under section 202(b) of this Act for detention as an 
imperative threat to security. 
(2) STANDARD
OF
PROOF.—In a proceeding 
under this section, the burden of proof shall be on 
the Government to demonstrate by a preponderance 
of the evidence that a covered individual detained 
under section 202 meets the requirements under sec-
tion 202(b). 
(b) DEFERENCE
TO EXECUTIVE.—In determining 
whether a foreign power is a foreign power against which 
the use of military force was authorized under the Author-
ization for Use of Military Force (Public Law 107–40; 115 
Stat. 224; 50 U.S.C. 1541 note), the District Court shall 
give deference to the identification of an organization by 
the Director of National Intelligence in a report submitted 
under section 406 of this Act. 
(c) HEARING PROCEDURES.— 
(1) IN GENERAL.—In any proceeding under this 
section, the Attorney General shall submit a written 
declaration supporting the contention that the cov-
ered individual meets the requirements under section 
202(b) for detention as an imperative threat to secu-
rity. 
(2) DISCOVERY.— 
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(A) SCOPE
OF
DISCOVERY.—Subject to 
subparagraph (B), a covered individual may re-
quest from the Government as discovery relat-
ing to a proceeding under this section, and if 
requested by the covered individual the Govern-
ment shall provide— 
(i) any document or object referenced 
in the petition or written declaration sub-
mitted by the Government under this sec-
tion; 
(ii) any evidence in the Government’s 
possession that tends materially to under-
mine information in the petition or written 
declaration submitted by the Government 
under this section; 
(iii) any statement, whether oral, writ-
ten, or recorded, made or adopted by the 
covered individual that is in the Govern-
ment’s possession and both related and 
material to the information in the petition 
or written declaration submitted by the 
Government under this section; and 
(iv) any other evidence in the Govern-
ment’s possession that is both related and 
material to the information in the petition 
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or written declaration submitted by the 
Government under this section. 
(B) PROTECTION OF NATIONAL SECURITY 
INFORMATION.— 
(i) GENERALLY.—Classified informa-
tion shall be protected and is privileged 
from disclosure to the covered individual in 
proceedings under this section. The rule 
under this subparagraph applies to all 
stages of any proceeding under this sec-
tion. 
(ii) SUBSTITUTE.—If any information 
described in subparagraph (A) is classified, 
the attorney for the Government shall sub-
mit such information to the District Court 
and shall prepare for the court’s approval 
an unclassified summary of the specific 
classified evidence or a statement admit-
ting relevant facts that the specific classi-
fied information would tend to prove. The 
District Court shall approve the summary 
or statement if the District Court finds 
that it is sufficient to enable the detainee 
to prepare a defense. The Government 
shall deliver to the detainee a copy of the 
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unclassified summary or statement ap-
proved under this subparagraph. 
(iii) DISAPPROVAL.—In general, if an 
unclassified summary or statement is not 
approved by the District Court under 
clause (ii), the Government shall expedi-
tiously correct the deficiencies identified by 
the court and submit a revised unclassified 
summary. If the revised unclassified sum-
mary is not approved by the District 
Court, the proceeding shall be terminated. 
(iv) CLASSIFIED INFORMATION AVAIL-
ABLE TO COUNSEL FOR DETAINEE.—Clas-
sified information withheld from a detainee 
shall be available to properly cleared coun-
sel, if any, for the covered individual, and 
the District Court shall afford such prop-
erly cleared counsel the opportunity to ob-
ject to the adequacy of any substitute 
under clause (ii). If the Government de-
clines to make such information available 
to properly cleared counsel for the covered 
individual, the proceeding shall be termi-
nated unless the Government substitutes a 
statement admitting relevant facts that the 
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specific classified information would tend 
to prove and the District Court certifies 
that such statement is sufficient to provide 
the properly cleared counsel with substan-
tially the same ability to make a defense as 
would disclosure of the specific classified 
information. 
(v) INTERLOCUTORY
APPEAL.—The 
Government may take an interlocutory ap-
peal from a decision of the District Court 
relating to the disclosure of classified in-
formation subject to the same expedited 
procedures that would apply to such an ap-
peal under section 406 of the Classified In-
formation Procedures Act (18 U.S.C. 14 
App.). 
(3) WITNESS PRODUCTION.— 
(A) IN GENERAL.—To the maximum ex-
tent possible, proceedings under this section 
shall be decided on the basis of written plead-
ings and written declarations. 
(B) BASIS FOR IN-PERSON TESTIMONY.— 
The District Court shall grant a motion for oral 
testimony relating to an evidentiary hearing 
under this section when the District Court finds 
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that military and intelligence operations would 
not be substantially harmed by the production 
of the witness and that oral testimony would 
provide a material benefit to the resolution by 
the District Court of the disputed matter. The 
District Court shall allow witnesses stationed 
overseas or otherwise unavailable to appear in 
court to participate from remote locations 
through available technological means. 
(4) PUBLIC PROCEEDINGS.—To the maximum 
extent practicable, proceedings under this section 
shall be conducted in a fashion open to the public. 
The District Court shall have authority to close pro-
ceedings to ensure the security of classified informa-
tion. 
(5) CERTAIN EVIDENCE.— 
(A) IN GENERAL.—In determining whether 
a covered individual meets the requirements 
under section 202(b) for detention as an imper-
ative threat to security, the District Court may 
not consider any evidence obtained by a means 
that violates— 
(i) the Detainee Treatment Act of 
2005 (Public Law 109–148; 119 Stat. 
2739; 10 U.S.C. 801 note); or 
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(ii) Common Article 3 of the Geneva 
Conventions. Conduct that violates Com-
mon Article 3 includes, but is not limited 
to, the following techniques, each of which 
is prohibited by Army Field Manual 2– 
22.3: forcing a person to be naked, per-
form sexual acts, or pose in a sexual man-
ner; applying beatings, electric shocks, 
burns, or other forms of physical pain to 
the person; waterboarding the person; 
threatening the person with dogs; inducing 
hypothermia or heat injury; conducting a 
mock execution; and depriving the person 
of necessary food, water, or medical care. 
(B) OTHER
EVIDENCE.—The rules con-
cerning the admissibility of evidence in civil or 
criminal trials shall not apply to the presen-
tation and consideration of information at any 
evidentiary hearing under this section. To the 
maximum extent allowable under the Constitu-
tion, the District Court may consider any reli-
able and probative evidence, including hearsay 
from military, intelligence, and law enforcement 
sources that the District Court determines 
would be probative to a reasonable person. If 
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any hearsay evidence is admitted, the covered 
individual shall be entitled to offer evidence im-
peaching the credibility of the declarant. 
(6) ATTORNEYS.— 
(A) IN
GENERAL.—The District Court 
shall appoint an attorney to represent a covered 
individual in proceedings under this section, un-
less the covered individual has retained an at-
torney for such purposes. 
(B) REQUIREMENTS FOR ATTORNEYS.—An 
attorney may represent a covered individual in 
a proceeding under this section if the attor-
ney— 
(i) except as provided in subparagraph 
(E), has been determined to be eligible for 
access to classified information that is clas-
sified at the level Secret or higher, as re-
quired; and 
(ii) has signed a written agreement to 
comply with all applicable regulations or 
instructions for attorneys in proceedings 
under this section before the District 
Court, including any rules of court for con-
duct during the proceedings. 
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(C) CLASSIFIED
INFORMATION.—Any at-
torney for a covered individual shall protect any 
classified information received during the course 
of representation of the covered individual in 
accordance with all applicable law governing the 
protection of classified information. 
(D) SECURITY CLEARANCE LIST.—The At-
torney General shall establish a list of attorneys 
with appropriate security clearances who may 
represent covered individuals in proceedings 
under this section. 
(E) PRIVATE ATTORNEYS.—If an attorney 
retained by a covered individual for purposes of 
a proceeding under this section does not have 
the appropriate security clearances, the Govern-
ment may grant the attorney an appropriate 
clearance at its discretion, or the District Court 
shall assign an attorney on the list established 
under subparagraph (D) as cocounsel to rep-
resent the covered individual in all proceeding 
under this Act which require access to classified 
information on the part of counsel for the cov-
ered individual. 
(7) VIDEO
HEARINGS.—The District Court 
shall not require the presence of a covered individual 
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detained outside the United States for the purpose 
of any proceeding under this section. However, the 
District Court shall permit a covered individual to 
participate in all proceedings under this section to 
the extent consistent with the procedures for the 
protection of classified information and national se-
curity under this section. If the covered individual is 
detained outside the United States, the court shall 
allow him to participate from the location at which 
he is detained through available technological means. 
(8) LANGUAGES.—Any information relating to 
the District Court proceedings under this section, in-
cluding translation of any proceedings in which a 
covered individual participates, shall be provided to 
the covered individual in a language understood by 
the covered individual. 
(d) DETENTION.—If the District Court determines 
that a covered individual meets the requirements under 
section 202(b) for detention as an imperative threat to se-
curity, the District Court shall issue an order authorizing 
the Government to detain the covered individual for not 
more than 6 months. To the maximum extent practicable 
and consistent with the protection of classified informa-
tion, the District Court shall explain in an opinion avail-
able to the public the factual and legal basis for the deten-
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tion order. An order under this subsection may be renewed 
for additional periods of not more than 6 months if the 
District Court determines, after a hearing conducted in 
accordance with this section, that the covered individual 
continues to meet the requirements under section 202(b) 
for detention as an imperative threat to security. 
(e) JURISDICTION AND VENUE.—The District Court 
shall have exclusive jurisdiction over any petition under 
this Act. An action relating to a petition under this Act 
may only be brought in the District Court. 
TITLE III—TRANSPARENCY AND 
ACCOUNTABILITY OF AMER-
ICAN DETENTION FACILITIES 
SEC. 301. NOTIFICATION AND ACCESS OF INTERNATIONAL 
COMMITTEE OF THE RED CROSS WITH RE-
SPECT TO DETAINEES AT AMERICAN DETEN-
TION FACILITIES. 
(a) NOTIFICATION.—The head of a military service 
or department, or of a Federal department or agency, that 
has custody or effective control of the American military 
detention facility, or of any detainee held at such facility, 
shall, upon initial detention, notify the International Com-
mittee of the Red Cross (referred to in this section as the 
‘‘ICRC’’) of the custody or effective control of the detainee 
as soon as possible. 
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(b) ACCESS.—The head of a military service or de-
partment, or of a Federal department or agency, with ef-
fective control of the American detention facility, pursuant 
to subsection (a), shall ensure ICRC access to any de-
tainee within 24 hours of the receipt of an ICRC request 
to access the detainee. Access to the detainee shall con-
tinue pursuant to ICRC protocols and agreements reached 
between the ICRC and the head of a military service or 
department, or of a Federal department or agency, with 
effective control over the American detention facility. 
(c) SCOPE OF ACCESS.—The ICRC shall be provided 
access, in accordance with this section, to any physical lo-
cality at the American military detention facility, deter-
mined by the ICRC as relevant to the treatment of the 
detainee, including the detainee’s cell or room, interroga-
tion facilities or rooms, hospital or related health care fa-
cilities or rooms, or other locations not named in this sec-
tion. 
(d) CONSTRUCTION.—Nothing in this section shall be 
construed to— 
(1) limit the authority of a military service or 
department, a Federal law enforcement agency, or 
the intelligence community to detain an individual; 
or 
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(2) limit or otherwise affect any other rights or 
obligations which may arise under the Geneva Con-
ventions, other international agreements, or other 
laws, or to state all of the situations under which no-
tification to and access for the ICRC is required or 
allowed. 
SEC. 302. REPORT BY THE DEPARTMENT OF DEFENSE. 
The Inspector General of the Department of Defense 
shall submit to Congress an annual report on the condi-
tions of the facilities and detainees at the American deten-
tion facility. This report shall be in unclassified form but 
may include a classified annex. 
TITLE IV—HABEAS-EXCEPTION 
TREATMENT OF DETAINEES 
SEC. 401. FINDINGS. 
Congress makes the following findings: 
(1) International terrorists, including members 
of Al Qaeda, have carried out attacks on United 
States diplomatic and military personnel and facili-
ties abroad and on citizens and property within the 
United States and constitute a grave and sustained 
threat to the national security of the United States. 
(2) The ability of the United States to detain, 
prosecute, and convict individuals suspected of com-
mitting or supporting terrorism or of otherwise wag-
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ing hostilities against the United States, and by the 
nature of those hostilities violate the laws of armed 
conflict, is vital to the efforts to combat terrorism 
and to protect United States national security. 
(3) Attempts to implement a military tribunal 
system in accordance with Executive Order 13425, 
the Military Commissions Act of 2006 (Public Law 
109–366), or the President’s Military Order of No-
vember 13, 2001 (66 Fed. Reg. 57,833), have failed 
to achieve their stated mission of bringing suspected 
terrorists to justice. As of September 9, 2009, the 
tribunals and commissions established in connection 
with these efforts have yielded just three convictions, 
the first following a guilty plea by the defendant, 
and have failed to achieve the conviction of a single 
individual in connection with the terrorist attacks on 
the United States on September 11, 2001. 
(4) The United States civilian justice system al-
lows for the fair and speedy trial of individuals who 
engage in terrorist activities against the United 
States, who are enemy combatants, terrorists, or 
otherwise engaged in criminal acts, and there is an 
extensive legal framework providing jurisdiction over 
the offenses committed by such individuals. 
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(5) Since September 11, 2001, the United 
States civilian justice system has accumulated an 
impressive record of success in prosecuting and con-
victing individuals suspected of committing or sup-
porting terrorism, having convicted at least 145 such 
individuals, and is an essential and effective tool in 
combating international terrorism. 
(6) Existing laws and regulations, including the 
Classified Information Procedures Act (18 U.S.C. 
App. 3; Public Law 96–456), provide a detailed 
framework for protecting sensitive and classified in-
formation during the prosecution of cases involving 
terrorism offenses and related crimes. 
(7) In addition to the existing United States ci-
vilian and military justice systems, the Federal Gov-
ernment possesses other legal authorities that may 
be useful as tools in detaining and prosecuting inter-
national terrorists, including the authority to detain 
removable aliens under Federal immigration laws. 
SEC. 402. HABEAS-EXCEPTION TREATMENT OF DETAINEES. 
(a) DISPOSITION OF DETAINEES ENTITLED TO THE 
RIGHT OF HABEAS CORPUS REVIEW.—Not later than one 
year after the date of the enactment of this Act, covered 
individuals entitled to habeas corpus protections may be 
processed according to one of the following procedures: 
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(1) The detainee shall be charged with an of-
fense cognizable by a United States military or civil-
ian court and transferred to a military or Federal ci-
vilian detention facility in the United States for fur-
ther legal proceedings in the military or civilian jus-
tice system, provided that such a Federal military or 
civilian facility or section thereof has received the 
highest security rating available for such a facility. 
(2) The detainee shall be transferred to an 
international tribunal that has jurisdiction to hold a 
trial of such individual. 
(3) The detainee shall be transferred to the cus-
tody of the government of the individual’s country of 
citizenship or a different country, provided that such 
transfer is consistent with— 
(A) the Convention Against Torture and 
Other Forms of Cruel, Inhuman or Degrading 
Treatment or Punishment done at New York, 
December 10, 1984; 
(B) all relevant United States law; and 
(C) any other international obligation of 
the United States. 
(4) CONTINUED DETENTION.—If, based on the 
totality of circumstances, the President determines 
by a preponderance of evidence that a detainee 
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meets any of the criteria in Section 202(b), the de-
tainee may be held in continued detention in accord-
ance with this section or the law of armed conflict. 
(b) REPORTING REQUIREMENTS.— 
(1) REQUIREMENT
FOR
REPORT.—Not later 
than 90 days after the date of enactment of this 
Act, the President shall submit to Congress a report 
that describes the President’s plan to implement this 
section. 
(2) REQUIREMENT
TO
UPDATE.—Not later 
than 30 days after the date on which the President 
submits the report required under paragraph (1), 
and every 30 days thereafter, the President shall 
submit to Congress a follow-up report to ensure that 
Congress is fully informed of the steps taken to im-
plement this section. 
(c) CONSTRUCTION.— 
(1) IMMIGRATION STATUS.—The transfer of an 
individual under subsection (a) shall not be consid-
ered an entry into the United States for purposes of 
immigration status. 
(2) CUSTODY OF DETAINEE.—The Secretary of 
Homeland Security shall take custody of detainee, 
pending removal from the United States, if the de-
tainee is acquitted of all charges or, upon completion 
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of a detainee’s sentence, in accordance with section 
202, does not pose a threat to the United States. 
(3) NO ADDITIONAL DETENTION AUTHORITY.— 
Nothing in this section may be construed as altering 
or adding to existing authorities for, or restrictions 
on, the detention, or transfer of individuals in 
United States custody. 
SEC. 403. SENSE OF CONGRESS. 
It is the sense of Congress that the President— 
(1) should vigorously investigate and prosecute, 
to the full extent of the law, individuals and organi-
zations suspected of involvement with international 
terrorism, using all available assets of the United 
States civilian and military justice systems; 
(2) should carry out a review of the capacity of 
the United States criminal justice system to success-
fully investigate and prosecute individuals and orga-
nizations suspected of terrorism, including the ade-
quacy of existing Federal antiterrorism laws, and 
should inform Congress of any gaps or obstacles lim-
iting the ability of the United States to bring terror-
ists to justice; 
(3) should take immediate measures to enhance 
international legal cooperation in the investigation 
and prosecution of individuals and organizations sus-
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pected of involvement in international terrorism, in-
cluding expanding international police cooperation; 
and 
(4) acknowledge the ongoing efforts of the 
United States Government to ensure that any pro-
longed detention is carefully evaluated, justified, and 
abides by the Constitution, Federal law, inter-
national human rights law, and the law of armed 
conflict. 
SEC. 404. DETENTION. 
(a) IN GENERAL.—Any covered individual detained 
under this Act shall be held in accordance with the condi-
tions of confinement guaranteed by Common Article 3 of 
the Geneva Conventions. 
(b) LOCATION.—Any covered individual detained 
under this Act shall be held in a location accessible to the 
International Committee of the Red Cross. 
SEC. 405. REPORTING. 
Not later than 6 months after the date of enactment 
of this Act, and no less frequently than every 6 months 
thereafter, the Director of National Intelligence, in con-
sultation with the Director of the Central Intelligence 
Agency, the Secretary of Defense, the Secretary of Home-
land Security, the Secretary of the Treasury, and the Sec-
retary of State, shall submit to Congress a report identi-
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fying the organizations which the Executive Branch con-
siders to be forces covered by the Authorization for Use 
of Military Force (Public Law 107–40; 115 Stat. 224; 50 
U.S.C. 1541 note) as ‘‘those nations, organizations, or 
persons’’ who ‘‘planned, authorized, committed, or aided 
the terrorist attacks that occurred on September 11, 2001, 
or harbored such organizations or persons’’ or as co-bellig-
erents of such forces. 
SEC. 406. RULES OF CONSTRUCTION. 
Nothing in this Act may be construed to— 
(1) preclude or impinge on the authority of the 
Government to detain or intern individuals subject 
to detention under the laws of war in a theater of 
active military operation or under another legal au-
thority; 
(2) confer any right upon an individual lawfully 
detained in a theater of active military operation; or 
(3) require or permit continued detention of an 
individual after the Government determines the indi-
vidual is not an imperative threat to security. 
SEC. 407. SUNSET. 
The authority under this Act to detain a covered per-
son not already detained under section 203 or section 301 
shall terminate 3 years after the date of enactment of this 
Act. Authority to renew detention orders already in place 
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or to proceed with applications already filed under section 
4 shall not terminate. 
Æ 
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