S3801
Enemy
Belligerent Interrogation, Detention, and Prosecution Act of 2010 (Introduced in
Senate)
S 3081 IS
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.
- Be it enacted by the Senate and House
of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT
TITLE.
- This Act may be cited as the `Enemy Belligerent Interrogation,
Detention, and Prosecution Act of 2010'.
SEC. 2. PLACEMENT OF SUSPECTED
UNPRIVILEGED ENEMY BELLIGERENTS IN MILITARY CUSTODY.
- (a) Military Custody Requirement- Whenever within the United States, its
territories, and possessions, or outside the territorial limits of the United States, an individual is captured
or otherwise comes into the custody or under the effective control of the United States who is suspected of
engaging in hostilities against the United States or its coalition partners through an act of terrorism, or by
other means in violation of the laws of war, or of purposely and materially supporting such hostilities, and
who may be an unprivileged enemy belligerent, the individual shall be placed in military custody for purposes
of initial interrogation and determination of status in accordance with the provisions of this
Act.
- (b) Reasonable Delay for Intelligence Activities- An individual who may
be an unprivileged enemy belligerent and who is initially captured or otherwise comes into the custody or under
the effective control of the United States by an intelligence agency of the United States may be held,
interrogated, or transported by the intelligence agency and placed into military custody for purposes of this
Act if retained by the United States within a reasonable time after the capture or coming into the custody or
effective control by the intelligence agency, giving due consideration to operational needs and requirements to
avoid compromise or disclosure of an intelligence mission or intelligence sources or methods.
SEC. 3. INTERROGATION AND
DETERMINATION OF STATUS OF SUSPECTED UNPRIVILEGED ENEMY BELLIGERENTS.
- (a) Establishment of Interrogation Groups-
- (1) ESTABLISHMENT AUTHORIZED- The President is authorized to
establish an interagency team for purposes as follows:
- (A) To interrogate under subsection (b) individuals placed in
military custody under section 2.
- (B) To make under subsection (c)(1) a preliminary determination of
the status of individuals described in section 2.
- (2) COMPOSITION- Each interagency team under this subsection shall
be composed of such personnel of the Executive Branch having expertise in matters relating to national
security, terrorism, intelligence, interrogation, or law enforcement as the President considers
appropriate. The members of any particular interagency team may vary depending on the skills most relevant
to a particular case.
- (A) HIGH-VALUE DETAINEE- An individual placed in military custody
under section 2 shall, while subject to interrogation and determination of status under this section, be
referred to as a `high-value detainee' if the individual meets the criteria for treatment as such
established in the regulations required by subsection (d).
- (B) HIGH-VALUE DETAINEE INTERROGATION GROUP- An interagency team
established under this subsection shall be known as a `high-value detainee interrogation
group'.
- (1) INTERROGATIONS TO BE CONDUCTED BY HIGH-VALUE DETAINEE
INTERROGATION GROUP- A high-value detainee interrogation group established under this section shall conduct
the interrogations of each high-value detainee.
- (2) UTILIZATION OF OTHER PERSONNEL- A high-value detainee
interrogation group may utilize military and intelligence personnel, and Federal, State, and local law
enforcement personnel, in conducting interrogations of a high-value detainee. The utilization of such
personnel for the interrogation of a detainee shall not alter the responsibility of the interrogation group
for the coordination within the Executive Branch of the interrogation of the detainee or the determination
of status and disposition of the detainee under this Act.
- (3) INAPPLICABILITY OF CERTAIN STATEMENT AND RIGHTS- A individual
who is suspected of being an unprivileged enemy belligerent shall not, during interrogation under this
subsection, be provided the statement required by Miranda v. Arizona (384 U.S. 436 (1966)) or otherwise be
informed of any rights that the individual may or may not have to counsel or to remain silent consistent
with Miranda v. Arizona.
- (c) Determinations of Status-
- (1) PRELIMINARY DETERMINATION BY HIGH-VALUE DETAINEE INTERROGATION
GROUP- The high-value detainee interrogation group responsible for interrogating a high-value detainee
under subsection (b) shall make a preliminary determination whether or not the detainee is an unprivileged
enemy belligerent. The interrogation group shall make such determination based on the result of its
interrogation of the individual and on all intelligence information available to the interrogation group.
The interrogation group shall, after consultation with the Director of National Intelligence, the Director
of the Federal Bureau of Investigation, and the Director of the Central Intelligence Agency, submit such
determination to the Secretary of Defense and the Attorney General.
- (2) FINAL DETERMINATION- As soon as possible after receipt of a
preliminary determination of status with respect to a high-value detainee under paragraph (1), the
Secretary of Defense and the Attorney General shall jointly submit to the President and to the appropriate
committees of Congress a final determination whether or not the detainee is an unprivileged enemy
belligerent for purposes of this Act. In the event of a disagreement between the Secretary of Defense and
the Attorney General, the President shall make the final determination.
- (3) DEADLINE FOR DETERMINATIONS- All actions required regarding a
high-value detainee under this subsection shall, to the extent practicable, be completed not later than 48
hours after the detainee is placed in military custody under section 2.
- (1) IN GENERAL- The operations and activities of high-value detainee
interrogation groups under this section shall be governed by such regulations and guidance as the President
shall establish for purposes of implementing this section. The regulations shall specify the officer or
officers of the Executive Branch responsible for determining whether an individual placed in military
custody under section 2 meets the criteria for treatment as a high-value detainee for purposes of
interrogation and determination of status by a high-value interrogation group under this
section.
- (2) CRITERIA FOR DESIGNATION OF INDIVIDUALS AS HIGH-VALUE DETAINEES-
The regulations required by this subsection shall include criteria for designating an individual as a
high-value detainee based on the following:
- (A) The potential threat the individual poses for an attack on
civilians or civilian facilities within the United States or upon United States citizens or United States
civilian facilities abroad at the time of capture or when coming under the custody or control of the United
States.
- (B) The potential threat the individual poses to United States
military personnel or United States military facilities at the time of capture or when coming under the
custody or control of the United States.
- (C) The potential intelligence value of the
individual.
- (D) Membership in al Qaeda or in a terrorist group affiliated with
al Qaeda.
- (E) Such other matters as the President considers
appropriate.
- (3) PARAMOUNT PURPOSE OF INTERROGATIONS- The regulations required by
this subsection shall provide that the paramount purpose of the interrogation of high-value detainees under
this Act shall be the protection of United States civilians and United States civilian facilities through
thorough and professional interrogation for intelligence purposes.
- (4) SUBMITTAL TO CONGRESS- The President shall submit the
regulations and guidance required by this subsection to the appropriate committees of Congress not later
than 60 days after the date of the enactment of this Act.
SEC. 4. LIMITATION ON PROSECUTION OF
ALIEN UNPRIVILEGED ENEMY BELLIGERENTS.
- (a) Limitation- No funds appropriated or otherwise made available to the
Department of Justice may be used to prosecute in an Article III court in the United States, or in any
territory or possession of the United States, any alien who has been determined to be an unprivileged enemy
belligerent under section 3(c)(2).
- (b) Applicability Pending Final Determination of Status- While a final
determination on the status of an alien high-value detainee is pending under section 3(c)(2), the alien shall
be treated as an unprivileged enemy belligerent for purposes of subsection (a).
SEC. 5. DETENTION WITHOUT TRIAL OF
UNPRIVILEGED ENEMY BELLIGERENTS.
- An individual, including a citizen of the United States, determined to
be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva
Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without
trial for the duration of hostilities against the United States or its coalition partners in which the
individual has engaged, or which the individual has purposely and materially supported, consistent with the law
of war and any authorization for the use of military force provided by Congress pertaining to such
hostilities.
SEC. 6.
DEFINITIONS.
- (1) ACT OF TERRORISM- The term `act of terrorism' means an act of
terrorism as that term is defined in section 101(16) of the Homeland Security Act of 2002 (6 U.S.C.
101(16)).
- (2) ALIEN- The term `alien' means an individual who is not a citizen
of the United States.
- (3) APPROPRIATE COMMITTEES OF CONGRESS- The term `appropriate
committees of Congress' means--
- (A) the Committee on Armed Services, the Committee on Homeland
Security and Governmental Affairs, the Committee on the Judiciary, and the Select Committee on Intelligence
of the Senate; and
- (B) the Committee on Armed Services, the Committee on Homeland
Security, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence of the House
of Representatives.
- (4) ARTICLE III COURT- The term `Article III court' means a court of
the United States established under Article III of the Constitution of the United States.
- (5) COALITION PARTNER- The term `coalition partner', with respect to
hostilities engaged in by the United States, means any State or armed force directly engaged along with the
United States in such hostilities or providing direct operational support to the United States in
connection with such hostilities.
- (6) GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR-
The term `Geneva Convention Relative to the Treatment of Prisoners of War' means the Geneva Convention
Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST
3316).
- (7) HOSTILITIES- The term `hostilities' means any conflict subject
to the laws of war, and includes a deliberate attack upon civilians and civilian targets protected by the
laws of war.
- (8) PRIVILEGED BELLIGERENT- The term `privileged belligerent' means
an individual belonging to one of the eight categories enumerated in Article 4 of the Geneva Convention
Relative to the Treatment of Prisoners of War.
- (9) UNPRIVILEGED ENEMY BELLIGERENT- The term `unprivileged enemy
belligerent' means an individual (other than a privileged belligerent) who--
- (A) has engaged in hostilities against the United States or its
coalition partners;
- (B) has purposely and materially supported hostilities against the
United States or its coalition partners; or
- (C) was a part of al Qaeda at the time of capture.
SEC. 7. EFFECTIVE
DATE.
- This Act shall take effect on the date of the enactment of this Act, and
shall apply with respect to individuals who are captured or otherwise come into the custody or under the
effective control of the United States on or after that date.
http://thomas.loc.gov/cgi-bin/query/z?c111:s3081:
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