S 3081 IS
111th CONGRESS
2d Session
S . 3081To 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 BILLTo 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.
Rabs,thanks for the ping and TF, thanks for posting the bill.This section bothers me, because of 2(E). Even though 2(D) seems to limit the definiton of a high value detainee to Al Qaeda, (E) undoes that limitation. Besides, how does one prove that someone is a member of AQ or one of its affiliates—look in their yearbook?
Another McStupid boondoggle, aimed to make him suddenly look Conservative in a re-election year.
I am disappointed that Sessions and Inhofe chose to be mixed up in this ambiguous bill. Lieberman—no surprise there—you can find Joe whichever way the wind is blowing.
(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
SEC. 6. DEFINITIONS.
In this Act:
(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)).
http://vlex.com/source/us-code-domestic-security-1005
(4) The term “critical infrastructure” has the meaning given that term in section 5195c(e) of title 42.
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http://www.law.cornell.edu/uscode/42/usc_sec_42_00005195-—c000-.html
TITLE 42 > CHAPTER 68 > SUBCHAPTER IV-B > § 5195c
§ 5195c. Critical infrastructures protection
(e) Critical infrastructure defined
In this section, the term “critical infrastructure” means systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.
***
(9) The term “key resources” means publicly or privately controlled resources essential to the minimal operations of the economy and government.
(15) The term “terrorism” means any activity that - (A) involves an act that - (i) is dangerous to human life or potentially destructive of critical infrastructure or key resources; and (ii) is a violation of the criminal laws of the United States or of any State or other subdivision of the United States; and (B) appears to be intended - (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping. (16)(A) The term “United States”, when used in a geographic sense, means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, any possession of the United States, and any waters within the jurisdiction of the United States.
Poster’s note: I already see a problem here, since the definition of terrorism is not found in ARTICLE 519c 101(16), but rather 101(15)!
However, notice the clause in SEC 6 (15)A(i)
“…is dangerous to human life or potentially destructive of critical infrastructure or key resources;”
“Dangerous to” or “potentially destructive” of what “key resource”?
The term “key resources” means publicly or privately controlled resources essential to the minimal operations of the economy and government.
Therefore, anything defined (by whom) as “dangerous to human life” or “potentially destructive of” a publicly or privately controlled resource (perhaps the internet?), deemed (by whom) essential to the operations of the economy and government, might constitute a threat. Could an American citizen’s public protest, dissent, or blogging or denunciation of a government official or policy be considered “dangerous to” or “potentially destructive” to the minimal operations of the economy and government?
It gets worse under subsection (B)...
(B) appears to be intended - (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion;
Goodbye TEA party protests, marches on Washington DC, or any other form of active dissent against the government!
Back to the Bill in question...
SEC. 3. INTERROGATION AND DETERMINATION OF STATUS OF SUSPECTED UNPRIVILEGED ENEMY BELLIGERENTS.
(d) Regulations-
(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.
Poster’s note: “…shall be governed by such regulations and guidance as the President shall establish…” Considering certain definitions, this statement is troubling.
(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.
Posters note: Potential threat an individual poses? Who determines this, and based on what criteria? (This is especially true in light of the DHS memorandum about “potential domestic threats.”)
(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.
Poster’s note: Oh this clause is ripe for abuse!
(D) Membership in al Qaeda or in a terrorist group affiliated with al Qaeda.
(E) Such other matters as the President considers appropriate.
Poster’s note: Under (E) any protections assumed by the definitions and stipulations made in this section become null.