I 
110TH CONGRESS 
2D SESSION 
H. R. 6705 
To provide for habeas corpus review for terror suspects held at Guantanamo 
Bay, Cuba, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JULY 31, 2008 
Mr. SMITH of Texas (for himself, Mr. BOEHNER, Mr. BLUNT, and Mr. 
HUNTER) introduced the following bill; which was referred to the Com-
mittee on the Judiciary 
A BILL 
To provide for habeas corpus review for terror suspects held 
at Guantanamo Bay, Cuba, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Enemy Combatant De-
tention Review Act of 2008’’. 
SEC. 2. HABEAS CORPUS REVIEW FOR CERTAIN ENEMY 
COMBATANTS. 
(a) IN GENERAL.—Chapter 153 of title 28, United 
States Code, is amended by striking section 2256, as 
added by section 250 of the Act of November 6, 1978 
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(Public Law 95–598; 92 Stat. 2672), and inserting the 
following: 
‘‘§ 2256. Habeas corpus review for certain enemy 
combatants 
‘‘(a) DEFINITIONS.—In this section— 
‘‘(1) the term ‘attorney for the Government’ 
means the attorney representing the United States 
in a habeas corpus proceeding under this section; 
‘‘(2) the term ‘covered individual’ means an in-
dividual who— 
‘‘(A) has been determined by a Combatant 
Status Review Tribunal to be an enemy com-
batant (pursuant to the definition employed by 
that tribunal) or is awaiting the determination 
of such a tribunal; 
‘‘(B) is in the custody of the United States 
at Guantanamo Bay, Cuba on or after the date 
of enactment of the Enemy Combatant Deten-
tion Review Act of 2008; and 
‘‘(C) is not a citizen of the United States 
or an alien admitted for permanent residence in 
the United States; and 
‘‘(3) the term ‘enemy combatant’ means a per-
son who has engaged in hostilities or who has pur-
posefully and materially supported hostilities against 
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the United States or its cobelligerents on behalf of 
the Taliban, al Qaeda, or associated forces. 
‘‘(b) STATEMENT OF AUTHORITY.— 
‘‘(1) IN GENERAL.—Congress reaffirms that the 
United States is in an armed conflict with al Qaeda, 
the Taliban, and associated forces and that those en-
tities continue to pose a threat to the United States 
and its citizens, both domestically and abroad. 
‘‘(2) AUTHORITY.—Congress reaffirms that the 
President is authorized to detain enemy combatants 
in connection with the continuing armed conflict 
with al Qaeda, the Taliban, and associated forces, 
regardless of the place of capture, until the termi-
nation of hostilities. 
‘‘(3) RULE OF CONSTRUCTION.—The authority 
under this section shall not be construed to alter or 
limit the authority of the President to detain com-
batants in the continuing armed conflict with al 
Qaeda, the Taliban, and associated forces, in any 
other armed conflict, or as otherwise authorized 
under the Constitution of the United States. 
‘‘(c) JURISDICTION AND VENUE.— 
‘‘(1) IN GENERAL.—The United States District 
Court for the District of Columbia (in this section 
referred to as the ‘District Court’) shall have exclu-
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sive jurisdiction of, and shall be the exclusive venue 
for consideration of, all applications for habeas cor-
pus by or on behalf of any covered individual that 
is pending on or filed on or after the date of enact-
ment of the Enemy Combatant Detention Review 
Act of 2008. 
‘‘(2) SCOPE OF JURISDICTION.—An application 
for habeas corpus filed under paragraph (1) by or on 
behalf of a covered individual— 
‘‘(A) may challenge the legality of the con-
tinued detention of the covered individual; and 
‘‘(B) may not include any other claim re-
lating to the detention, transfer, treatment, 
trial, or conditions of confinement of the cov-
ered individual or any other action against the 
United States or its agents. 
‘‘(3) CONSOLIDATED MOTIONS PRACTICE.—All 
applications for a writ of habeas corpus by or on be-
half of a covered individual that are pending on or 
after the date of enactment of the Enemy Combat-
ant Detention Review Act of 2008 shall be consoli-
dated before the Chief Judge of the District Court 
or a designee of the Chief Judge for consolidated 
proceedings and determinations on common ques-
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tions of fact or law, including questions concerning 
the procedures to be conducted on the applications. 
‘‘(4) 
TRANSFER.—Consistent 
with 
section 
1403(a) of this title, any court of the United States 
shall transfer a case within the exclusive jurisdiction 
of the District Court. 
‘‘(d) PROCEDURES.— 
‘‘(1) STATUS OF COVERED INDIVIDUAL.— 
‘‘(A) IN GENERAL.—In a proceeding insti-
tuted by an application for habeas corpus by or 
on behalf of a covered individual under sub-
section (c)(1), the burden shall be on the Gov-
ernment to submit a return in the form of a 
written declaration describing the factual basis 
upon which the Government is detaining the 
covered individual. Any evidence relied upon by 
the Government in its declaration shall be sub-
ject to a rebuttable presumption with respect to 
the competency and authenticity of such evi-
dence. 
‘‘(B) PRESUMPTION.—Upon a determina-
tion that the Government’s return shows cred-
ible evidence that the covered individual is an 
enemy combatant, there shall be a rebuttable 
presumption that the covered individual is an 
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enemy combatant. The covered individual shall 
have the burden of rebutting the presumption 
that the covered individual is an enemy combat-
ant by a showing of more persuasive evidence. 
The covered individual shall present such evi-
dence in the form of a written declaration. 
‘‘(C) REBUTTAL OF PRESUMPTION.—If a 
covered individual presents evidence sufficient 
to rebut the presumption under subparagraph 
(B), the District Court may hold an evidentiary 
hearing on any disputed matter. In a hearing 
under this subparagraph, the court shall hear 
evidence and make findings of fact by a prepon-
derance of the evidence. 
‘‘(2) DISCOVERY.— 
‘‘(A) SCOPE
OF
DISCOVERY.—Subject to 
subparagraph (B), a covered individual may re-
quest from the Government as the discovery re-
lating to a habeas corpus proceeding under this 
section, and if requested by a covered indi-
vidual, the Government shall provide— 
‘‘(i) any documents or objects directly 
and specifically referenced in the return 
submitted by the Government; 
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‘‘(ii) any evidence known to the attor-
ney for the Government that tends materi-
ally to undermine evidence presented in the 
return submitted by the Government; and 
‘‘(iii) all statements, whether oral, 
written, or recorded, made or adopted by 
the covered individual that are known to 
the attorney for the Government and di-
rectly related to the information in the re-
turn submitted by the Government. 
‘‘(B) PROTECTION OF NATIONAL SECURITY 
INFORMATION.— 
‘‘(i) GENERALLY.—Classified informa-
tion shall be protected and is privileged 
from disclosure in habeas corpus pro-
ceedings relating to a covered individual. 
The rule under this subparagraph applies 
to all stages of any proceeding relating to 
an application for habeas corpus filed 
under subsection (c)(1). 
‘‘(ii) SUBSTITUTE.—If any informa-
tion described in subparagraph (A) is clas-
sified, the attorney for the Government 
shall either— 
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‘‘(I) provide the covered indi-
vidual with an adequate substitute, to 
the extent practicable and consistent 
with national security; or 
‘‘(II) make the classified infor-
mation available to properly cleared 
counsel for the covered individual. 
‘‘(iii) NONDISCLOSURE OF CLASSIFIED 
INFORMATION.—Under no circumstances 
shall the Government be required to pro-
vide a covered individual, or any other per-
son detained as an enemy combatant, with 
access to classified information as part of 
a habeas corpus proceeding under this sec-
tion. 
‘‘(iv) SOURCES AND METHODS.—The 
Government shall not be required to dis-
close to anyone outside the Government 
the classified sources, methods, or activi-
ties by which the Government acquired in-
formation described in subparagraph (A). 
The District Court may require the Gov-
ernment to present, to the extent prac-
ticable and consistent with national secu-
rity, an unclassified summary of the 
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sources, methods, or activities by which the 
Government acquired such information. 
‘‘(v) ORDER.—Upon motion of the 
Government, the District Court shall issue 
an order to protect against the disclosure 
of any classified information. 
‘‘(vi) EX PARTE AND IN CAMERA RE-
VIEW.—If the Government seeks to protect 
classified information from disclosure pur-
suant to the protections of this subpara-
graph, the court may review the Govern-
ment’s submission ex parte and in camera. 
‘‘(vii) 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 pursuant to section 7 of the Classified 
Information Procedures Act (18 U.S.C. 
App.). 
‘‘(3) WITNESS PRODUCTION.— 
‘‘(A) IN GENERAL.—To the maximum ex-
tent possible, habeas corpus proceedings shall 
be decided on the basis of a written return and 
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a written declaration. The rules concerning the 
admissibility of evidence in civil or criminal 
trials shall not apply to the presentation and 
consideration of information at any evidentiary 
hearing under this section. The District Court 
may consider any reliable and probative evi-
dence, including hearsay from military, intel-
ligence, and law enforcement sources. 
‘‘(B) BASIS FOR IN-PERSON TESTIMONY.— 
The District Court may grant a motion for oral 
testimony relating to an evidentiary hearing 
pursuant to paragraph (1)(C) only if the court 
finds by clear and convincing evidence that mili-
tary and intelligence operations would not be 
harmed by the production of the witness and 
oral testimony would be likely to provide a ma-
terial benefit to the resolution by the court of 
the disputed matter. 
‘‘(4) ATTORNEYS.— 
‘‘(A) IN GENERAL.—The covered individual 
shall be represented by an attorney if the attor-
ney— 
‘‘(i) is retained by the covered indi-
vidual or appointed by the District Court; 
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‘‘(ii) has been determined to be eligi-
ble for access to classified information that 
is classified at the level Secret or higher, 
as required; and 
‘‘(iii) has signed a written agreement 
to comply with all applicable regulations or 
instructions for attorneys in habeas corpus 
proceedings before the District Court, in-
cluding any rules of court for conduct dur-
ing the proceedings. 
‘‘(B) CLASSIFIED INFORMATION.—Any at-
torney for a covered individual— 
‘‘(i) shall protect any classified infor-
mation received during the course of rep-
resentation of the covered individual in ac-
cordance with all applicable law governing 
the protection of classified information; 
and 
‘‘(ii) may not divulge such information 
to any person not authorized to receive it. 
‘‘(5) VIDEO
HEARINGS.—The District Court 
shall not require the presence of a covered individual 
detained at Guantanamo Bay, Cuba, or elsewhere, 
for the purpose of any proceeding under this section, 
including an evidentiary hearing pursuant to para-
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graph (1)(C), although the District Court in its dis-
cretion may permit a detainee to participate from 
Guantanamo Bay, Cuba, in certain proceedings 
through available technological means, if appropriate 
and consistent with the procedures for the protection 
of classified information and national security under 
this section. 
‘‘(e) EXHAUSTION OF MILITARY COMMISSION PRO-
CEDURES.— 
‘‘(1) STAY OF APPLICATIONS PENDING OTHER 
PROCEEDINGS.—Any application for habeas corpus 
that is pending on or after the date of enactment of 
the Enemy Combatant Detention Review Act of 
2008 by or on behalf of a covered individual against 
whom charges have been sworn under chapter 47A 
of title 10 shall be stayed pending resolution of the 
proceedings under chapter 47A of title 10. 
‘‘(2) HABEAS PROCEDURES FOR PERSONS CON-
VICTED BY FINAL JUDGMENT OF A MILITARY COM-
MISSION.— 
‘‘(A) IN GENERAL.—Subject to the restric-
tions under sections 950g and 950j of title 10, 
an application for a writ of habeas corpus on 
behalf of a covered individual in custody pursu-
ant to a final judgment of a military commis-
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sion shall not be granted unless the applicant 
has exhausted the remedies available under 
chapter 47A of title 10. 
‘‘(B) FAILURE TO EXHAUST.—An applica-
tion for a writ of habeas corpus by a covered 
individual may be denied on the merits, not-
withstanding the failure of the applicant to ex-
haust the remedies available under chapter 47A 
of title 10. 
‘‘(C) REMEDIES NOT EXHAUSTED.—A cov-
ered individual shall not be determined to have 
exhausted the remedies available under chapter 
47A of title 10, within the meaning of this sec-
tion, if the covered individual has the right 
under chapter 47A of title 10 to raise, by any 
available procedure, the question presented in 
an application for a writ of habeas corpus. 
‘‘(D) LIMITATIONS.—An application for a 
writ of habeas corpus on behalf of a covered in-
dividual in custody pursuant to the judgment of 
a military commission shall not be granted with 
respect to any claim that was adjudicated on 
the merits in military commission proceedings 
under chapter 47A of title 10 or that could 
have been raised before the military commis-
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sion, except where the commission was without 
jurisdiction to impose such a judgement. 
‘‘(E) SCOPE OF REVIEW.—Subject to the 
restrictions under subparagraph (D), in review-
ing any other claim on an application for a writ 
of habeas corpus on behalf of a covered indi-
vidual in custody pursuant to the sentence of a 
military commission, the District Court shall 
apply the same deference applicable to a court 
reviewing an application on behalf of a person 
in custody pursuant to the sentence of a court 
martial. 
‘‘(f) LIMITS ON SECOND OR SUCCESSIVE APPLICA-
TIONS.— 
‘‘(1) IN GENERAL.—A claim presented in a sec-
ond or successive application for habeas corpus 
under this section that was presented in a prior ap-
plication shall be dismissed. 
‘‘(2) CLAIMS NOT INCLUDED IN PRIOR APPLICA-
TION.—A claim presented in a second or successive 
application for habeas corpus under this section that 
was not presented in a prior application shall be dis-
missed unless the— 
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‘‘(A) factual predicate for the claim could 
not have been discovered previously through the 
exercise of due diligence; and 
‘‘(B) facts underlying the claim, if proven 
and viewed in light of the evidence as a whole, 
would be sufficient to establish by clear and 
convincing 
evidence 
that 
no 
reasonable 
factfinder would have found that the covered in-
dividual was lawfully detained. 
‘‘(3) PROCEDURES FOR SECOND AND SUCCES-
SIVE APPLICATIONS.— 
‘‘(A) IN
GENERAL.—The District Court 
may only consider a second or successive appli-
cation for habeas corpus under this section if 
the court determines that the covered individual 
makes a prima facie showing that the applica-
tion satisfies the requirements under paragraph 
(2) for consideration of a second or successive 
application for habeas corpus. 
‘‘(B) APPEAL.—The Government may take 
an interlocutory appeal from a decision by the 
District Court to grant consideration of a sec-
ond or successive habeas corpus application 
under this paragraph to the United States 
Court of Appeals for the District of Columbia 
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Circuit. The District Court shall stay pro-
ceedings pending the decision on an interlocu-
tory appeal. 
‘‘(g) RELEASE.— 
‘‘(1) COVERED
INDIVIDUALS
ORDERED
RE-
LEASED.— 
‘‘(A) IN GENERAL.—No court shall order 
the release of a covered individual into the 
United States. 
‘‘(B) VISAS AND IMMIGRATION.—The Sec-
retary of State shall not issue any visa and the 
Secretary of Homeland Security shall not admit 
or provide any type of status to a covered indi-
vidual described in subparagraph (A) that may 
permit the covered individual to enter or be ad-
mitted to the United States. 
‘‘(C) WAIVER.—The President, in the sole 
discretion of the President, may waive the re-
strictions under subparagraph (A) or (B), in 
whole or in part, upon a finding that the waiver 
of such restriction would be consistent with the 
national security of the United States. 
‘‘(2) TRANSFER.— 
‘‘(A) IN GENERAL.—If the District Court 
grants an application for a writ of habeas cor-
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pus and orders the release of a covered indi-
vidual, the covered individual shall be released 
into the custody of the Secretary of Homeland 
Security for the purpose of transferring the in-
dividual to the country of citizenship of the in-
dividual or to another country. 
‘‘(B) TRANSFER.—An individual in the 
custody of the Secretary of Homeland Security 
pursuant to subparagraph (A) shall be housed 
separately from aliens detained as enemy com-
batants by the Department of Defense and in 
a manner consistent with safety and security of 
United States personnel. A transfer made pur-
suant to subparagraph (A) shall be effected as 
expeditiously as possible and in a manner that 
is consistent with the policy set out in section 
2242 of the 1998 Foreign Relations Authoriza-
tion Act, Fiscal Years 1998 and 1999 (subdivi-
sion B of division G of Public Law 105–277; 8 
U.S.C. 1231 note), and with the national secu-
rity interests of the United States.’’. 
(b) TECHNICAL AND CONFORMING AMENDMENTS.— 
(1) IN
GENERAL.—Section 2241 of title 28, 
United States Code, is amended by striking sub-
section (e). 
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(2) TABLE OF SECTIONS.—The table of sections 
for chapter 153 of title 28, United States Code, is 
amended by striking the item relating to section 
2256, as added by section 250 of the Act of Novem-
ber 6, 1978 (Public Law 95–598; 92 Stat. 2672), 
and inserting the following: 
‘‘2256. Habeas corpus review for certain enemy combatants.’’. 
(3) DETAINEE TREATMENT ACT OF 2005.—Sec-
tion 1005(e) of the Detainee Treatment Act of 2005 
(10 U.S.C. 801 note) is amended by striking para-
graph (2). 
SEC. 3. EFFECTIVE DATE. 
This Act shall take effect on the date of enactment 
of this Act, and shall apply to all cases, without exception, 
pending on or after the date of enactment of this Act. 
Æ 
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