writing that such a waiver is in the national security inter-
ests of the United States. 
‘‘(b) DEFINITION.—In this section, The term ‘appro-
priate committees of Congress’ means— 
‘‘(1) the Committee on Armed Services and the 
Select Committee on Intelligence of the Senate; and 
‘‘(2) the Committee on Armed Services and the 
Permanent Select Committee on Intelligence of the 
House of Representatives.’’. 
(b) CLERICAL AMENDMENT.—The table of sections 
at the beginning of such chapter is amended by adding 
at the end the following new item: 
‘‘130e. Requirement for military custody for members of al Qaeda, the Taliban, 
and associated forces subject to the Authorization for Use of 
Military Force.’’. 
(c) EFFECTIVE DATE.—Section 130e of title 10, 
United States Code, as added by subsection (a) shall take 
effect on March 4, 2011, and shall apply with respect to 
individuals eligible for detention pursuant to the Author-
ization for Use of Military Force (Public Law 107–40; 50 
U.S.C. 1541 note) (as such term is defined in section 
130f(c)(1) of such title, as so added) who are taken into 
the custody or brought under the control of the United 
States on or after that date. 
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SEC. 5. PROHIBITIONS RELATING TO THE TRANSFER AND 
RELEASE OF CERTAIN DETAINEES. 
(a) IN GENERAL.—Chapter 3 of title 10, United 
States Code, as amended by section 4, is further amended 
by adding at the end the following new section: 
‘‘SEC. 130f. PROHIBITIONS RELATING TO THE TRANSFER 
AND RELEASE OF CERTAIN DETAINEES. 
‘‘(a) PROHIBITION ON TRANSFER OR RELEASE TO OR 
WITHIN THE UNITED STATES.—No individual who is eli-
gible for detention pursuant to the Authorization for Use 
of Military Force (Public Law 107–40; 50 U.S.C. 1541 
note) may be transferred or released to or within the 
United States, its territories, or possessions. 
‘‘(b) LIMITATION ON TRANSFER TO FOREIGN COUN-
TRIES.—(1) The Secretary of Defense may not transfer 
any individual described in paragraph (5) to the custody 
or effective control of the individual’s country of origin, 
any other foreign country, or any other foreign entity un-
less the Secretary submits to Congress the certification de-
scribed in paragraph (2) by not later than 30 days before 
the transfer of the individual. 
‘‘(2) The certification described in this paragraph is 
a written certification made by the Secretary of Defense, 
in consultation with the Secretary of State, that the gov-
ernment of the foreign country or the recognized leader-
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ship of the foreign entity to which the individual described 
in paragraph (5) is to be transferred— 
‘‘(A) is not a designated state sponsor of ter-
rorism or a designated foreign terrorist organization; 
‘‘(B) maintains effective control over each de-
tention facility in which an individual is to be de-
tained if the individual is to be housed in a detention 
facility; 
‘‘(C) is not, as of the date of the certification, 
facing a threat that is likely to substantially affect 
its ability to exercise control over the individual; 
‘‘(D) has agreed to take effective steps to en-
sure that the individual cannot take action to threat-
en the United States, its citizens, or its allies in the 
future; 
‘‘(E) has taken such steps as the Secretary de-
termines are necessary to ensure that the individual 
cannot engage or reengage in any terrorist activity; 
‘‘(F) has agreed to share any information with 
the United States that— 
‘‘(i) is related to the individual or any as-
sociates of the individual; and 
‘‘(ii) could affect the security of the United 
States, its citizens, or its allies; and 
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‘‘(G) has agreed to allow appropriate agencies 
of the United States to have access to the individual, 
if requested. 
‘‘(3)(A) The Secretary of Defense may not transfer 
any individual described in paragraph (5) to the custody 
or effective control of the individual’s country of origin, 
any other foreign country, or any other foreign entity if 
there is a confirmed case of any individual described in 
paragraph (5) who was transferred to the foreign country 
or entity and subsequently engaged in any terrorist activ-
ity. 
‘‘(B) The Secretary of Defense may waive the prohi-
bition in subparagraph (A) if the Secretary determines 
that such a transfer is in the national security interests 
of the United States and includes, as part of the certifi-
cation described in paragraph (2) relating to such trans-
fer, the determination of the Secretary under this para-
graph. 
‘‘(4) Paragraphs (1) and (3) shall not apply to any 
action taken by the Secretary of Defense to transfer any 
individual described in paragraph (5) to effectuate an 
order affecting the disposition of the individual that is 
issued by a court or competent tribunal of the United 
States having lawful jurisdiction. The Secretary shall no-
tify Congress promptly upon issuance of any such order. 
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‘‘(5) An individual described in this paragraph is an 
individual who— 
‘‘(A) is not a citizen of the United States or a 
member of the Armed Forces; 
‘‘(B) is in the custody or under the effective 
control of the Department of Defense; and 
‘‘(C) is— 
‘‘(i) not a national of Afghanistan and is 
under detention at Bagram Air Base, Afghani-
stan; or 
‘‘(ii) under detention at United States 
Naval Station, Guantanamo Bay, Cuba, as of 
January 21, 2011. 
‘‘(c) DEFINITIONS.—In this section: 
‘‘(1) The term ‘individual who is eligible for de-
tention pursuant to the Authorization for Use of 
Military Force (Public Law 107–40; 50 U.S.C. 1541 
note)’ includes— 
‘‘(A) any individual who is part of, or is 
substantially supporting, al-Qaeda, the Taliban, 
or associated forces that are engaged in hos-
tilities against the United States or cobelliger-
ents; and 
‘‘(B) any individual who has engaged in 
hostilities or has substantially supported hos-
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