1189). 

16 (E) Such other matters as the President 

17 considers appropriate. 

18 (c) HIGH-VALUE DETAINEE DEFINED.—In this sec19 tion, the term ‘‘high-value detainee’’ means an individual 

20 placed in military custody under section 2 that meets cri21 teria for designating an individual as a high-value detainee 

22 based on the criteria referred to in subsection (b)(3), as 

23 determined by the Secretary of Defense. 


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1 SEC. 4. LIMITATION ON PROSECUTION OF ALIEN 

2 UNPRIVILEGED ENEMY BELLIGERENTS. 

3 (a) LIMITATION.—No funds appropriated or other4 wise made available to the Department of Justice may be 

5 used to prosecute in an Article III court in the United 

6 States, or in any territory or possession of the United 

7 States, any alien who has been determined to be an 

8 unprivileged enemy belligerent under section 3(b)(1). 

9 (b) APPLICABILITY PENDING FINAL DETERMINA10 TION OF STATUS.—While a final determination on the sta11 tus of an alien high-value detainee is pending under sec12 tion 3(b)(1), the alien shall be treated as an unprivileged 

13 enemy belligerent for purposes of subsection (a). 

14 SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED 

15 ENEMY BELLIGERENTS. 

16 An individual, including a citizen of the United 

17 States, determined to be an unprivileged enemy belligerent 

18 under section 3(b)(1) in a manner which satisfies Article 

19 5 of the Geneva Convention Relative to the Treatment of 

20 Prisoners of War may be detained without criminal 

21 charges and without trial for the duration of hostilities 

22 against the United States or its coalition partners in which 

23 the individual has engaged, or which the individual has 

24 purposely and materially supported, consistent with the 

25 law of war and any authorization for the use of military 

26 force provided by Congress pertaining to such hostilities. 


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1 SEC. 6. DEFINITIONS. 

2 In this Act: 

3 (1) ACT OF TERRORISM.—The term ‘‘act of ter4 rorism’’ means an act of terrorism as that term is 

5 defined in section 101(16) of the Homeland Security 

6 Act of 2002 (6 U.S.C. 101(16)). 

7 (2) ALIEN.—The term ‘‘alien’’ means an indi8 vidual who is not a citizen of the United States. 

9 (3) APPROPRIATE COMMITTEES OF CON10 GRESS.—The term ‘‘appropriate committees of Con11 gress’’ means— 

12 (A) the Committee on Armed Services, the 

13 Committee on Homeland Security and Govern14 mental Affairs, the Committee on the Judiciary, 

15 and the Select Committee on Intelligence of the 

16 Senate; and 

17 (B) the Committee on Armed Services, the 

18 Committee on Homeland Security, the Com19 mittee on the Judiciary, and the Permanent Se20 lect Committee on Intelligence of the House of 

21 Representatives. 

22 (4) ARTICLE III COURT.—The term ‘‘Article III 

23 court’’ means a court of the United States estab24 lished under Article III of the Constitution of the 

25 United States. 


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1 (5) COALITION PARTNER.—The term ‘‘coalition 

2 partner’’, with respect to hostilities engaged in by 

3 the United States, means any State or armed force 

4 directly engaged along with the United States in 

5 such hostilities or providing direct operational sup6 port to the United States in connection with such 

7 hostilities. 

8 (6) GENEVA CONVENTION RELATIVE TO THE

9 TREATMENT OF PRISONERS OF WAR.—The term 

10 ‘‘Geneva Convention Relative to the Treatment of 

11 Prisoners of War’’ means the Geneva Convention 

12 Relative to the Treatment of Prisoners of War, done 

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

14 (7) HOSTILITIES.—The term ‘‘hostilities’’ 

15 means any conflict subject to the laws of war, and 

16 includes a deliberate attack upon civilians and civil17 ian targets protected by the laws of war. 

18 (8) INTELLIGENCE COMMUNITY.—The term 

19 ‘‘intelligence community’’ has the meaning given 

20 such term under section 3(4) of the National Secu21 rity Act of 1947 (50 U.S.C. 401a(4)). 

22 (9) PRIVILEGED BELLIGERENT.—The term 

23 ‘‘privileged belligerent’’ means an individual belong24 ing to one of the eight categories enumerated in ArVerDate Nov 24 2008 21:12 Mar 22, 2010 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4892.IH H4892

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1 ticle 4 of the Geneva Convention Relative to the 

2 Treatment of Prisoners of War. 

3 (10) UNPRIVILEGED ENEMY BELLIGERENT.— 

4 The term ‘‘unprivileged enemy belligerent’’ means an 

5 individual (other than a privileged belligerent) who— 

6 (A) has engaged in hostilities against the 

7 United States or its coalition partners; 

8 (B) has purposely and materially sup9 ported hostilities against the United States or 

10 its coalition partners; or 

11 (C) was a part of al Qaeda at the time of 

12 capture. 

13 SEC. 7. EFFECTIVE DATE. 

14 This Act shall take effect on the date of the enact15 ment of this Act, and shall apply with respect to individ16 uals who are captured or otherwise come into the custody 

17 or under the effective control of the United States on or 

18 after that date. 

Æ 


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