experts in operations, intelligence, and counterter-
rorism matters. 
(4) The Government’s submission to the board 
or panel regarding the threat posed by such an indi-
vidual and any mitigating information described in 
subsection (b)(4) shall be provided to the military 
personal representative for the individual. Where it 
is necessary to protect national security, including 
the protection of intelligence sources and methods, 
the board or panel may determine that the military 
personal representative must receive a sufficient sub-
stitute or summary of classified information, rather 
than the underlying information. 
(5) Such an individual shall not be subject to 
any such review under circumstances as follows: 
(A) In the case of such an individual upon 
whom charges have been served in accordance 
with section 948s of title 10, United States 
Code, until after final judgment has been 
reached on such charges. 
(B) In the case of such an individual who 
has been convicted by a military commission 
under chapter 47A of such title of an offense 
under subchapter VIII of that chapter, until 
after the individual has completed his sentence. 
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(C) In the case of such an individual who 
has been ordered released by a court of com-
petent jurisdiction. 
(b) CONSIDERATIONS.—In determining the rec-
ommendation to make regarding an individual detained at 
Guantanamo under any review process, a panel shall con-
sider— 
(1) whether the individual represents a con-
tinuing threat to the United States or its allies; and 
(2) whether there are other factors that form a 
need for continued detention of the individual, in-
cluding— 
(A) the likelihood the individual will re-
sume terrorist activity if transferred or re-
leased; 
(B) the likelihood the individual will rees-
tablish ties with an organization engaged in 
hostilities against the United States or its allies 
if transferred or released; 
(C) the intelligence value of information 
known by the individual; 
(D) the likelihood of family, tribal, or gov-
ernment rehabilitation or support for the indi-
vidual if transferred or released; and 
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(E) the likelihood the individual may be 
subject to trial by military commission; and 
(3) with respect to consideration of whether to 
transfer an individual to the custody of a foreign 
country, whether that country— 
(A) is not a designated state sponsor of 
terrorism or a designated foreign terrorist orga-
nization; 
(B) maintains effective control over each 
detention facility in which an individual is to be 
detained if the individual is to be housed in a 
detention facility; 
(C) is not, as of the date of the certifi-
cation, facing a threat that is likely to substan-
tially affect its ability to exercise control over 
the individual; 
(D) has agreed to take effective steps to 
ensure that the individual cannot take action to 
threaten the United States, its citizens, or its 
allies in the future; 
(E) has taken such steps as the Secretary 
determines are necessary to ensure that the in-
dividual cannot engage or re-engage in any ter-
rorist activity; 
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(F) has agreed to share any information 
with the United States that— 
(i) is related to the individual or any 
associates of the individual; and 
(ii) could affect the security of the 
United States, its citizens, or its allies; and 
(G) has agreed to allow appropriate agen-
cies of the United States to have access to the 
individual, if requested; and 
(4) any information reviewed by the officials 
preparing the Government’s submission to the board 
or panel that tends to mitigate the threat posed by 
the individual. 
SEC. 4. REQUIREMENT FOR MILITARY CUSTODY FOR MEM-
BERS OF AL QAEDA, THE TALIBAN, AND ASSO-
CIATED FORCES SUBJECT TO THE AUTHOR-
IZATION FOR USE OF MILITARY FORCE. 
(a) IN GENERAL.—Chapter 3 of title 10, United 
States Code, is amended by adding at the end the fol-
lowing new section: 
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‘‘SEC. 130e. REQUIREMENT FOR MILITARY CUSTODY FOR 
MEMBERS OF AL QAEDA, THE TALIBAN, AND 
ASSOCIATED FORCES SUBJECT TO THE AU-
THORIZATION FOR USE OF MILITARY FORCE. 
‘‘(a) CUSTODY PENDING DISPOSITION DETERMINA-
TION.—(1) Except as provided in paragraph (3), an indi-
vidual who is 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 this title) shall be held in military custody 
pending a decision by the President on the disposition of 
the person. 
‘‘(2) The disposition of a person as described in para-
graph (1) may include the following: 
‘‘(A) Long-term detention without trial until 
the end of hostilities against the nations, organiza-
tions, and persons subject to the Authorization for 
Use of Military Force (Public Law 107–40; 50 
U.S.C. 1541 note). 
‘‘(B) Trial under chapter 47A of title 10, 
United States Code. 
‘‘(3) The Secretary of Defense, in consultation with 
the Director of National Intelligence, may waive the re-
quirement under paragraph (1) if the Secretary submits 
to the appropriate committees of Congress certification in 
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