THE ENEMY BELLIGERENT INTERROGATION, DETENTION, AND PROSECUTION ACT OF 2010

Statement by Sovereignthink

STATEMENT BY SENATOR McCAIN ON THE ENEMY BELLIGERENT INTERROGATION, DETENTION, AND PROSECUTION ACT OF 2010

March 4, 2010

Mr. President, I rise to introduce legislation that sets forth a clear, comprehensive policy for the detention, interrogation and trial of enemy belligerents who are suspected of engaging in hostilities against the United States.  This legislation seeks to ensure that the mistakes made during the apprehension of the Christmas Day bomber, such as reading him a Miranda warning, will never happen again and put Americans’ security at risk. 

Specifically, this bill would require unprivileged enemy belligerents suspected of engaging in hostilities against the U.S. to be held in military custody and interrogated for their intelligence value by a “high value detainee” interagency team established by the President.  This interagency team of experts in national security, terrorism, intelligence, interrogation and law enforcement will have the protection of U.S. civilians and civilian facilities as their paramount responsibility and experience in gaining actionable intelligence from high value detainees. 

These experts must, to the extent it is possible to do so, make a preliminary determination whether the detainee is an unprivileged enemy belligerent within 48 hours of a detainee being taken into custody.  The experts then must submit their determination to the Secretary of Defense and the Attorney General after consultation with the Director of National Intelligence, the Director of the Federal Bureau of Investigation, and the Director of the Central Intelligence Agency.  The Secretary of Defense and the Attorney General make a final determination and report it to the President and the appropriate committees of Congress.  In the case of any disagreement between the Secretary of Defense and the Attorney General, the President will make the final call.

A key provision of this bill is that it would prohibit a suspected enemy belligerent from being provided with a Miranda warning and being told he has a right to a lawyer and a right to refuse to cooperate.  I believe that an overwhelming majority of Americans agree that when we capture a terrorist who is suspected of carrying out or planning an attack intended to kill hundreds if not thousands of innocent civilians, our focus must be on gaining all the information possible to prevent that attack or any that may follow from occurring.  Under these circumstances, actionable intelligence must be our highest priority and criminal prosecution must be secondary.

Additionally, the legislation would authorize detention of enemy belligerents without criminal charges for the duration of the hostilities consistent with standards under the law of war which have been recognized by the Supreme Court.  Importantly, if a decision is made to hold a criminal trial after the necessary intelligence information is obtained, the bill mandates trial by military commission where we are best able to protect U.S. national security interests, including sensitive classified sources and methods, as well as the place and the people involved in the trial itself.

Mr. President, it should come as no comfort to any American that nearly eight and a half years after the attacks of 9/11 we still don’t have a clear mechanism, legal structure, and implementing policy for dealing with terrorists who we capture in the act of trying to bring about attacks on the United States and our national security interests at home and abroad.  What we saw with the Christmas Day bomber was a series of missteps and staggering failures in coordination among the most senior members of the Administration’s national security officials that have continued to be compounded by Administration apologists who still don’t seem to understand that repeating the same mistakes that were made in 2001 and 2002 is going to lead to the deaths of many more Americans. 

The vast majority of Americans understand that what happened with the Christmas Day bomber was a near catastrophe that was only prevented by sheer luck and the courage of a few of the passengers and crew.  A wide majority of Americans also realize that allowing a terrorist to be interrogated for only 50 minutes before he is given a Miranda warning and told he can obtain a lawyer and stop cooperating is not sufficient.

Let me be clear about where I think the fault lies with our current policy.  I believe that the local FBI agents who were involved with investigating the Detroit attack are patriotic Americans who are experts in the field of law enforcement.  I hold the FBI in the highest regard and believe they set the standard for law enforcement professionalism not only in the U.S., but internationally.  But it is impossible for FBI field agents to know all the information that is available to the U.S. intelligence community worldwide during the first 50 minutes of interrogation of a suspected terrorist.   We must ensure that the broad range of expertise that is available within our government is brought to bear on such high-value detainees.  This bill mandates such coordination and places the proper focus on getting intelligence to stop an attack, rather than allowing law enforcement and preparing a case for a civilian criminal trial to drive our response.

Mr. President, deliberate mass attacks that intentionally target hundreds of innocent civilians are an act of war and should not be dealt with in the same manner as a robbery.  We must recognize the difference.  If we don’t, our response will be hopelessly inadequate.  We should not be providing suspected terrorists with Miranda warnings and defense lawyers.  Instead, the priority and focus must be on isolating and neutralizing the immediate threat and collecting intelligence to prevent another attack. 

In closing, let me say that I hope that Congress and the Administration support this legislation as part of a comprehensive solution for detaining, interrogating and prosecuting suspected enemy belligerents.  However, there is a lot more work that must be done.   I am continuing to work with Senator Graham, Senator Lieberman, and others to address other crucial aspects of detainee policy. 

As part of that effort, I believe we must establish a system for long-term detention of terrorists who are too dangerous to release, but who cannot be tried in a civilian court.  While the law of war authorizes detention until the end of hostilities–something the Supreme Court has recognized and which is reinforced in this bill–I believe that a review system for the long-term detention of detainees should be set out in law.   Additionally, both the United States District Court for the District of Columbia and the D.C. Circuit Court have urged Congress to provide uniform guidelines to apply in the habeas corpus cases that have been brought by detainees.   Currently, the outcomes in the Guantanamo detainee habeas cases are inconsistent because of different interpretations of novel questions of law the judges face in applying habeas to wartime prisoners for the first time in our history.  I will continue to work on a bipartisan basis to improve this process to obtain better, more uniform results.  I do not believe that we will have addressed all the necessary detainee policy challenges until we do so, and my efforts will not stop until we have addressed all the detainee issues in a comprehensive fashion. 

While other detainee policy challenges remain, I believe the handling of the Christmas Day bomber – including the law enforcement focus and the decision to read a Miranda warning after only 50 minutes of interrogation– demand that Congress and the Administration first address the issue which is most crucial to our national security.  For that reason, we must have a clear policy, legal foundation, and mechanism for the detention, interrogation and trial of enemy belligerents who are suspected of engaging in hostilities against the United States.   I hope my colleagues will join me in supporting this important legislation.

ARM10090 S.L.C.

111TH CONGRESS

2D SESSION S. ll

To 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

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Mr. MCCAIN introduced the following bill; which was read twice and referred

to the Committee on llllllllll

A BILL

To 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.

1 Be it enacted by the Senate and House of Representa2

tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Enemy Belligerent In5

terrogation, Detention, and Prosecution Act of 2010’’.

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1 SEC. 2. PLACEMENT OF SUSPECTED UNPRIVILEGED ENEMY

2 BELLIGERENTS IN MILITARY CUSTODY.

3 (a) MILITARY CUSTODY REQUIREMENT.—Whenever

4 within the United States, its territories, and possessions,

5 or outside the territorial limits of the United States, an

6 individual is captured or otherwise comes into the custody

7 or under the effective control of the United States who

8 is suspected of engaging in hostilities against the United

9 States or its coalition partners through an act of ter10

rorism, or by other means in violation of the laws of war,

11 or of purposely and materially supporting such hostilities,

12 and who may be an unprivileged enemy belligerent, the

13 individual shall be placed in military custody for purposes

14 of initial interrogation and determination of status in ac15

cordance with the provisions of this Act.

16 (b) REASONABLE DELAY FOR INTELLIGENCE AC17

TIVITIES.—An individual who may be an unprivileged

18 enemy belligerent and who is initially captured or other19

wise comes into the custody or under the effective control

20 of the United States by an intelligence agency of the

21 United States may be held, interrogated, or transported

22 by the intelligence agency and placed into military custody

23 for purposes of this Act if retained by the United States

24 within a reasonable time after the capture or coming into

25 the custody or effective control by the intelligence agency,

26 giving due consideration to operational needs and require-

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1 ments to avoid compromise or disclosure of an intelligence

2 mission or intelligence sources or methods.

3 SEC. 3. INTERROGATION AND DETERMINATION OF STATUS

4 OF SUSPECTED UNPRIVILEGED ENEMY BEL5

LIGERENTS.

6 (a) ESTABLISHMENT OF INTERROGATION GROUPS.—

7 (1) ESTABLISHMENT AUTHORIZED.—The Presi8

dent is authorized to establish an interagency team

9 for purposes as follows:

10 (A) To interrogate under subsection (b) in11

dividuals placed in military custody under sec12

tion 2.

13 (B) To make under subsection (c)(1) a

14 preliminary determination of the status of indi15

viduals described in section 2.

16 (2) COMPOSITION.—Each interagency team

17 under this subsection shall be composed of such per18

sonnel of the Executive Branch having expertise in

19 matters relating to national security, terrorism, in20

telligence, interrogation, or law enforcement as the

21 President considers appropriate. The members of

22 any particular interagency team may vary depending

23 on the skills most relevant to a particular case.

24 (3) DESIGNATIONS.—

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1 (A) HIGH-VALUE DETAINEE.—An indi2

vidual placed in military custody under section

3 2 shall, while subject to interrogation and de4

termination of status under this section, be re5

ferred to as a ‘‘high-value detainee’’ if the indi6

vidual meets the criteria for treatment as such

7 established in the regulations required by sub8

section (d).

9 (B) HIGH-VALUE DETAINEE INTERROGA10

TION GROUP.—An interagency team established

11 under this subsection shall be known as a

12 ‘‘high-value detainee interrogation group’’.

13 (b) INTERROGATIONS.—

14 (1) INTERROGATIONS TO BE CONDUCTED BY

15 HIGH-VALUE DETAINEE INTERROGATION GROUP.—A

16 high-value detainee interrogation group established

17 under this section shall conduct the interrogations of

18 each high-value detainee.

19 (2) UTILIZATION OF OTHER PERSONNEL.—A

20 high-value detainee interrogation group may utilize

21 military and intelligence personnel, and Federal,

22 State, and local law enforcement personnel, in con23

ducting interrogations of a high-value detainee. The

24 utilization of such personnel for the interrogation of

25 a detainee shall not alter the responsibility of the in-

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1 terrogation group for the coordination within the

2 Executive Branch of the interrogation of the de3

tainee or the determination of status and disposition

4 of the detainee under this Act.

5 (3) INAPPLICABILITY OF CERTAIN STATEMENT

6 AND RIGHTS.—A individual who is suspected of

7 being an unprivileged enemy belligerent shall not,

8 during interrogation under this subsection, be pro9

vided the statement required by Miranda v. Arizona

10 (384 U.S. 436 (1966)) or otherwise be informed of

11 any rights that the individual may or may not have

12 to counsel or to remain silent consistent with Mi13

randa v. Arizona.

14 (c) DETERMINATIONS OF STATUS.—

15 (1) PRELIMINARY DETERMINATION BY HIGH16

VALUE DETAINEE INTERROGATION GROUP.—The

17 high-value detainee interrogation group responsible

18 for interrogating a high-value detainee under sub19

section (b) shall make a preliminary determination

20 whether or not the detainee is an unprivileged enemy

21 belligerent. The interrogation group shall make such

22 determination based on the result of its interroga23

tion of the individual and on all intelligence informa24

tion available to the interrogation group. The inter25

rogation group shall, after consultation with the Di-

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1 rector of National Intelligence, the Director of the

2 Federal Bureau of Investigation, and the Director of

3 the Central Intelligence Agency, submit such deter4

mination to the Secretary of Defense and the Attor5

ney General.

6 (2) FINAL DETERMINATION.—As soon as pos7

sible after receipt of a preliminary determination of

8 status with respect to a high-value detainee under

9 paragraph (1), the Secretary of Defense and the At10

torney General shall jointly submit to the President

11 and to the appropriate committees of Congress a

12 final determination whether or not the detainee is an

13 unprivileged enemy belligerent for purposes of this

14 Act. In the event of a disagreement between the Sec15

retary of Defense and the Attorney General, the

16 President shall make the final determination.

17 (3) DEADLINE FOR DETERMINATIONS.—All ac18

tions required regarding a high-value detainee under

19 this subsection shall, to the extent practicable, be

20 completed not later than 48 hours after the detainee

21 is placed in military custody under section 2.

22 (d) REGULATIONS.—

23 (1) IN GENERAL.—The operations and activities

24 of high-value detainee interrogation groups under

25 this section shall be governed by such regulations

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1 and guidance as the President shall establish for

2 purposes of implementing this section. The regula3

tions shall specify the officer or officers of the Exec4

utive Branch responsible for determining whether an

5 individual placed in military custody under section 2

6 meets the criteria for treatment as a high-value de7

tainee for purposes of interrogation and determina8

tion of status by a high-value interrogation group

9 under this section.

10 (2) CRITERIA FOR DESIGNATION OF INDIVID11

UALS AS HIGH-VALUE DETAINEES.—The regulations

12 required by this subsection shall include criteria for

13 designating an individual as a high-value detainee

14 based on the following:

15 (A) The potential threat the individual

16 poses for an attack on civilians or civilian facili17

ties within the United States or upon United

18 States citizens or United States civilian facili19

ties abroad at the time of capture or when com20

ing under the custody or control of the United

21 States.

22 (B) The potential threat the individual

23 poses to United States military personnel or

24 United States military facilities at the time of

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1 capture or when coming under the custody or

2 control of the United States.

3 (C) The potential intelligence value of the

4 individual.

5 (D) Membership in al Qaeda or in a ter6

rorist group affiliated with al Qaeda.

7 (E) Such other matters as the President

8 considers appropriate.

9 (3) PARAMOUNT PURPOSE OF INTERROGA10

TIONS.—The regulations required by this subsection

11 shall provide that the paramount purpose of the in12

terrogation of high-value detainees under this Act

13 shall be the protection of United States civilians and

14 United States civilian facilities through thorough

15 and professional interrogation for intelligence pur16

poses.

17 (4) SUBMITTAL TO CONGRESS.—The President

18 shall submit the regulations and guidance required

19 by this subsection to the appropriate committees of

20 Congress not later than 60 days after the date of

21 the enactment of this Act.

22 SEC. 4. LIMITATION ON PROSECUTION OF ALIEN

23 UNPRIVILEGED ENEMY BELLIGERENTS.

24 (a) LIMITATION.—No funds appropriated or other25

wise made available to the Department of Justice may be

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1 used to prosecute in an Article III court in the United

2 States, or in any territory or possession of the United

3 States, any alien who has been determined to be an

4 unprivileged enemy belligerent under section 3(c)(2).

5 (b) APPLICABILITY PENDING FINAL DETERMINA6

TION OF STATUS.—While a final determination on the sta7

tus of an alien high-value detainee is pending under sec8

tion 3(c)(2), the alien shall be treated as an unprivileged

9 enemy belligerent for purposes of subsection (a).

10 SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED

11 ENEMY BELLIGERENTS.

12 An individual, including a citizen of the United

13 States, determined to be an unprivileged enemy belligerent

14 under section 3(c)(2) in a manner which satisfies Article

15 5 of the Geneva Convention Relative to the Treatment of

16 Prisoners of War may be detained without criminal

17 charges and without trial for the duration of hostilities

18 against the United States or its coalition partners in which

19 the individual has engaged, or which the individual has

20 purposely and materially supported, consistent with the

21 law of war and any authorization for the use of military

22 force provided by Congress pertaining to such hostilities.

23 SEC. 6. DEFINITIONS.

24 In this Act:

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1 (1) ACT OF TERRORISM.—The term ‘‘act of ter2

rorism’’ means an act of terrorism as that term is

3 defined in section 101(16) of the Homeland Security

4 Act of 2002 (6 U.S.C. 101(16)).

5 (2) ALIEN.—The term ‘‘alien’’ means an indi6

vidual who is not a citizen of the United States.

7 (3) APPROPRIATE COMMITTEES OF CON8

GRESS.—The term ‘‘appropriate committees of Con9

gress’’ means—

10 (A) the Committee on Armed Services, the

11 Committee on Homeland Security and Govern12

mental Affairs, the Committee on the Judiciary,

13 and the Select Committee on Intelligence of the

14 Senate; and

15 (B) the Committee on Armed Services, the

16 Committee on Homeland Security, the Com17

mittee on the Judiciary, and the Permanent Se18

lect Committee on Intelligence of the House of

19 Representatives.

20 (4) ARTICLE III COURT.—The term ‘‘Article III

21 court’’ means a court of the United States estab22

lished under Article III of the Constitution of the

23 United States.

24 (5) COALITION PARTNER.—The term ‘‘coalition

25 partner’’, with respect to hostilities engaged in by

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1 the United States, means any State or armed force

2 directly engaged along with the United States in

3 such hostilities or providing direct operational sup4

port to the United States in connection with such

5 hostilities.

6 (6) GENEVA CONVENTION RELATIVE TO THE

7 TREATMENT OF PRISONERS OF WAR.—The term

8 ‘‘Geneva Convention Relative to the Treatment of

9 Prisoners of War’’ means the Geneva Convention

10 Relative to the Treatment of Prisoners of War, done

11 at Geneva August 12, 1949 (6 UST 3316).

12 (7) HOSTILITIES.—The term ‘‘hostilities’’

13 means any conflict subject to the laws of war, and

14 includes a deliberate attack upon civilians and civil15

ian targets protected by the laws of war.

16 (8) PRIVILEGED BELLIGERENT.—The term

17 ‘‘privileged belligerent’’ means an individual belong18

ing to one of the eight categories enumerated in Ar19

ticle 4 of the Geneva Convention Relative to the

20 Treatment of Prisoners of War.

21 (9) UNPRIVILEGED ENEMY BELLIGERENT.—

22 The term ‘‘unprivileged enemy belligerent’’ means an

23 individual (other than a privileged belligerent) who—

24 (A) has engaged in hostilities against the

25 United States or its coalition partners;

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1 (B) has purposely and materially sup2

ported hostilities against the United States or

3 its coalition partners; or

4 (C) was a part of al Qaeda at the time of

5 capture.

6 SEC. 7. EFFECTIVE DATE.

7 This Act shall take effect on the date of the enact8

ment of this Act, and shall apply with respect to individ9

uals who are captured or otherwise come into the custody

10 or under the effective control of the United States on or

11 after that date.

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