HR 968 IHCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

1st SessionCommentsClose CommentsPermalink

H. R. 968CommentsClose CommentsPermalink

To provide for certain processes and limitations relating to the detention of certain individuals by the United States, and for other purposes.CommentsClose CommentsPermalink

IN THE HOUSE OF REPRESENTATIVESCommentsClose CommentsPermalink

March 9, 2011CommentsClose CommentsPermalink

Mr. MCKEON (for himself, Mr. THORNBERRY, Mr. SCHILLING, Mr. WITTMAN, Mr. FORBES, Mr. GRIFFIN of Arkansas, Mr. ROONEY, Mr. SHUSTER, Mr. WILSON of South Carolina, Mr. AKIN, Mr. LAMBORN, Mr. ROGERS of Alabama, Mr. TURNER, Mr. WEST, Mr. FLEMING, Mr. LOBIONDO, Mr. CONAWAY, Mr. RIGELL, Mr. COFFMAN of Colorado, Mr. RUNYAN, Mr. MILLER of Florida, Mr. KLINE, Mr. HECK, Mr. PALAZZO, and Mr. BROOKS) introduced the following bill; which was referred to the Committee on Armed ServicesCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

To provide for certain processes and limitations relating to the detention of certain individuals by the United States, and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title- This Act may be cited as the ‘Detainee Security Act of 2011’.CommentsClose CommentsPermalink





(b) Table of Contents- The table of contents for this Act is as follows:CommentsClose CommentsPermalink





Sec. 1. Short title; table of contents.CommentsClose CommentsPermalink





Sec. 2. Definitions.CommentsClose CommentsPermalink





Sec. 3. Process for the review of eligibility for continued detention of individuals detained at Naval Station, Guantanamo Bay, Cuba.CommentsClose CommentsPermalink





Sec. 4. Requirement for military custody for members of al Qaeda, the Taliban, and associated forces subject to the Authorization for Use of Military Force.CommentsClose CommentsPermalink





Sec. 5. Prohibitions relating to the transfer and release of certain detainees.CommentsClose CommentsPermalink





Sec. 6. Limitation on authority to implement Executive Order of March 7, 2011.CommentsClose CommentsPermalink





Sec. 7. Affirmation of armed conflict with al-Qaeda, the Taliban, and associated forces.CommentsClose CommentsPermalink





Sec. 8. Prohibition on family member visitation of individuals detained at Naval Station, Guantanamo Bay, Cuba.CommentsClose CommentsPermalink





Sec. 9. Permanent prohibition on use of funds to construct or modify facilities in the United States to house detainees transferred from Naval Station Guantanamo Bay, Cuba.CommentsClose CommentsPermalink





Sec. 10. Clarification of right to plead guilty in trial of capital offense by military commission.CommentsClose CommentsPermalink

SEC. 2. DEFINITIONS.

In this Act:CommentsClose CommentsPermalink





(1) The term ‘individual detained at Guantanamo’ means any individual who is located at United States Naval Station, Guantanamo Bay, Cuba, on or after March 7, 2011, who--CommentsClose CommentsPermalink





(A) is not a citizen of the United States or a member of the Armed Forces of the United States; andCommentsClose CommentsPermalink





(B) is in the custody or under the effective control of the Department of Defense.CommentsClose CommentsPermalink





(2) The term ‘appropriate committees of Congress’ means--CommentsClose CommentsPermalink





(A) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; andCommentsClose CommentsPermalink





(B) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.CommentsClose CommentsPermalink

SEC. 3. PROCESS FOR THE REVIEW OF ELIGIBILITY FOR CONTINUED DETENTION OF INDIVIDUALS DETAINED AT NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) Restrictions on Review- Any administrative board or panel established by any department or agency of the Federal Government for the purpose of conducting reviews to determine the eligibility for continued detention of an individual detained at Guantanamo shall be subject to the following restrictions:CommentsClose CommentsPermalink





(1) Such an individual whose eligibility for continued detention is being reviewed shall not be represented by legal counsel in any proceeding of the board or panel. Such an individual may be assisted by a military personal representative with the appropriate security clearance.CommentsClose CommentsPermalink





(2) A review of an individual’s eligibility for continued detention may not take place sooner than 21 days after the individual first becomes an individual detained at Guantanamo.CommentsClose CommentsPermalink





(3) Recommendations pursuant to any such review shall be made by a panel consisting of military experts in operations, intelligence, and counterterrorism matters.CommentsClose CommentsPermalink





(4) The Government’s submission to the board or panel regarding the threat posed by such an individual 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 substitute or summary of classified information, rather than the underlying information.CommentsClose CommentsPermalink





(5) Such an individual shall not be subject to any such review under circumstances as follows:CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(C) In the case of such an individual who has been ordered released by a court of competent jurisdiction.CommentsClose CommentsPermalink





(b) Considerations- In determining the recommendation to make regarding an individual detained at Guantanamo under any review process, a panel shall consider--CommentsClose CommentsPermalink





(1) whether the individual represents a continuing threat to the United States or its allies; andCommentsClose CommentsPermalink





(2) whether there are other factors that form a need for continued detention of the individual, including--CommentsClose CommentsPermalink





(A) the likelihood the individual will resume terrorist activity if transferred or released;CommentsClose CommentsPermalink





(B) the likelihood the individual will reestablish ties with an organization engaged in hostilities against the United States or its allies if transferred or released;CommentsClose CommentsPermalink





(C) the intelligence value of information known by the individual;CommentsClose CommentsPermalink





(D) the likelihood of family, tribal, or government rehabilitation or support for the individual if transferred or released; andCommentsClose CommentsPermalink





(E) the likelihood the individual may be subject to trial by military commission; andCommentsClose CommentsPermalink





(3) with respect to consideration of whether to transfer an individual to the custody of a foreign country, whether that country--CommentsClose CommentsPermalink





(A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(E) has taken such steps as the Secretary determines are necessary to ensure that the individual cannot engage or re-engage in any terrorist activity;CommentsClose CommentsPermalink





(F) has agreed to share any information with the United States that--CommentsClose CommentsPermalink





(i) is related to the individual or any associates of the individual; andCommentsClose CommentsPermalink





(ii) could affect the security of the United States, its citizens, or its allies; andCommentsClose CommentsPermalink





(G) has agreed to allow appropriate agencies of the United States to have access to the individual, if requested; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

SEC. 4. REQUIREMENT FOR MILITARY CUSTODY FOR MEMBERS OF AL QAEDA, THE TALIBAN, AND ASSOCIATED FORCES SUBJECT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) In General- Chapter 3 of title 10, United States Code, is amended by adding at the end the following new section:CommentsClose CommentsPermalink

‘SEC. 130e. REQUIREMENT FOR MILITARY CUSTODY FOR MEMBERS OF AL QAEDA, THE TALIBAN, AND ASSOCIATED FORCES SUBJECT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

‘(a) Custody Pending Disposition Determination- (1) Except as provided in paragraph (3), an individual who is eligible for detention pursuant to the Authorization 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.CommentsClose CommentsPermalink





‘(2) The disposition of a person as described in paragraph (1) may include the following:CommentsClose CommentsPermalink





‘(A) Long-term detention without trial until the end of hostilities against the nations, organizations, and persons subject to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note).CommentsClose CommentsPermalink





‘(B) Trial under chapter 47A of title 10, United States Code.CommentsClose CommentsPermalink





‘(3) The Secretary of Defense, in consultation with the Director of National Intelligence, may waive the requirement under paragraph (1) if the Secretary submits to the appropriate committees of Congress certification in writing that such a waiver is in the national security interests of the United States.CommentsClose CommentsPermalink





‘(b) Definition- In this section, The term ‘appropriate committees of Congress’ means--CommentsClose CommentsPermalink





‘(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; andCommentsClose CommentsPermalink





‘(2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.’.CommentsClose CommentsPermalink





(b) Clerical Amendment- The table of sections at the beginning of such chapter is amended by adding at the end the following new item:CommentsClose CommentsPermalink





‘130e. Requirement for military custody for members of al Qaeda, the Taliban, and associated forces subject to the Authorization for Use of Military Force.’.CommentsClose CommentsPermalink





(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 Authorization 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.CommentsClose CommentsPermalink

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:CommentsClose CommentsPermalink

‘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 eligible 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.CommentsClose CommentsPermalink





‘(b) Limitation on Transfer to Foreign Countries- (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 unless the Secretary submits to Congress the certification described in paragraph (2) by not later than 30 days before the transfer of the individual.CommentsClose CommentsPermalink





‘(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 government of the foreign country or the recognized leadership of the foreign entity to which the individual described in paragraph (5) is to be transferred--CommentsClose CommentsPermalink





‘(A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(E) has taken such steps as the Secretary determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity;CommentsClose CommentsPermalink





‘(F) has agreed to share any information with the United States that--CommentsClose CommentsPermalink





‘(i) is related to the individual or any associates of the individual; andCommentsClose CommentsPermalink





‘(ii) could affect the security of the United States, its citizens, or its allies; andCommentsClose CommentsPermalink





‘(G) has agreed to allow appropriate agencies of the United States to have access to the individual, if requested.CommentsClose CommentsPermalink





‘(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 activity.CommentsClose CommentsPermalink





‘(B) The Secretary of Defense may waive the prohibition 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 certification described in paragraph (2) relating to such transfer, the determination of the Secretary under this paragraph.CommentsClose CommentsPermalink





‘(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 notify Congress promptly upon issuance of any such order.CommentsClose CommentsPermalink





‘(5) An individual described in this paragraph is an individual who--CommentsClose CommentsPermalink





‘(A) is not a citizen of the United States or a member of the Armed Forces;CommentsClose CommentsPermalink





‘(B) is in the custody or under the effective control of the Department of Defense; andCommentsClose CommentsPermalink





‘(C) is--CommentsClose CommentsPermalink





‘(i) not a national of Afghanistan and is under detention at Bagram Air Base, Afghanistan; orCommentsClose CommentsPermalink





‘(ii) under detention at United States Naval Station, Guantanamo Bay, Cuba, as of January 21, 2011.CommentsClose CommentsPermalink





‘(c) Definitions- In this section:CommentsClose CommentsPermalink





‘(1) The term ‘individual who is eligible for detention pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note)’ includes--CommentsClose CommentsPermalink





‘(A) any individual who is part of, or is substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or cobelligerents; andCommentsClose CommentsPermalink





‘(B) any individual who has engaged in hostilities or has substantially supported hostilities against the United States or its cobelligerents on behalf of or in aid of al-Qaeda, the Taliban, or associated forces.CommentsClose CommentsPermalink





‘(2) The term ‘foreign terrorist organization’ means any organization so designated by the Secretary of State under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).’.CommentsClose CommentsPermalink





(b) Clerical Amendment- The table of sections at the beginning of such chapter, as amended by section 4, is further amended by adding at the end the following new item:CommentsClose CommentsPermalink





‘130f. Prohibitions relating to the transfer and release of certain detainees.’.CommentsClose CommentsPermalink

SEC. 6. LIMITATION ON AUTHORITY TO IMPLEMENT EXECUTIVE ORDER OF MARCH 7, 2011.

(a) Limitation- No action may be taken to implement the Executive Order entitled ‘Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force’ and dated March 7, 2011, until the Secretary of Defense submits to the appropriate committees of Congress a national security protocol applicable to each individual who is detained at United States Naval Station, Guantanamo Bay, Cuba, as of the date of March 7, 2011. Each such national security protocol shall include a description of each of the following:CommentsClose CommentsPermalink





(1) The authority of an individual covered by the protocol to have access to military or civilian legal representation, or both, and any limitations on such access.CommentsClose CommentsPermalink





(2) Any items that are considered contraband for such an individual.CommentsClose CommentsPermalink





(3) Any category of information that such an individual is not permitted to discuss or include in any communications made to persons other than Federal Government personnel and members of the Armed Forces or materials the individual has or creates.CommentsClose CommentsPermalink





(4) Any types of materials to which such an individual is authorized to have access and the process by which such materials, along with materials created by the individual, are reviewed.CommentsClose CommentsPermalink





(5) The nature of any communication such an individual is permitted to have with any persons other than Federal Government personnel and members of the Armed Forces, including mail, phone calls, and video teleconferences, and the extent to which any such communication is to be monitored.CommentsClose CommentsPermalink





(6) Any meetings the individual is permitted to have with any persons other than Federal Government personnel and members of the Armed Forces and the extent to which such a meeting is to be monitored.CommentsClose CommentsPermalink





(7) Any category of information or material that may not be provided to such an individual by persons other than Federal Government personnel and members of the Armed Forces or by the individual’s military or civilian legal counsel or military personal representative.CommentsClose CommentsPermalink





(8) The manner in which any legal materials or communications subject to review under the protocol will be monitored for the protection of national security while also ensuring that any applicable legal privileges are maintained for purposes of litigation related to trial under chapter 47A of title 10, United States Code, or a petition for habeas corpus.CommentsClose CommentsPermalink





(9) The measures planned to be taken to implement and enforce the provisions of the security protocol.CommentsClose CommentsPermalink





(b) Treatment of Classified Material in Security Protocols- A security protocol submitted under subsection (a) shall be in unclassified form but may contain a classified annex.CommentsClose CommentsPermalink

SEC. 7. AFFIRMATION OF ARMED CONFLICT WITH AL-QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.

(a) In General- Chapter 3 of title 10, United States Code, as amended by sections 4 and 5, is further amended by adding at the end the following new section:CommentsClose CommentsPermalink

‘SEC. 130g. AFFIRMATION OF ARMED CONFLICT WITH AL-QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.

‘(a) Affirmation- Congress affirms that--CommentsClose CommentsPermalink





‘(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;CommentsClose CommentsPermalink





‘(2) the armed conflict with al-Qaeda, the Taliban, and associated forces includes nations, organizations, and persons who--CommentsClose CommentsPermalink





‘(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or cobelligerents; orCommentsClose CommentsPermalink





‘(B) have engaged in hostilities or have substantially supported hostilities against the United States or its cobelligerents on behalf of or in aid of al-Qaeda, the Taliban, or associated forces; andCommentsClose CommentsPermalink





‘(3) the President’s authority includes the authority to detain belligerents, including persons described in paragraph (2) until the termination of hostilities.CommentsClose CommentsPermalink





‘(b) Congressional Notification- (1) The Secretary of Defense shall submit to Congress notification in writing--CommentsClose CommentsPermalink





‘(A) not later than 90 days after the date of the enactment of this section, of any entity that is considered an associated force for purposes of this section as of such date; andCommentsClose CommentsPermalink





‘(B) after such date, whenever any entity is newly considered an associated force for purposes of this section.CommentsClose CommentsPermalink





‘(2) A notification under this subsection may be classified, as the Secretary determines is necessary.’.CommentsClose CommentsPermalink





(b) Clerical Amendment- The table of sections at the beginning of such chapter, as amended by sections 4 and 5, is further amended by adding at the end the following new item:CommentsClose CommentsPermalink





‘130g. Affirmation of armed conflict with al-Qaeda, the Taliban, and associated forces.’.CommentsClose CommentsPermalink

SEC. 8. PROHIBITION ON FAMILY MEMBER VISITATION OF INDIVIDUALS DETAINED AT NAVAL STATION, GUANTANAMO BAY, CUBA.

The Secretary of Defense shall prohibit any person who is a family member of an individual detained at Guantanamo from visiting the individual at United States Naval Station, Guantanamo Bay, Cuba.CommentsClose CommentsPermalink

SEC. 9. PERMANENT PROHIBITION ON USE OF FUNDS TO CONSTRUCT OR MODIFY FACILITIES IN THE UNITED STATES TO HOUSE DETAINEES TRANSFERRED FROM NAVAL STATION GUANTANAMO BAY, CUBA.

(a) In General- No amounts authorized to be appropriated or otherwise made available to the Department of Defense may be used to construct or modify any facility in the United States, its territories, or possessions to house any individual detained at Guantanamo for the purposes of detention or imprisonment in the custody or under the control of the Department of Defense.CommentsClose CommentsPermalink





(b) Exception- The prohibition in subsection (a) shall not apply to any modification of facilities at United States Naval Station, Guantanamo Bay, Cuba.CommentsClose CommentsPermalink





(c) Conforming Repeal- Section 1034 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383) is amended by striking subsections (a) and (b).CommentsClose CommentsPermalink

SEC. 10. CLARIFICATION OF RIGHT TO PLEAD GUILTY IN TRIAL OF CAPITAL OFFENSE BY MILITARY COMMISSION.

(a) Clarification of Right- Section 949m(b)(2) of title 10, United States Code, is amended--CommentsClose CommentsPermalink





(1) in subparagraph (C), by inserting before the semicolon the following: ‘, or a guilty plea was accepted and not withdrawn prior to announcement of the sentence in accordance with section 949i(b) of this title’; andCommentsClose CommentsPermalink





(2) in subparagraph (D), by inserting ‘on the sentence’ after ‘vote was taken’.CommentsClose CommentsPermalink





(b) Pre-Trial Agreements- Section 949i of such title is amended by adding at the end the following new subsection:CommentsClose CommentsPermalink





‘(c) Pre-Trial Agreements- (1) A plea of guilty made by the accused that is accepted by a military judge under subsection (b) and not withdrawn prior to announcement of the sentence may form the basis for an agreement reducing the maximum sentence approved by the convening authority, including the reduction of a sentence of death to a lesser punishment, or that the case will be referred to a military commission under this chapter without seeking the penalty of death. Such an agreement may provide for terms and conditions in addition to a guilty plea by the accused in order to be effective.CommentsClose CommentsPermalink





‘(2) A plea agreement under this subsection may not provide for a sentence of death imposed by a military judge alone. A sentence of death may only be imposed by the votes of all members of a military commission concurring in the sentence of death as provided in section 949m(b)(2)(D) of this title.’.CommentsClose CommentsPermalink