[Congressional Record: July 25, 2007 (Senate)]
[Page S9917-S9927]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. BIDEN:
S. 1876. A bill to prohibit extraterritorial detention and rendition,
except under limited circumstances, to modify the definition of
``unlawful enemy combatant'' for purposes of military commissions, to
extend statutory habeas corpus to detainees, and for other purposes; to
the Committee on the Judiciary.
Mr. BIDEN. One of the defining challenges of our age is to
effectively combat international terrorism while maintaining our
national values and our commitment to the rule of law, and respecting
individual rights and civil liberties. To fight terrorist organizations
whose tactics include blending into our cities and communities and
attacking civilian populations engaged in the activities of everyday
life, we must have robust and agile intelligence capabilities.
Rendition, detaining a terrorist operative in one foreign country and
transfering him to the United States or to another foreign country to
face justice, has proved to be one effective means of taking terrorists
off the streets and collecting valuable intelligence.
Despite its effectiveness, however, the U.S. Government's use of
rendition has been controversial. Foreign governments have criticized
the practice as ungoverned by law and on the basis of its alleged use
to transfer suspects to countries that torture or mistreat them or to
secret, extraterritorial prisons. The toll the rendition program, as
currently practiced, has had on relationships with some of our closest
foreign partners is evident from their responses.
Italy has indicted 26 Americans for their alleged role in a
rendition. Germany has issued arrest warrants for an additional 13 U.S.
intelligence officers. A Canadian Government commission has censured
the United States for rendering a Canadian/Syrian dual citizen to
Syria. The Council of Europe and the European Union have each issued
reports critical of the U.S. Government's rendition program and
European countries' involvement or complicity in it. Sweden and
Switzerland have each initiated investigations as well. Today, the
United Kingdom issued a report predicting that the U.S. Government's
rendition program would have ``serious implications'' for the
intelligence relation between the U.S. and U.K., one of our most
important foreign partners. Rendition, as currently practiced, is
undermining our moral credibility and standing abroad and weakening the
coalitions with foreign governments that we need to effectively combat
international terrorism.
The controversial aspects of the U.S. Government's use of rendition
have also not escaped the notice of the propagandists and recruiters
who fuel and sustain international terrorist organizations with a
constant stream of new recruits. Allegations of lawlessness and
mistreatment by the U.S. make their job easier, adding a refrain to
their recruitment pitch and increasing the receptivity of their target
audience.
Our counterterrorism authorities should not only thwart attacks, take
dangerous terrorists off the streets, and bring them to justice; these
authorities should also strengthen international coalitions, draw
Muslim populations around the world closer to us, and deprive
terrorists of a recruitment narrative. In our long term effort to stem
the tide of international terrorism, our commitments to the rule of law
and to individual rights and civil liberties are among our most
formidable weapons. They are what unite foreign governments behind us
in effective counterterrorism coalitions. They
[[Page S9923]]
are what unite public opinion in support of our counterterrorism
efforts and in condemnation of the terrorists and their tactics. They
are what prevent the recruitment of the next generation of
international terrorists.
This bill maintains rendition as a robust and agile tool in our fight
against international terrorism, but it brings that tool within the
rule of law, provides additional safeguards against error, and
prohibits rendering individuals to countries that will torture or
mistreat them or to secret, extra-territorial prisons.
The bill establishes a classified application and order process,
presided over by the FISA court that: 1. ensures that each rendition is
preceded by a searching inquiry into the identity of the individual to
be rendered and his role in international terrorism and 2. prohibits
rendition to countries that torture or mistreat detainees or to secret,
extraterritorial prisons beyond the reach of law. It ensures that
citizens of, and individuals lawfully admitted to, the U.S. receive the
due process and individual rights guaranteed by the Constitution. It
ensures that a terrorist suspect detained by the U.S. has the
opportunity, through a writ of habeas corpus, to argue in a court of
law that he is being held in error.
This bill also closes a hole intentionally left open by the
President's recent Executive Order on the treatment of detainees. The
President's order is notably silent on some of the more controversial
techniques the CIA has allegedly used in the past, such as
waterboarding, extreme sleep deprivation, extreme sensory deprivation,
and extremes of heat and cold. When we countenance this treatment of
detainees, we diminish our ability to argue that the same techniques
should not be used against our own troops.
We cannot continue to equivocate and dissemble on this matter. We
need to send a clear message that torture, inhumane, and degrading
treatment of detainees is unacceptable and is not permitted by U.S.
law. Period. Therefore, my bill prohibits all officers and agents of
the United States from using techniques of interrogation not authorized
by and listed in the U.S. Army Field Manual on Intelligence
Interrogation.
As I said at the outset, this bill grapples with one of the defining
issues of our age, how to effectively combat terrorism without
sacrificing our national values and abandoning the rule of law. If we
continue to pursue a rendition program ungoverned by law, without
sufficient safeguards and oversight, we will perpetuate a short term
solution that exacerbates the long term problem. We will take
individual terrorists off the streets at the expense of the foreign
coalitions that are essential to our efforts to combat international
terrorism, at the expense of facilitating the recruitment of a new
generation of terrorists who are just as dangerous and far more
numerous.
This is not a trade-off we have to make. We can have a robust and
agile rendition capability governed by the rule of law and subject to
sufficient safeguards and oversight. That is what the National Security
with Justice Act creates. I invite my colleagues on both sides of the
aisle and in the other branches of Government to work with me to refine
this legal framework so that we not only take today's terrorists off
the streets, we strengthen our standing and credibility among foreign
governments and the global community, and we prevent tomorrow's
terrorists from being recruited.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1876
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 ``National Security with
Justice Act of 2007''.
SEC. 2. DEFINITIONS.
In this Act--
(1) the term ``aggrieved person''--
(A) means any individual subject by an officer or agent of
the United States either to extraterritorial detention or
rendition, except as authorized in this Act; and
(B) does not include any individual who is an international
terrorist;
(2) the term ``element of the intelligence community''
means an element of the intelligence community specified in
or designated under section 3(4) of the National Security Act
of 1947 (50 U.S.C. 401a(4));
(3) the term ``extraterritorial detention'' means detention
of any individual by an officer or agent of the United States
outside the territorial jurisdiction of the United States;
(4) the term ``Foreign Intelligence Surveillance Court''
means the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803(a));
(5) the term ``Geneva Conventions'' means--
(A) the Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, done at
Geneva August 12, 1949 (6 UST 3114);
(B) the Convention for the Amelioration of the Condition of
the Wounded, Sick, and Shipwrecked Members of the Armed
Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
(C) the Convention Relative to the Treatment of Prisoners
of War, done at Geneva August 12, 1949 (6 UST 3316); and
(D) the Convention Relative to the Protection of Civilian
Persons in Time of War, done at Geneva August 12, 1949 (6 UST
3516);
(6) the term ``international terrorist'' means--
(A) any person, other than a United States person, who
engages in international terrorism or activities in
preparation therefor; and
(B) any person who knowingly aids or abets any person in
the conduct of activities described in subparagraph (A) or
knowingly conspires with any person to engage in activities
described in subparagraph (A);
(7) the terms ``international terrorism'' and ``United
States person'' have the meanings given those terms in
section 101 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801);
(8) the term ``officer or agent of the United States''
includes any officer, employee, agent, contractor, or
subcontractor acting for or on behalf of the United States;
and
(9) the terms ``render'' and ``rendition'', relating to an
individual, mean that an officer or agent of the United
States transfers that individual from the legal jurisdiction
of the United States or a foreign country to a different
legal jurisdiction (including the legal jurisdiction of the
United States or a foreign country) without authorization by
treaty or by the courts of either such jurisdiction, except
under an order of rendition issued under section 104.
SEC. 3. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Definitions.
Sec. 3. Table of contents.
TITLE I--EXTRATERRITORIAL DETENTION AND RENDITION
Sec. 101. Prohibition on extraterritorial detention.
Sec. 102. Prohibition on rendition.
Sec. 103. Application for an order of rendition.
Sec. 104. Issuance of an order of rendition.
Sec. 105. Authorizations and orders for emergency detention.
Sec. 106. Uniform Standards for the Interrogation of Individuals
Detained by the Government of the United States.
Sec. 107. Protection of United States Government Personnel Engaged in
an Interrogation.
Sec. 108. Monitoring and reporting regarding the treatment, conditions
of confinement, and status of legal proceedings of
individuals rendered to foreign governments.
Sec. 109. Report to Congress.
Sec. 110. Civil liability.
Sec. 111. Additional resources for foreign intelligence surveillance
court.
Sec. 112. Rule of construction.
Sec. 113. Authorization of appropriations.
TITLE II--ENEMY COMBATANTS
Sec. 201. Modification of definition of ``unlawful enemy combatant''
for purposes of military commissions.
TITLE III--HABEAS CORPUS
Sec. 301. Extending statutory habeas corpus to detainees.
TITLE I--EXTRATERRITORIAL DETENTION AND RENDITION
SEC. 101. PROHIBITION ON EXTRATERRITORIAL DETENTION.
(a) In General.--Except as provided in subsection (b), no
officer or agent of the United States shall engage in the
extraterritorial detention of any individual.
(b) Exceptions.--This section shall not apply to--
(1) an individual detained and timely transferred to a
foreign legal jurisdiction or the legal jurisdiction of the
United States under an order of rendition issued under
section 104 or an emergency authorization under section 105;
(2) an individual--
(A) detained by the Armed Forces of the United States in
accordance with United States Army Regulation 190-8 (1997),
or any successor regulation certified by the Secretary of
Defense; and
(B) detained by the Armed Forces of the United States--
(i) under circumstances governed by, and in accordance
with, the Geneva Conventions;
(ii) in accordance with United Nations Security Council
Resolution 1546 (2004) and
[[Page S9924]]
United Nations Security Council Resolution 1723 (2004);
(iii) at the Bagram, Afghanistan detention facility; or
(iv) at the Guantanamo Bay, Cuba detention center on the
date of enactment of this Act;
(3) an individual detained by the Armed Forces of the
United States under circumstances governed by, and in
accordance with chapter 47 of title 10, United States Code
(the Uniform Code of Military Justice);
(4) an individual detained by the Armed Forces of the
United States subject to an agreement with a foreign
government and in accordance with the relevant laws of that
foreign country when the Armed Forces of the United States
are providing assistance to that foreign government; or
(5) an individual detained pursuant to a peacekeeping
operation authorized by the United Nations Security Council
acting under Chapter VII of the Charter of the United
Nations.
SEC. 102. PROHIBITION ON RENDITION.
(a) In General.--Except as provided in subsection (b), no
officer or agent of the United States shall render or
participate in the rendition of any individual.
(b) Exceptions.--This section shall not apply to--
(1) an individual rendered under an order of rendition
issued under section 104;
(2) an individual detained and transferred by the Armed
Forces of the United States under circumstances governed by,
and in accordance with, the Geneva Conventions;
(3) an individual--
(A) for whom an attorney for the United States or for any
State has filed a criminal indictment, criminal information,
or any similar criminal charging document in any district
court of the United States or criminal court of any State;
and
(B) who is timely transferred to the United States for
trial;
(4) an individual--
(A) who was convicted of a crime in any State or Federal
court;
(B) who--
(i) escaped from custody prior to the expiration of the
sentence imposed; or
(ii) violated the terms of parole, probation, or supervised
release; and
(C) who is promptly returned to the United States--
(i) to complete the term of imprisonment; or
(ii) for trial for escaping imprisonment or violating the
terms of parole or supervised release; or
(5) an individual detained by the United States at the
Guantanamo Bay, Cuba detention center on the date of
enactment of this Act who is transferred to a foreign legal
jurisdiction.
SEC. 103. APPLICATION FOR AN ORDER OF RENDITION.
(a) In General.--A Federal officer or agent may make an
application for an order of rendition in writing, upon oath
or affirmation, to a judge of the Foreign Intelligence
Surveillance Court, if the Attorney General of the United
States or the Deputy Attorney General of the United States
determines that the requirements under this title for such an
application have been satisfied.
(b) Contents.--Each application under subsection (a) shall
include--
(1) the identity of the Federal officer or agent making the
application;
(2) a certification that the Attorney General of the United
States or the Deputy Attorney General of the United States
has approved the application;
(3) the identity of the specific individual to be rendered;
(4) a statement of the facts and circumstances relied upon
by the applicant to justify the good faith belief of the
applicant that--
(A) the individual to be rendered is an international
terrorist;
(B) the country to which the individual is to be rendered
will not subject the individual to torture or cruel, inhuman,
or degrading treatment, within the meaning of the United
Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, done at New York on
December 10, 1984;
(C) the country to which the individual is to be rendered
will timely initiate legal proceedings against that
individual that comport with fundamental notions of due
process; and
(D) rendition of that individual is important to the
national security of the United States; and
(5) a full and complete statement regarding--
(A) whether ordinary legal procedures for the transfer of
custody of the individual to be rendered have been tried and
failed; or
(B) the facts and circumstances that justify the good faith
belief of the applicant that ordinary legal procedures
reasonably appear to be--
(i) unlikely to succeed if tried; or
(ii) unlikely to adequately protect intelligence sources or
methods.
(c) Technical and Conforming Amendment.--Section 103 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803) is amended by adding at the end the following:
``(g) The court established under subsection (a) may hear
an application for and issue, and the court established under
subsection (b) may review the issuing or denial of, an order
of rendition under section 104 of the National Security with
Justice Act of 2007.''.
SEC. 104. ISSUANCE OF AN ORDER OF RENDITION.
(a) In General.--Upon filing of an application under
section 103, a judge of the Foreign Intelligence Surveillance
Court shall enter an ex parte order as requested or as
modified approving the rendition, if the judge finds that--
(1) the Attorney General of the United States or the Deputy
Attorney General of the United States has approved the
application for rendition;
(2) the application has been made by a Federal officer or
agent;
(3) the application establishes probable cause to believe
that the individual to be rendered is an international
terrorist;
(4) ordinary legal procedures for transfer of custody of
the individual have been tried and failed or reasonably
appear to be unlikely to succeed for any of the reasons
described in section 103(b)(5)(B);
(5) the application, and such other information as is
available to the judge, including reports of the Department
of State and the United Nations Committee Against Torture and
information concerning the specific characteristics and
circumstances of the individual, establish a substantial
likelihood that the country to which the individual is to be
rendered will not subject the individual to torture or to
cruel, inhuman, or degrading treatment, within the meaning of
the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, done at
New York on December 10, 1984;
(6) the application, and such other information as is
available to the judge, establish reason to believe that the
country to which the individual is to be rendered will timely
initiate legal proceedings against that individual that
comport with fundamental notions of due process; and
(7) the application establishes reason to believe that
rendition of the individual to be rendered is important to
the national security of the United States.
(b) Appeal.--The Government may appeal the denial of an
application for an order under subsection (a) to the court of
review established under section 103(b) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(b)),
and further proceedings with respect to that application
shall be conducted in a manner consistent with that section
103(b).
SEC. 105. AUTHORIZATIONS AND ORDERS FOR EMERGENCY DETENTION.
(a) In General.--Notwithstanding any other provision of
this title, and subject to subsection (b), the President or
the Director of National Intelligence may authorize the Armed
Forces of the United States or an element of the intelligence
community, acting within the scope of existing authority, to
detain an international terrorist in a foreign jurisdiction
if the President or the Director of National Intelligence
reasonably determines that--
(1) failure to detain that individual will result in a risk
of imminent death or imminent serious bodily injury to any
individual or imminent damage to or destruction of any United
States facility; and
(2) the factual basis for issuance of an order of rendition
under paragraphs (3) and (7) of section 104(a) exists.
(b) Notice and Application.--The President or the Director
of National Intelligence may authorize an individual be
detained under subsection (a) if--
(1) the President or the Director of National Intelligence,
or the designee of the President or the Director of National
Intelligence, at the time of such authorization, immediately
notifies the Foreign Intelligence Surveillance Court that the
President or the Director of National Intelligence has
determined to authorize that an individual be detained under
subsection (a); and
(2) an application in accordance with this title is made to
the Foreign Intelligence Surveillance Court as soon as
practicable, but not more than 72 hours after the President
or the Director of National Intelligence authorizes that
individual to be detained.
(c) Emergency Rendition Prohibited.--The President or the
Director of National Intelligence may not authorize the
rendition to a foreign jurisdiction of, and the Armed Forces
of the United States or an element of the intelligence
community may not render to a foreign jurisdiction, an
individual detained under this section, unless an order under
section 104 authorizing the rendition of that individual has
been obtained.
(d) Nondelegation.--Except as provided in this section, the
authority and duties of the President or the Director of
National Intelligence under this section may not be
delegated.
SEC. 106. UNIFORM STANDARDS FOR THE INTERROGATION OF
INDIVIDUALS DETAINED BY THE GOVERNMENT OF THE
UNITED STATES.
(a) In General.--No individual in the custody or under the
effective control of an officer or agent of the United States
or detained in a facility operated by or on behalf of the
Department of Defense, the Central Intelligence Agency, or
any other agency of the Government of the United States shall
be subject to any treatment or technique of interrogation not
authorized by and listed in United States Army Field Manual
2-22.3, entitled ``Human Intelligence Collector Operations''.
(b) Applicability.--Subsection (a) shall not apply with
respect to any individual in
[[Page S9925]]
the custody or under the effective control of the Government
of the United States based on--
(1) an arrest or conviction for violating Federal criminal
law; or
(2) an alleged or adjudicated violation of the immigration
laws of the United States.
(c) Construction.--Nothing in this section may be construed
to diminish the rights under the Constitution of the United
States of any individual in the custody or within the
physical jurisdiction of the Government of the United States.
SEC. 107. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL
ENGAGED IN AN INTERROGATION.
(a) Protection of United States Government Personnel.--In a
civil action or criminal prosecution against an officer or
agent of the United States relating to an interrogation, it
shall be a defense that such officer or agent of the United
States complied with section 106.
(b) Applicability.--Subsection (a) shall not apply with
respect to any civil action or criminal prosecution relating
to the interrogation of an individual in the custody or under
the effective control of the Government of the United States
based on--
(1) an arrest or conviction for violating Federal criminal
law; or
(2) an alleged or adjudicated violation of the immigration
laws of the United States.
(c) Provision of Counsel.--In any civil action or criminal
prosecution arising from the alleged use of an authorized
interrogation practice by an officer or agent of the United
States, the Government of the United States may provide or
employ counsel, and pay counsel fees, court costs, bail, and
other expenses incident to representation.
(d) Construction.--Nothing in this section may be
construed--
(1) to limit or extinguish any defense or protection from
suit, civil or criminal liability, or damages otherwise
available to a person or entity; or
(2) to provide immunity from prosecution for any criminal
offense by the proper authorities.
SEC. 108. MONITORING AND REPORTING REGARDING THE TREATMENT,
CONDITIONS OF CONFINEMENT, AND STATUS OF LEGAL
PROCEEDINGS OF INDIVIDUALS RENDERED TO FOREIGN
GOVERNMENTS.
(a) In General.--The Secretary of State shall--
(1) regularly monitor the treatment of, the conditions of
confinement of, and the progress of legal proceedings against
an individual rendered to a foreign legal jurisdiction under
section 104; and
(2) not later than 6 months after the date of enactment of
this Act, and every 6 months thereafter, submit to the Select
Committee on Intelligence of the Senate and the Permanent
Select Committee on Intelligence of the House of
Representatives a report detailing the treatment of, the
conditions of confinement of, and the progress of legal
proceedings against any individual rendered to a foreign
legal jurisdiction under section 104.
(b) Applicability.--The Secretary of State shall include in
the reports required under subsection (a)(2) information
relating to the treatment of, the conditions of confinement
of, and the progress of legal proceedings against an
individual rendered to a foreign legal jurisdiction under
section 104 during the period beginning on the date that
individual was rendered to a foreign legal jurisdiction under
section 104 and ending on the date that individual is
released from custody by that foreign legal jurisdiction.
SEC. 109. REPORT TO CONGRESS.
The Attorney General shall--
(1) submit to the Select Committee on Intelligence of the
Senate and the Permanent Select Committee on Intelligence of
the House of Representatives an annual report that contains--
(A) the total number of applications made for an order of
rendition under section 104;
(B) the total number of such orders granted, modified, or
denied;
(C) the total number of emergency authorizations issued
under section 105; and
(D) such other information as requested by the Select
Committee on Intelligence of the Senate or the Permanent
Select Committee on Intelligence of the House of
Representatives; and
(2) make available to the Select Committee on Intelligence
of the Senate and the Permanent Select Committee on
Intelligence of the House of Representatives a copy of each
application made and order issued under this title.
SEC. 110. CIVIL LIABILITY.
(a) In General.--An aggrieved person shall have a cause of
action against the head of the department or agency that
subjected that aggrieved person to extraterritorial detention
or a rendition in violation of this title and shall be
entitled to recover--
(1) actual damages, but not less than liquidated damages of
$1,000 for each day of the violation;
(2) punitive damages; and
(3) reasonable attorney's fees.
(b) Jurisdiction.--The United States District Court for the
District of Columbia shall have original jurisdiction over
any claim under this section.
SEC. 111. ADDITIONAL RESOURCES FOR FOREIGN INTELLIGENCE
SURVEILLANCE COURT.
(a) Authority for Additional Judges.--Section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803(a)) is amended--
(1) by inserting ``(1)'' after ``(a)'';
(2) in paragraph (1), as so designated, by inserting ``at
least'' before ``seven of the United States judicial
circuits'';
(3) by striking ``If any judge so designated'' and
inserting the following:
``(3) If any judge so designated''; and
(4) by inserting after paragraph (1), as so designated, the
following:
``(2) In addition to the judges designated under paragraph
(1), the Chief Justice of the United States may designate as
judges of the court established by paragraph (1) such judges
appointed under article III of the Constitution of the United
States as the Chief Justice determines appropriate in order
to provide for the prompt and timely consideration of
applications under sections 103 of the National Security with
Justice Act of 2007 for orders of rendition under section 104
of that Act. Any judge designated under this paragraph shall
be designated publicly.''.
(b) Additional Legal and Other Personnel for Foreign
Intelligence Surveillance Court.--There is authorized for the
Foreign Intelligence Surveillance Court such additional staff
personnel as may be necessary to facilitate the prompt
processing and consideration by that Court of applications
under section 103 for orders of rendition under section 104
approving rendition of an international terrorist. The
personnel authorized by this section are in addition to any
other personnel authorized by law.
SEC. 112. RULE OF CONSTRUCTION.
Nothing in this title may be construed as altering or
adding to existing authorities for the extraterritorial
detention or rendition of any individual.
SEC. 113. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as may be
necessary to carry out this title and the amendments made by
this title.
TITLE II--ENEMY COMBATANTS
SEC. 201. MODIFICATION OF DEFINITION OF ``UNLAWFUL ENEMY
COMBATANT'' FOR PURPOSES OF MILITARY
COMMISSIONS.
Section 948a(1)(A) of title 10, United States Code, is
amended--
(1) in the matter preceding clause (i), by striking
``means''; and
(2) by striking clauses (i) and (ii) and inserting the
following:
``(i) means a person who is not a lawful enemy combatant
and who--
``(I) has engaged in hostilities against the United States;
or
``(II) has purposefully and materially supported
hostilities against the United States (other than hostilities
engaged in as a lawful enemy combatant); and
``(ii) does not include any person who is--
``(I) a citizen of the United States or legally admitted to
the United States; and
``(II) taken into custody in the United States.''.
TITLE III--HABEAS CORPUS
SEC. 301. EXTENDING STATUTORY HABEAS CORPUS TO DETAINEES.
(a) In General.--Section 2241 of title 28, United States
Code, is amended by striking subsection (e) and inserting the
following:
``(e)(1) The United States District Court for the District
of Columbia shall have jurisdiction to hear or consider an
application for a writ of habeas corpus filed by or on behalf
of any person detained by the United States who has been--
``(A) determined by the United States to have been properly
detained as an enemy combatant; or
``(B) detained by the United States for more than 90 days
without such a determination.
``(2) The United States District Court for the District of
Columbia shall have jurisdiction to hear or consider an
application for a writ of habeas corpus filed by or on behalf
of any person detained by the United States who has been
tried by military commission established under chapter 47A of
title 10, United States Code, and has exhausted the appellate
procedure under subchapter VI of that chapter.''.
(b) Technical and Conforming Amendments.--
(1) In general.--Subchapter VI of chapter 47A of title 10,
United States Code, is amended--
(A) by striking section 950g;
(B) in section 950h--
(i) in subsection (a), by adding at the end the following:
``Appointment of appellate counsel under this subsection
shall be for purposes of this chapter only, and not for any
proceedings relating to an application for a writ of habeas
corpus relating to any matter tried by a military
commission.''; and
(ii) in subsection (c), by striking ``, the United States
Court of Appeals for the District of Columbia, and the
Supreme Court,'';
(C) in section 950j--
(i) by striking ``(a) Finality.--''; and
(ii) by striking subsection (b); and
(D) in the table of sections at the beginning of that
subchapter, by striking the item relating to section 950g.
(2) Detainee treatment acts.--
(A) In general.--Section 1005(e) of the Detainee Treatment
Act of 2005 (Public Law 109-148; 119 Stat. 2742; 10 U.S.C.
801 note) is amended--
(i) in subsection (e)--
(I) by striking paragraph (2); and
(II) by redesignating paragraphs (3) and (4) as paragraphs
(2) and (3), respectively; and
(ii) in subsection (h)(2)--
(I) by striking ``Paragraphs (2) and (3)'' and inserting
``Paragraph (2)''; and
[[Page S9926]]
(II) by striking ``one of such paragraphs'' and inserting
``that paragraph''.
(B) Other amendments.--Section 1405 of the Detainee
Treatment Act of 2005 (Public Law 109-163; 119 Stat. 3475; 10
U.S.C. 801 note) is amended--
(i) in subsection (e)--
(I) by striking paragraph (2); and
(II) by redesignating paragraphs (3) and (4) as paragraphs
(2) and (3), respectively; and
(ii) in subsection (h)(2)--
(I) by striking ``Paragraphs (2) and (3)'' and inserting
``Paragraph (2)''; and
(II) by striking ``one of such paragraphs'' and inserting
``that paragraph''.
(c) Rule of Construction.--Notwithstanding subsection (a),
no court, justice, or judge shall have jurisdiction to
consider an action described in subparagraph (a) brought by
an alien who is in the custody of the United States, in a
zone of active hostility involving the United States Armed
Forces, and where the United States is implementing United
States Army Reg 190-8 (1997) or any successor, as certified
by the Secretary of Defense.
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