[h4]
Subtitle D--Detainee Matters
[/h4][h3]SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.[/h3]
- (a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
- (b) Covered Persons- A covered person under this section is any person as follows:
- (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
- (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
- (c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:
- (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
- (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
- (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
- (4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.
- (d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
- (e) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).
[h3]SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.[/h3]
- (a) Custody Pending Disposition Under Law of War-
- (1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
- (2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined--
- (A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
- (B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
- (3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.
- (4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.
- (b) Applicability to United States Citizens and Lawful Resident Aliens-
- (1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
- (2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
- (c) Implementation Procedures-
- (1) IN GENERAL- Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
- (2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:
- (A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
- (B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.
- (C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation session which is ongoing at the time the determination is made and does not require the interruption of any such ongoing session.
- (D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other government officials of the United States are granted access to an individual who remains in the custody of a third country.
- (E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.
- (d) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.
[h3]SEC. 1033. REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.[/h3]
- (a) Certification Required Prior to Transfer-
- (1) IN GENERAL- Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense for fiscal year 2012 to transfer any individual detained at Guantanamo to the custody or 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 subsection (b) not later than 30 days before the transfer of the individual.
- (2) EXCEPTION- Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate--
- (A) an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify Congress of promptly after issuance); or
- (B) a pre-trial agreement entered in a military commission case prior to the date of the enactment of this Act.
- (b) Certification- A certification described in this subsection is a written certification made by the Secretary of Defense, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, that the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo is to be transferred--
- (1) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;
- (2) maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility;
- (3) 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;
- (4) has taken or agreed to take effective actions to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future;
- (5) has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity; and
- (6) has agreed to share with the United States any information that--
- (A) is related to the individual or any associates of the individual; and
- (B) could affect the security of the United States, its citizens, or its allies.
- (c) Prohibition in Cases of Prior Confirmed Recidivism-
- (1) PROHIBITION- Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise made available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or 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 who was detained at United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.
- (2) EXCEPTION- Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate--
- (A) an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify Congress of promptly after issuance); or
- (B) a pre-trial agreement entered in a military commission case prior to the date of the enactment of this Act.
- (d) National Security Waiver-
- (1) IN GENERAL- The Secretary of Defense may waive the applicability to a detainee transfer of a certification requirement specified in paragraph (4) or (5) of subsection (b) or the prohibition in subsection (c) if the Secretary, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, determines that--
- (A) alternative actions will be taken to address the underlying purpose of the requirement or requirements to be waived;
- (B) in the case of a waiver of paragraph (4) or (5) of subsection (b), it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated, but the actions to be taken under subparagraph (A) will substantially mitigate such risks with regard to the individual to be transferred;
- (C) in the case of a waiver of subsection (c), the Secretary has considered any confirmed case in which an individual who was transferred to the country subsequently engaged in terrorist activity, and the actions to be taken under subparagraph (A) will substantially mitigate the risk of recidivism with regard to the individual to be transferred; and
- (D) the transfer is in the national security interests of the United States.
- (2) REPORTS- Whenever the Secretary makes a determination under paragraph (1), the Secretary shall submit to the appropriate committees of Congress, not later than 30 days before the transfer of the individual concerned, the following:
- (A) A copy of the determination and the waiver concerned.
- (B) A statement of the basis for the determination, including--
- (i) an explanation why the transfer is in the national security interests of the United States; and
- (ii) in the case of a waiver of paragraph (4) or (5) of subsection (b), an explanation why it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated.
- (C) A summary of the alternative actions to be taken to address the underlying purpose of, and to mitigate the risks addressed in, the paragraph or subsection to be waived.
- (e) Definitions- In this section:
- (1) The term `appropriate committees of Congress' means--
- (A) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and
- (B) the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.
- (2) The term `individual detained at Guantanamo' means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who--
- (A) is not a citizen of the United States or a member of the Armed Forces of the United States; and
- (i) in the custody or under the control of the Department of Defense; or
- (ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.
- (3) 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).
- (f) Repeal of Superseded Authority- Section 1033 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383; 124 Stat. 4351) is repealed.
[h3]SEC. 1034. PROHIBITION ON USE OF FUNDS TO CONSTRUCT OR MODIFY FACILITIES IN THE UNITED STATES TO HOUSE DETAINEES TRANSFERRED FROM UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.[/h3]
- (a) In General- No amounts authorized to be appropriated or otherwise made available to the Department of Defense for fiscal year 2012 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 unless authorized by Congress.
- (b) Exception- The prohibition in subsection (a) shall not apply to any modification of facilities at United States Naval Station, Guantanamo Bay, Cuba.
- (c) Individual Detained at Guantanamo Defined- In this section, the term `individual detained at Guantanamo' has the meaning given that term in section 1033(e)(2).
- (d) Repeal of Superseded Authority- Section 1034 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383; 124 Stat. 4353) is amended by striking subsections (a), (b), and (c).
[h3]SEC. 1035. PROCEDURES FOR PERIODIC DETENTION REVIEW OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.[/h3]
- (a) Procedures Required- Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth procedures for implementing the periodic review process required by Executive Order No. 13567 for individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force (Public Law 107-40).
- (b) Covered Matters- The procedures submitted under subsection (a) shall, at a minimum--
- (1) clarify that the purpose of the periodic review process is not to determine the legality of any detainee's law of war detention, but to make discretionary determinations whether or not a detainee represents a continuing threat to the security of the United States;
- (2) clarify that the Secretary of Defense is responsible for any final decision to release or transfer an individual detained in military custody at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Executive Order referred to in subsection (a), and that in making such a final decision, the Secretary shall consider the recommendation of a periodic review board or review committee established pursuant to such Executive Order, but shall not be bound by any such recommendation; and
- (3) ensure that appropriate consideration is given to factors addressing the need for continued detention of the detainee, including--
- (A) the likelihood the detainee will resume terrorist activity if transferred or released;
- (B) the likelihood the detainee will reestablish ties with al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners if transferred or released;
- (C) the likelihood of family, tribal, or government rehabilitation or support for the detainee if transferred or released;
- (D) the likelihood the detainee may be subject to trial by military commission; and
- (E) any law enforcement interest in the detainee.
- (c) Appropriate Committees of Congress Defined- In this section, the term `appropriate committees of Congress' means--
- (1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and
- (2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.
[h3]SEC. 1036. PROCEDURES FOR STATUS DETERMINATIONS.[/h3]
- (a) In General- Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107-40) for purposes of section 1031.
- (b) Elements of Procedures- The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force:
- (1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.
- (2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.
- (c) Report on Modification of Procedures- The Secretary of Defense shall submit to the appropriate committees of Congress a report on any modification of the procedures submitted under this section. The report on any such modification shall be so submitted not later than 60 days before the date on which such modification goes into effect.
- (d) Appropriate Committees of Congress Defined- In this section, the term `appropriate committees of Congress' means--
- (1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and
- (2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.
[h3]SEC. 1037. CLARIFICATION OF RIGHT TO PLEAD GUILTY IN TRIAL OF CAPITAL OFFENSE BY MILITARY COMMISSION.[/h3]
- (a) Clarification of Right- Section 949m(b)(2) of title 10, United States Code, is amended--
- (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'; and
- (2) in subparagraph (D), by inserting `on the sentence' after `vote was taken'.
- (b) Pre-trial Agreements- Section 949i of such title is amended by adding at the end the following new subsection:
- `(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.
- `(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 unanimous vote of all members of a military commission concurring in the sentence of death as provided in section 949m(b)(2)(D) of this title.'.
http://thomas.loc.gov/cgi-bin/query/F?c112:1:./temp/~c112yvEQ2O:e462417:
