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[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 1876 Introduced in Senate (IS)]

110th CONGRESS
  1st Session
                                S. 1876

  To prohibit extraterritorial detention and rendition, except under 
  limited circumstances, to modify the definition of ``unlawful enemy 
 combatant'' for purposes of military commissions, to extend statutory 
          habeas corpus to detainees, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             July 25, 2007

   Mr. Biden introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
  To prohibit extraterritorial detention and rendition, except under 
  limited circumstances, to modify the definition of ``unlawful enemy 
 combatant'' for purposes of military commissions, to extend statutory 
          habeas corpus to detainees, 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 ``National Security with Justice Act 
of 2007''.

SEC. 2. DEFINITIONS.

    In this Act--
            (1) the term ``aggrieved person''--
                    (A) means any individual subject by an officer or 
                agent of the United States either to extraterritorial 
                detention or rendition, except as authorized in this 
                Act; and
                    (B) does not include any individual who is an 
                international terrorist;
            (2) the term ``element of the intelligence community'' 
        means an element of the intelligence community specified in or 
        designated under section 3(4) of the National Security Act of 
        1947 (50 U.S.C. 401a(4));
            (3) the term ``extraterritorial detention'' means detention 
        of any individual by an officer or agent of the United States 
        outside the territorial jurisdiction of the United States;
            (4) the term ``Foreign Intelligence Surveillance Court'' 
        means the court established under section 103(a) of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a));
            (5) the term ``Geneva Conventions'' means--
                    (A) the Convention for the Amelioration of the 
                Condition of the Wounded and Sick in Armed Forces in 
                the Field, done at Geneva August 12, 1949 (6 UST 3114);
                    (B) the Convention for the Amelioration of the 
                Condition of the Wounded, Sick, and Shipwrecked Members 
                of the Armed Forces at Sea, done at Geneva August 12, 
                1949 (6 UST 3217);
                    (C) the Convention Relative to the Treatment of 
                Prisoners of War, done at Geneva August 12, 1949 (6 UST 
                3316); and
                    (D) the Convention Relative to the Protection of 
                Civilian Persons in Time of War, done at Geneva August 
                12, 1949 (6 UST 3516);
            (6) the term ``international terrorist'' means--
                    (A) any person, other than a United States person, 
                who engages in international terrorism or activities in 
                preparation therefor; and
                    (B) any person who knowingly aids or abets any 
                person in the conduct of activities described in 
                subparagraph (A) or knowingly conspires with any person 
                to engage in activities described in subparagraph (A);
            (7) the terms ``international terrorism'' and ``United 
        States person'' have the meanings given those terms in section 
        101 of the Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1801);
            (8) the term ``officer or agent of the United States'' 
        includes any officer, employee, agent, contractor, or 
        subcontractor acting for or on behalf of the United States; and
            (9) the terms ``render'' and ``rendition'', relating to an 
        individual, mean that an officer or agent of the United States 
        transfers that individual from the legal jurisdiction of the 
        United States or a foreign country to a different legal 
        jurisdiction (including the legal jurisdiction of the United 
        States or a foreign country) without authorization by treaty or 
        by the courts of either such jurisdiction, except under an 
        order of rendition issued under section 104.

SEC. 3. TABLE OF CONTENTS.

    The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Definitions.
Sec. 3. Table of contents.
           TITLE I--EXTRATERRITORIAL DETENTION AND RENDITION

Sec. 101. Prohibition on extraterritorial detention.
Sec. 102. Prohibition on rendition.
Sec. 103. Application for an order of rendition.
Sec. 104. Issuance of an order of rendition.
Sec. 105. Authorizations and orders for emergency detention.
Sec. 106. Uniform Standards for the Interrogation of Individuals 
                            Detained by the Government of the United 
                            States.
Sec. 107. Protection of United States Government Personnel Engaged in 
                            an Interrogation.
Sec. 108. Monitoring and reporting regarding the treatment, conditions 
                            of confinement, and status of legal 
                            proceedings of individuals rendered to 
                            foreign governments.
Sec. 109. Report to Congress.
Sec. 110. Civil liability.
Sec. 111. Additional resources for foreign intelligence surveillance 
                            court.
Sec. 112. Rule of construction.
Sec. 113. Authorization of appropriations.
                       TITLE II--ENEMY COMBATANTS

Sec. 201. Modification of definition of ``unlawful enemy combatant'' 
                            for purposes of military commissions.
                        TITLE III--HABEAS CORPUS

Sec. 301. Extending statutory habeas corpus to detainees.

           TITLE I--EXTRATERRITORIAL DETENTION AND RENDITION

SEC. 101. PROHIBITION ON EXTRATERRITORIAL DETENTION.

    (a) In General.--Except as provided in subsection (b), no officer 
or agent of the United States shall engage in the extraterritorial 
detention of any individual.
    (b) Exceptions.--This section shall not apply to--
            (1) an individual detained and timely transferred to a 
        foreign legal jurisdiction or the legal jurisdiction of the 
        United States under an order of rendition issued under section 
        104 or an emergency authorization under section 105;
            (2) an individual--
                    (A) detained by the Armed Forces of the United 
                States in accordance with United States Army Regulation 
                190-8 (1997), or any successor regulation certified by 
                the Secretary of Defense; and
                    (B) detained by the Armed Forces of the United 
                States--
                            (i) under circumstances governed by, and in 
                        accordance with, the Geneva Conventions;
                            (ii) in accordance with United Nations 
                        Security Council Resolution 1546 (2004) and 
                        United Nations Security Council Resolution 1723 
                        (2004);
                            (iii) at the Bagram, Afghanistan detention 
                        facility; or
                            (iv) at the Guantanamo Bay, Cuba detention 
                        center on the date of enactment of this Act;
            (3) an individual detained by the Armed Forces of the 
        United States under circumstances governed by, and in 
        accordance with chapter 47 of title 10, United States Code (the 
        Uniform Code of Military Justice);
            (4) an individual detained by the Armed Forces of the 
        United States subject to an agreement with a foreign government 
        and in accordance with the relevant laws of that foreign 
        country when the Armed Forces of the United States are 
        providing assistance to that foreign government; or
            (5) an individual detained pursuant to a peacekeeping 
        operation authorized by the United Nations Security Council 
        acting under Chapter VII of the Charter of the United Nations.

SEC. 102. PROHIBITION ON RENDITION.

    (a) In General.--Except as provided in subsection (b), no officer 
or agent of the United States shall render or participate in the 
rendition of any individual.
    (b) Exceptions.--This section shall not apply to--
            (1) an individual rendered under an order of rendition 
        issued under section 104;
            (2) an individual detained and transferred by the Armed 
        Forces of the United States under circumstances governed by, 
        and in accordance with, the Geneva Conventions;
            (3) an individual--
                    (A) for whom an attorney for the United States or 
                for any State has filed a criminal indictment, criminal 
                information, or any similar criminal charging document 
                in any district court of the United States or criminal 
                court of any State; and
                    (B) who is timely transferred to the United States 
                for trial;
            (4) an individual--
                    (A) who was convicted of a crime in any State or 
                Federal court;
                    (B) who--
                            (i) escaped from custody prior to the 
                        expiration of the sentence imposed; or
                            (ii) violated the terms of parole, 
                        probation, or supervised release; and
                    (C) who is promptly returned to the United States--
                            (i) to complete the term of imprisonment; 
                        or
                            (ii) for trial for escaping imprisonment or 
                        violating the terms of parole or supervised 
                        release; or
            (5) an individual detained by the United States at the 
        Guantanamo Bay, Cuba detention center on the date of enactment 
        of this Act who is transferred to a foreign legal jurisdiction.

SEC. 103. APPLICATION FOR AN ORDER OF RENDITION.

    (a) In General.--A Federal officer or agent may make an application 
for an order of rendition in writing, upon oath or affirmation, to a 
judge of the Foreign Intelligence Surveillance Court, if the Attorney 
General of the United States or the Deputy Attorney General of the 
United States determines that the requirements under this title for 
such an application have been satisfied.
    (b) Contents.--Each application under subsection (a) shall 
include--
            (1) the identity of the Federal officer or agent making the 
        application;
            (2) a certification that the Attorney General of the United 
        States or the Deputy Attorney General of the United States has 
        approved the application;
            (3) the identity of the specific individual to be rendered;
            (4) a statement of the facts and circumstances relied upon 
        by the applicant to justify the good faith belief of the 
        applicant that--
                    (A) the individual to be rendered is an 
                international terrorist;
                    (B) the country to which the individual is to be 
                rendered will not subject the individual to torture or 
                cruel, inhuman, or degrading treatment, within the 
                meaning of the United Nations Convention Against 
                Torture and Other Cruel, Inhuman or Degrading Treatment 
                or Punishment, done at New York on December 10, 1984;
                    (C) the country to which the individual is to be 
                rendered will timely initiate legal proceedings against 
                that individual that comport with fundamental notions 
                of due process; and
                    (D) rendition of that individual is important to 
                the national security of the United States; and
            (5) a full and complete statement regarding--
                    (A) whether ordinary legal procedures for the 
                transfer of custody of the individual to be rendered 
                have been tried and failed; or
                    (B) the facts and circumstances that justify the 
                good faith belief of the applicant that ordinary legal 
                procedures reasonably appear to be--
                            (i) unlikely to succeed if tried; or
                            (ii) unlikely to adequately protect 
                        intelligence sources or methods.
    (c) Technical and Conforming Amendment.--Section 103 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended by 
adding at the end the following:
    ``(g) The court established under subsection (a) may hear an 
application for and issue, and the court established under subsection 
(b) may review the issuing or denial of, an order of rendition under 
section 104 of the National Security with Justice Act of 2007.''.

SEC. 104. ISSUANCE OF AN ORDER OF RENDITION.

    (a) In General.--Upon filing of an application under section 103, a 
judge of the Foreign Intelligence Surveillance Court shall enter an ex 
parte order as requested or as modified approving the rendition, if the 
judge finds that--
            (1) the Attorney General of the United States or the Deputy 
        Attorney General of the United States has approved the 
        application for rendition;
            (2) the application has been made by a Federal officer or 
        agent;
            (3) the application establishes probable cause to believe 
        that the individual to be rendered is an international 
        terrorist;
            (4) ordinary legal procedures for transfer of custody of 
        the individual have been tried and failed or reasonably appear 
        to be unlikely to succeed for any of the reasons described in 
        section 103(b)(5)(B);
            (5) the application, and such other information as is 
        available to the judge, including reports of the Department of 
        State and the United Nations Committee Against Torture and 
        information concerning the specific characteristics and 
        circumstances of the individual, establish a substantial 
        likelihood that the country to which the individual is to be 
        rendered will not subject the individual to torture or to 
        cruel, inhuman, or degrading treatment, within the meaning of 
        the United Nations Convention Against Torture and Other Cruel, 
        Inhuman or Degrading Treatment or Punishment, done at New York 
        on December 10, 1984;
            (6) the application, and such other information as is 
        available to the judge, establish reason to believe that the 
        country to which the individual is to be rendered will timely 
        initiate legal proceedings against that individual that comport 
        with fundamental notions of due process; and
            (7) the application establishes reason to believe that 
        rendition of the individual to be rendered is important to the 
        national security of the United States.
    (b) Appeal.--The Government may appeal the denial of an application 
for an order under subsection (a) to the court of review established 
under section 103(b) of the Foreign Intelligence Surveillance Act of 
1978 (50 U.S.C. 1803(b)), and further proceedings with respect to that 
application shall be conducted in a manner consistent with that section 
103(b).

SEC. 105. AUTHORIZATIONS AND ORDERS FOR EMERGENCY DETENTION.

    (a) In General.--Notwithstanding any other provision of this title, 
and subject to subsection (b), the President or the Director of 
National Intelligence may authorize the Armed Forces of the United 
States or an element of the intelligence community, acting within the 
scope of existing authority, to detain an international terrorist in a 
foreign jurisdiction if the President or the Director of National 
Intelligence reasonably determines that--
            (1) failure to detain that individual will result in a risk 
        of imminent death or imminent serious bodily injury to any 
        individual or imminent damage to or destruction of any United 
        States facility; and
            (2) the factual basis for issuance of an order of rendition 
        under paragraphs (3) and (7) of section 104(a) exists.
    (b) Notice and Application.--The President or the Director of 
National Intelligence may authorize an individual be detained under 
subsection (a) if--
            (1) the President or the Director of National Intelligence, 
        or the designee of the President or the Director of National 
        Intelligence, at the time of such authorization, immediately 
        notifies the Foreign Intelligence Surveillance Court that the 
        President or the Director of National Intelligence has 
        determined to authorize that an individual be detained under 
        subsection (a); and
            (2) an application in accordance with this title is made to 
        the Foreign Intelligence Surveillance Court as soon as 
        practicable, but not more than 72 hours after the President or 
        the Director of National Intelligence authorizes that 
        individual to be detained.
    (c) Emergency Rendition Prohibited.--The President or the Director 
of National Intelligence may not authorize the rendition to a foreign 
jurisdiction of, and the Armed Forces of the United States or an 
element of the intelligence community may not render to a foreign 
jurisdiction, an individual detained under this section, unless an 
order under section 104 authorizing the rendition of that individual 
has been obtained.
    (d) Nondelegation.--Except as provided in this section, the 
authority and duties of the President or the Director of National 
Intelligence under this section may not be delegated.

SEC. 106. UNIFORM STANDARDS FOR THE INTERROGATION OF INDIVIDUALS 
              DETAINED BY THE GOVERNMENT OF THE UNITED STATES.

    (a) In General.--No individual in the custody or under the 
effective control of an officer or agent of the United States or 
detained in a facility operated by or on behalf of the Department of 
Defense, the Central Intelligence Agency, or any other agency of the 
Government of the United States shall be subject to any treatment or 
technique of interrogation not authorized by and listed in United 
States Army Field Manual 2-22.3, entitled ``Human Intelligence 
Collector Operations''.
    (b) Applicability.--Subsection (a) shall not apply with respect to 
any individual in the custody or under the effective control of the 
Government of the United States based on--
            (1) an arrest or conviction for violating Federal criminal 
        law; or
            (2) an alleged or adjudicated violation of the immigration 
        laws of the United States.
    (c) Construction.--Nothing in this section may be construed to 
diminish the rights under the Constitution of the United States of any 
individual in the custody or within the physical jurisdiction of the 
Government of the United States.

SEC. 107. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN 
              AN INTERROGATION.

    (a) Protection of United States Government Personnel.--In a civil 
action or criminal prosecution against an officer or agent of the 
United States relating to an interrogation, it shall be a defense that 
such officer or agent of the United States complied with section 106.
    (b) Applicability.--Subsection (a) shall not apply with respect to 
any civil action or criminal prosecution relating to the interrogation 
of an individual in the custody or under the effective control of the 
Government of the United States based on--
            (1) an arrest or conviction for violating Federal criminal 
        law; or
            (2) an alleged or adjudicated violation of the immigration 
        laws of the United States.
    (c) Provision of Counsel.--In any civil action or criminal 
prosecution arising from the alleged use of an authorized interrogation 
practice by an officer or agent of the United States, the Government of 
the United States may provide or employ counsel, and pay counsel fees, 
court costs, bail, and other expenses incident to representation.
    (d) Construction.--Nothing in this section may be construed--
            (1) to limit or extinguish any defense or protection from 
        suit, civil or criminal liability, or damages otherwise 
        available to a person or entity; or
            (2) to provide immunity from prosecution for any criminal 
        offense by the proper authorities.

SEC. 108. MONITORING AND REPORTING REGARDING THE TREATMENT, CONDITIONS 
              OF CONFINEMENT, AND STATUS OF LEGAL PROCEEDINGS OF 
              INDIVIDUALS RENDERED TO FOREIGN GOVERNMENTS.

    (a) In General.--The Secretary of State shall--
            (1) regularly monitor the treatment of, the conditions of 
        confinement of, and the progress of legal proceedings against 
        an individual rendered to a foreign legal jurisdiction under 
        section 104; and
            (2) not later than 6 months after the date of enactment of 
        this Act, and every 6 months thereafter, submit to the Select 
        Committee on Intelligence of the Senate and the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives a report detailing the treatment of, the 
        conditions of confinement of, and the progress of legal 
        proceedings against any individual rendered to a foreign legal 
        jurisdiction under section 104.
    (b) Applicability.--The Secretary of State shall include in the 
reports required under subsection (a)(2) information relating to the 
treatment of, the conditions of confinement of, and the progress of 
legal proceedings against an individual rendered to a foreign legal 
jurisdiction under section 104 during the period beginning on the date 
that individual was rendered to a foreign legal jurisdiction under 
section 104 and ending on the date that individual is released from 
custody by that foreign legal jurisdiction.

SEC. 109. REPORT TO CONGRESS.

    The Attorney General shall--
            (1) submit to the Select Committee on Intelligence of the 
        Senate and the Permanent Select Committee on Intelligence of 
        the House of Representatives an annual report that contains--
                    (A) the total number of applications made for an 
                order of rendition under section 104;
                    (B) the total number of such orders granted, 
                modified, or denied;
                    (C) the total number of emergency authorizations 
                issued under section 105; and
                    (D) such other information as requested by the 
                Select Committee on Intelligence of the Senate or the 
                Permanent Select Committee on Intelligence of the House 
                of Representatives; and
            (2) make available to the Select Committee on Intelligence 
        of the Senate and the Permanent Select Committee on 
        Intelligence of the House of Representatives a copy of each 
        application made and order issued under this title.

SEC. 110. CIVIL LIABILITY.

    (a) In General.--An aggrieved person shall have a cause of action 
against the head of the department or agency that subjected that 
aggrieved person to extraterritorial detention or a rendition in 
violation of this title and shall be entitled to recover--
            (1) actual damages, but not less than liquidated damages of 
        $1,000 for each day of the violation;
            (2) punitive damages; and
            (3) reasonable attorney's fees.
    (b) Jurisdiction.--The United States District Court for the 
District of Columbia shall have original jurisdiction over any claim 
under this section.

SEC. 111. ADDITIONAL RESOURCES FOR FOREIGN INTELLIGENCE SURVEILLANCE 
              COURT.

    (a) Authority for Additional Judges.--Section 103(a) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) is amended--
            (1) by inserting ``(1)'' after ``(a)'';
            (2) in paragraph (1), as so designated, by inserting ``at 
        least'' before ``seven of the United States judicial 
        circuits'';
            (3) by striking ``If any judge so designated'' and 
        inserting the following:
    ``(3) If any judge so designated''; and
            (4) by inserting after paragraph (1), as so designated, the 
        following:
    ``(2) In addition to the judges designated under paragraph (1), the 
Chief Justice of the United States may designate as judges of the court 
established by paragraph (1) such judges appointed under article III of 
the Constitution of the United States as the Chief Justice determines 
appropriate in order to provide for the prompt and timely consideration 
of applications under sections 103 of the National Security with 
Justice Act of 2007 for orders of rendition under section 104 of that 
Act. Any judge designated under this paragraph shall be designated 
publicly.''.
    (b) Additional Legal and Other Personnel for Foreign Intelligence 
Surveillance Court.--There is authorized for the Foreign Intelligence 
Surveillance Court such additional staff personnel as may be necessary 
to facilitate the prompt processing and consideration by that Court of 
applications under section 103 for orders of rendition under section 
104 approving rendition of an international terrorist. The personnel 
authorized by this section are in addition to any other personnel 
authorized by law.

SEC. 112. RULE OF CONSTRUCTION.

    Nothing in this title may be construed as altering or adding to 
existing authorities for the extraterritorial detention or rendition of 
any individual.

SEC. 113. AUTHORIZATION OF APPROPRIATIONS.

    There is authorized to be appropriated such sums as may be 
necessary to carry out this title and the amendments made by this 
title.

                       TITLE II--ENEMY COMBATANTS

SEC. 201. MODIFICATION OF DEFINITION OF ``UNLAWFUL ENEMY COMBATANT'' 
              FOR PURPOSES OF MILITARY COMMISSIONS.

    Section 948a(1)(A) of title 10, United States Code, is amended--
            (1) in the matter preceding clause (i), by striking 
        ``means''; and
            (2) by striking clauses (i) and (ii) and inserting the 
        following:
                    ``(i) means a person who is not a lawful enemy 
                combatant and who--
                            ``(I) has engaged in hostilities against 
                        the United States; or
                            ``(II) has purposefully and materially 
                        supported hostilities against the United States 
                        (other than hostilities engaged in as a lawful 
                        enemy combatant); and
                    ``(ii) does not include any person who is--
                            ``(I) a citizen of the United States or 
                        legally admitted to the United States; and
                            ``(II) taken into custody in the United 
                        States.''.

                        TITLE III--HABEAS CORPUS

SEC. 301. EXTENDING STATUTORY HABEAS CORPUS TO DETAINEES.

    (a) In General.--Section 2241 of title 28, United States Code, is 
amended by striking subsection (e) and inserting the following:
    ``(e)(1) The United States District Court for the District of 
Columbia shall have jurisdiction to hear or consider an application for 
a writ of habeas corpus filed by or on behalf of any person detained by 
the United States who has been--
            ``(A) determined by the United States to have been properly 
        detained as an enemy combatant; or
            ``(B) detained by the United States for more than 90 days 
        without such a determination.
    ``(2) The United States District Court for the District of Columbia 
shall have jurisdiction to hear or consider an application for a writ 
of habeas corpus filed by or on behalf of any person detained by the 
United States who has been tried by military commission established 
under chapter 47A of title 10, United States Code, and has exhausted 
the appellate procedure under subchapter VI of that chapter.''.
    (b) Technical and Conforming Amendments.--
            (1) In general.--Subchapter VI of chapter 47A of title 10, 
        United States Code, is amended--
                    (A) by striking section 950g;
                    (B) in section 950h--
                            (i) in subsection (a), by adding at the end 
                        the following: ``Appointment of appellate 
                        counsel under this subsection shall be for 
                        purposes of this chapter only, and not for any 
                        proceedings relating to an application for a 
                        writ of habeas corpus relating to any matter 
                        tried by a military commission.''; and
                            (ii) in subsection (c), by striking ``, the 
                        United States Court of Appeals for the District 
                        of Columbia, and the Supreme Court,'';
                    (C) in section 950j--
                            (i) by striking ``(a) Finality.--''; and
                            (ii) by striking subsection (b); and
                    (D) in the table of sections at the beginning of 
                that subchapter, by striking the item relating to 
                section 950g.
            (2) Detainee treatment acts.--
                    (A) In general.--Section 1005(e) of the Detainee 
                Treatment Act of 2005 (Public Law 109-148; 119 Stat. 
                2742; 10 U.S.C. 801 note) is amended--
                            (i) in subsection (e)--
                                    (I) by striking paragraph (2); and
                                    (II) by redesignating paragraphs 
                                (3) and (4) as paragraphs (2) and (3), 
                                respectively; and
                            (ii) in subsection (h)(2)--
                                    (I) by striking ``Paragraphs (2) 
                                and (3)'' and inserting ``Paragraph 
                                (2)''; and
                                    (II) by striking ``one of such 
                                paragraphs'' and inserting ``that 
                                paragraph''.
                    (B) Other amendments.--Section 1405 of the Detainee 
                Treatment Act of 2005 (Public Law 109-163; 119 Stat. 
                3475; 10 U.S.C. 801 note) is amended--
                            (i) in subsection (e)--
                                    (I) by striking paragraph (2); and
                                    (II) by redesignating paragraphs 
                                (3) and (4) as paragraphs (2) and (3), 
                                respectively; and
                            (ii) in subsection (h)(2)--
                                    (I) by striking ``Paragraphs (2) 
                                and (3)'' and inserting ``Paragraph 
                                (2)''; and
                                    (II) by striking ``one of such 
                                paragraphs'' and inserting ``that 
                                paragraph''.
    (c) Rule of Construction.--Notwithstanding subsection (a), no 
court, justice, or judge shall have jurisdiction to consider an action 
described in subparagraph (a) brought by an alien who is in the custody 
of the United States, in a zone of active hostility involving the 
United States Armed Forces, and where the United States is implementing 
United States Army Reg 190-8 (1997) or any successor, as certified by 
the Secretary of Defense.
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