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Text of the National Security with Justice Act of 2007

This bill was introduced on July 25, 2007, in a previous session of Congress, but was not enacted. The text of the bill below is as of Jul 25, 2007 (Introduced).

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II

110th CONGRESS

1st Session

S. 1876

IN THE SENATE OF THE UNITED STATES

July 25, 2007

introduced the following bill; which was read twice and referred to the Committee on the Judiciary

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.

1.

Short title

This Act may be cited as the National Security with Justice Act of 2007.

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.

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.

I

Extraterritorial detention and rendition

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 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.

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.

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.

.

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).

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.

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 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.

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.

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.

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.

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.

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.

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.

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.

II

Enemy combatants

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.

.

III

Habeas corpus

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

(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.