II 

111TH CONGRESS 

2D SESSION S. 3081 

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 SENATE OF THE UNITED STATES 

MARCH 4, 2010 

Mr. MCCAIN (for himself, Mr. LIEBERMAN, Mr. INHOFE, Mr. BROWN of Massachusetts, Mr. WICKER, Mr. CHAMBLISS, Mr. LEMIEUX, Mr. SESSIONS, 

and Mr. VITTER) introduced the following bill; which was read twice and 

referred to the Committee on the Judiciary 

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) REASONABLE DELAY FOR INTELLIGENCE AC17 TIVITIES.—An individual who may be an unprivileged 

18 enemy belligerent and who is initially captured or other19 wise comes into the custody or under the effective control 

20 of the United States by an intelligence agency of the 

21 United States may be held, interrogated, or transported 

22 by the intelligence agency and placed into military custody 

23 for purposes of this Act if retained by the United States 

24 within a reasonable time after the capture or coming into 

25 the custody or effective control by the intelligence agency, 

26 giving due consideration to operational needs and requireVerDate Nov 24 2008 04:24 Mar 05, 2010 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3081.IS S3081

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1 ments to avoid compromise or disclosure of an intelligence 

2 mission or intelligence sources or methods. 

3 SEC. 3. INTERROGATION AND DETERMINATION OF STATUS 

4 OF SUSPECTED UNPRIVILEGED ENEMY BEL5 LIGERENTS. 

6 (a) ESTABLISHMENT OF INTERROGATION GROUPS.— 

7 (1) ESTABLISHMENT AUTHORIZED.—The Presi8 dent is authorized to establish an interagency team 

9 for purposes as follows: 

10 (A) To interrogate under subsection (b) in11 dividuals placed in military custody under sec12 tion 2. 

13 (B) To make under subsection (c)(1) a 

14 preliminary determination of the status of indi15 viduals described in section 2. 

16 (2) COMPOSITION.—Each interagency team 

17 under this subsection shall be composed of such per18 sonnel of the Executive Branch having expertise in 

19 matters relating to national security, terrorism, in20 telligence, interrogation, or law enforcement as the 

21 President considers appropriate. The members of 

22 any particular interagency team may vary depending 

23 on the skills most relevant to a particular case. 

24 (3) DESIGNATIONS.— 


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1 (A) HIGH-VALUE DETAINEE.—An indi2 vidual placed in military custody under section 

3 2 shall, while subject to interrogation and de4 termination of status under this section, be re5 ferred to as a ‘‘high-value detainee’’ if the indi6 vidual meets the criteria for treatment as such 

7 established in the regulations required by sub8 section (d). 

9 (B) HIGH-VALUE DETAINEE INTERROGA10 TION GROUP.—An interagency team established 

11 under this subsection shall be known as a 

12 ‘‘high-value detainee interrogation group’’. 

13 (b) INTERROGATIONS.— 

14 (1) INTERROGATIONS TO BE CONDUCTED BY

15 HIGH-VALUE DETAINEE INTERROGATION GROUP.—A 

16 high-value detainee interrogation group established 

17 under this section shall conduct the interrogations of 

18 each high-value detainee. 

19 (2) UTILIZATION OF OTHER PERSONNEL.—A 

20 high-value detainee interrogation group may utilize 

21 military and intelligence personnel, and Federal, 

22 State, and local law enforcement personnel, in con23 ducting interrogations of a high-value detainee. The 

24 utilization of such personnel for the interrogation of 

25 a detainee shall not alter the responsibility of the inVerDate Nov 24 2008 04:24 Mar 05, 2010 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3081.IS S3081

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1 terrogation group for the coordination within the 

2 Executive Branch of the interrogation of the de3 tainee or the determination of status and disposition 

4 of the detainee under this Act. 

5 (3) INAPPLICABILITY OF CERTAIN STATEMENT

6 AND RIGHTS.—A individual who is suspected of 

7 being an unprivileged enemy belligerent shall not, 

8 during interrogation under this subsection, be pro9 vided the statement required by Miranda v. Arizona 

10 (384 U.S. 436 (1966)) or otherwise be informed of 

11 any rights that the individual may or may not have 

12 to counsel or to remain silent consistent with Mi13 randa v. Arizona. 

14 (c) DETERMINATIONS OF STATUS.— 

15 (1) PRELIMINARY DETERMINATION BY HIGH16 VALUE DETAINEE INTERROGATION GROUP.—The 

17 high-value detainee interrogation group responsible 

18 for interrogating a high-value detainee under sub19 section (b) shall make a preliminary determination 

20 whether or not the detainee is an unprivileged enemy 

21 belligerent. The interrogation group shall make such 

22 determination based on the result of its interroga23 tion of the individual and on all intelligence informa24 tion available to the interrogation group. The inter25 rogation group shall, after consultation with the DiVerDate Nov 24 2008 04:24 Mar 05, 2010 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3081.IS S3081

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1 rector of National Intelligence, the Director of the 

2 Federal Bureau of Investigation, and the Director of 

3 the Central Intelligence Agency, submit such deter4 mination to the Secretary of Defense and the Attor5 ney General. 

6 (2) FINAL DETERMINATION.—As soon as pos7 sible after receipt of a preliminary determination of 

8 status with respect to a high-value detainee under 

9 paragraph (1), the Secretary of Defense and the At10 torney General shall jointly submit to the President 

11 and to the appropriate committees of Congress a 

12 final determination whether or not the detainee is an 

13 unprivileged enemy belligerent for purposes of this 

14 Act. In the event of a disagreement between the Sec15 retary of Defense and the Attorney General, the 

16 President shall make the final determination. 

17 (3) DEADLINE FOR DETERMINATIONS.—All ac18 tions required regarding a high-value detainee under 

19 this subsection shall, to the extent practicable, be 

20 completed not later than 48 hours after the detainee 

21 is placed in military custody under section 2. 

22 (d) REGULATIONS.— 

23 (1) IN GENERAL.—The operations and activities 

24 of high-value detainee interrogation groups under 

25 this section shall be governed by such regulations 


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1 and guidance as the President shall establish for 

2 purposes of implementing this section. The regula3 tions shall specify the officer or officers of the Exec4 utive Branch responsible for determining whether an 

5 individual placed in military custody under section 2 

6 meets the criteria for treatment as a high-value de7 tainee for purposes of interrogation and determina8 tion of status by a high-value interrogation group 

9 under this section. 

10 (2) CRITERIA FOR DESIGNATION OF INDIVID11 UALS AS HIGH-VALUE DETAINEES.—The regulations 

12 required by this subsection shall include criteria for 

13 designating an individual as a high-value detainee 

14 based on the following: 

15 (A) The potential threat the individual 

16 poses for an attack on civilians or civilian facili17 ties within the United States or upon United 

18 States citizens or United States civilian facili19 ties abroad at the time of capture or when com20 ing under the custody or control of the United 

21 States. 

22 (B) The potential threat the individual 

23 poses to United States military personnel or 

24 United States military facilities at the time of 


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1 capture or when coming under the custody or 

2 control of the United States. 

3 (C) The potential intelligence value of the 

4 individual. 

5 (D) Membership in al Qaeda or in a ter6 rorist group affiliated with al Qaeda. 

7 (E) Such other matters as the President 

8 considers appropriate. 

9 (3) PARAMOUNT PURPOSE OF INTERROGA10 TIONS.—The regulations required by this subsection 

11 shall provide that the paramount purpose of the in12 terrogation of high-value detainees under this Act 

13 shall be the protection of United States civilians and 

14 United States civilian facilities through thorough 

15 and professional interrogation for intelligence pur16 poses. 

17 (4) SUBMITTAL TO CONGRESS.—The President 

18 shall submit the regulations and guidance required 

19 by this subsection to the appropriate committees of 

20 Congress not later than 60 days after the date of 

21 the enactment of this Act. 

22 SEC. 4. LIMITATION ON PROSECUTION OF ALIEN 

23 UNPRIVILEGED ENEMY BELLIGERENTS. 

24 (a) LIMITATION.—No funds appropriated or other25 wise made available to the Department of Justice may be 


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

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

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

4 unprivileged enemy belligerent under section 3(c)(2). 

5 (b) APPLICABILITY PENDING FINAL DETERMINA6 TION OF STATUS.—While a final determination on the sta7 tus of an alien high-value detainee is pending under sec8 tion 3(c)(2), the alien shall be treated as an unprivileged 

9 enemy belligerent for purposes of subsection (a). 

10 SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED 

11 ENEMY BELLIGERENTS. 

12 An individual, including a citizen of the United 

13 States, determined to be an unprivileged enemy belligerent 

14 under section 3(c)(2) in a manner which satisfies Article 

15 5 of the Geneva Convention Relative to the Treatment of 

16 Prisoners of War may be detained without criminal 

17 charges and without trial for the duration of hostilities 

18 against the United States or its coalition partners in which 

19 the individual has engaged, or which the individual has 

20 purposely and materially supported, consistent with the 

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

22 force provided by Congress pertaining to such hostilities. 

23 SEC. 6. DEFINITIONS. 

24 In this Act: 


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1 (1) ACT OF TERRORISM.—The term ‘‘act of ter2 rorism’’ means an act of terrorism as that term is 

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

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

5 (2) ALIEN.—The term ‘‘alien’’ means an indi6 vidual who is not a citizen of the United States. 

7 (3) APPROPRIATE COMMITTEES OF CON8 GRESS.—The term ‘‘appropriate committees of Con9 gress’’ means— 

10 (A) the Committee on Armed Services, the 

11 Committee on Homeland Security and Govern12 mental Affairs, the Committee on the Judiciary, 

13 and the Select Committee on Intelligence of the 

14 Senate; and 

15 (B) the Committee on Armed Services, the 

16 Committee on Homeland Security, the Com17 mittee on the Judiciary, and the Permanent Se18 lect Committee on Intelligence of the House of 

19 Representatives. 

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

21 court’’ means a court of the United States estab22 lished under Article III of the Constitution of the 

23 United States. 

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

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


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1 the United States, means any State or armed force 

2 directly engaged along with the United States in 

3 such hostilities or providing direct operational sup4 port to the United States in connection with such 

5 hostilities. 

6 (6) GENEVA CONVENTION RELATIVE TO THE

7 TREATMENT OF PRISONERS OF WAR.—The term 

8 ‘‘Geneva Convention Relative to the Treatment of 

9 Prisoners of War’’ means the Geneva Convention 

10 Relative to the Treatment of Prisoners of War, done 

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

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

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

14 includes a deliberate attack upon civilians and civil15 ian targets protected by the laws of war. 

16 (8) PRIVILEGED BELLIGERENT.—The term 

17 ‘‘privileged belligerent’’ means an individual belong18 ing to one of the eight categories enumerated in Ar19 ticle 4 of the Geneva Convention Relative to the 

20 Treatment of Prisoners of War. 

21 (9) UNPRIVILEGED ENEMY BELLIGERENT.— 

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

23 individual (other than a privileged belligerent) who— 

24 (A) has engaged in hostilities against the 

25 United States or its coalition partners; 


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1 (B) has purposely and materially sup2 ported hostilities against the United States or 

3 its coalition partners; or 

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

5 capture. 

6 SEC. 7. EFFECTIVE DATE. 

7 This Act shall take effect on the date of the enact8 ment of this Act, and shall apply with respect to individ9 uals who are captured or otherwise come into the custody 

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

11 after that date. 

Æ 


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