S3801: US Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010

Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 (Introduced in Senate)

S 3081 IS

111th CONGRESS

2d Session

S. 3081

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

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 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.

• 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.

• (3) DESIGNATIONS-

• (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'.

• (b) Interrogations-

• (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.

• (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.

• (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.

• 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)).

• (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.

http://thomas.loc.gov/cgi-bin/query/z?c111:s3081:

Comments

[Dan Scott]

Are You Scheduled For Government Interrogation If Senate bill 3081 Is Passed?

On March 4, 2010, Sen. John McCain introduced S. 3081, The “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.”

Under S.3081, an “individual” need only be Suspected by Government of “suspicious activity” or “supporting hostilities” to be dragged off and held indefinitely in Military Custody. Government will have the power to detain and interrogate any individual without probable cause. Government need only allege an individual in detention, is an Unprivileged Enemy Belligerent suspected of; having engaged in hostilities against the United States or its coalition partners; or has purposefully and materially supported hostilities against the United States or its coalition partners. The obvious question: how does one prove to Government they did not purposely do something? Definition for Unprivileged Enemy Belligerent: (Anyone Subject to a Military Commission)

At least under the Patriot Act, law enforcement generally needed probable cause to detain a person indefinitely. Passage of S.3081 will use mere suspicion to curtail an individual’s Constitutional Protections against unlawful arrest, detention and interrogation without benefit of legal counsel and trial. According to S.3081 Government is not required to provide detained individuals U.S. Miranda Warnings or even an attorney.

Similar to fascist laws in other countries, S.3081 if passed will frighten Americans from speaking out. S.3081 is so broadly written, it appears any “individual” who writes on the Internet or verbally express an opinion against U.S. Government or its coalition partners might potentially be detained on the basis he or she is an “unprivileged enemy belligerent”, “supporting hostilities against U.S. Government.”

See McCain Senate bill S.3081:

http://assets.theatlantic.com/static/mt/assets/politics/ARM10090.pdf

FYI: below is enclosed a copy of “Hitler’s Discriminatory Decrees signed February 28, 1933.” Although the Nazi Decrees are written differently than S.3081 they bring America to the same place trashing free speech and personal liberty. Note how the Nazi Government similar to U.S. S.3081 has in Section (1) and (4) suspended personal liberty and shutdown Free Speech, to intimidate Citizens speaking out against Government:

See Section 1
“Sections 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich are suspended until further notice. Thus, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for house-searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.”

Similar to McCain’s S. 3081, but using different wording the Nazi Government in Section (4) see below, suspended Constitutional rights ordering the arrest of Citizens for any Act that might incite or provoke disobedience against state authorities. McCain’s S. 3081 instead mentions detaining and prosecuting Individuals for “supporting hostilities” against U.S. Government. S.3081 is so broadly written anti-war protesters might be arrested and detained just for attending demonstrations.

See Section 4
Whoever provokes, or appeals for or incites to the disobedience of the orders given out by the supreme state authorities or the authorities subject to then for the execution of this decree, or the orders given by the Reich Government according to Section 2, is punishable—insofar as the deed, is not covered by the decree with more severe punishment and with imprisonment of not less that one month, or with a fine from 150 up to 15,000 Reichsmarks.

Some members in the Obama Government appear bent on curtailing Citizens’ rights especially Free Speech and Opinions. In the run up to Sen. McCain’s introduced S. 3081, it was reported Top Obama Czar Cass Sunstein Proposed Infiltrating all 'Conspiracy Theorists' in a paper prepared in 2008—that apparently expressed: Government should infiltrate and spy on Americans, their groups and organizations to obstruct Free Speech, disrupt the exchange of ideas and disseminate false information to neutralize Americans that might question government. See news story: http://www.wnd.com/?pageId=121884

Also in 2008 perhaps coincidence: "The Violent Radicalization and Homegrown Terrorism Prevention Act", was introduced by Rep. Jane Harman. The bill appeared to mirror a number of Czar Cass Sunstein’s spying proposals on lawful Citizens and interrupting groups without evidence of wrongdoing. Harman’s bill called for investigating and tracking Americans and groups that might be prone to supporting or committing violent acts of domestic terrorism. Harman’s bill had the potential of driving lawful political and other activists underground. Perhaps creating the domestic terrorists Bush II said Americans needed to be protected from. Rep. Harman's "Violent Radicalization and Homegrown Terrorism Prevention Act" when closely examined, defined "homegrown terrorism" as "any planned act" that might use force to coerce U.S. Government or its people to promote or accomplish a "political or social objective." No actual force need occur. Government would only need to allege an individual or group thought about it. Rep. Harman’s bill was often called the “Thought Crime Bill.”

McCain’s S.3081 like Harman’s bill, mentions “non-violent acts" supporting terrorism in the U.S. and or emanating from America against a foreign government or "U.S. ally." "Non-violent terrorist acts" are covered in the Patriot Act to prosecute Persons that support “coercion to influence a government or intimidation to affect a civilian population.” However U.S. activists and individuals under S.3081 would be much more vulnerable to prosecution, being (charged with suspicion) of “intentionally providing support to an Act of Terrorism”, for example American activists cannot control what other activists might do illegally they network with domestically and overseas. Under the Patriot Act, law enforcement generally needs probable cause to detain or prosecute someone. But under S.3081, law enforcement and the military can too easily use “hearsay” or informants to allege “suspicious activity” to detain an individual. Since 9/11 federal government established across the nation a large number of Fusion Centers. Fusion Centers were originally established to improve the sharing of anti-terrorism intelligence among different state, local and federal law enforcement agencies. (But since expanded to pursue all crimes and hazards); considering that, it is problematic under S.3081 that detained individuals not involved in terrorism or hostile activities, not given Miranda Warnings or allowed legal counsel will be prosecuted for ordinary crimes because of their alleged admissions while in military custody.

Fusion Centers now pursue for analysis not just criminal and terrorist information, but any information that can be derived from police, public records and private sector data about Americans. Fusion Centers increasingly involve components of the U.S. Military in addition to other government entities to spy on Citizens. “The centers heavily rely on local “informants” for information that is shared with Local, State, and Federal police agencies.); historically it is foreseeable under S.3081 erroneous informant information will be used under S.3081 to detain innocent Individuals. Other governments have used lying informants to imprison their political opposition. Recently the Department of Homeland Security began sharing more classified Military information with local Fusion Centers, perhaps a mistake, not all local police keep secrets.

Fusion Centers circumvent Fourth Amendment Constitutional protections that prohibit illegal search and seizure, by taking advantage of ambiguous lines of authority to manipulate differences in federal, state and local laws to maximize information collection. Increasingly (private security companies and their operatives) work so closely with local/federal law enforcement and Fusion Centers—providing and exchanging information about Americans, they appear to merge with police. That is what happened in Germany during the 1930’s when a private-Gestapo merged its operations with German Federal Police. Subsequently Germany in 1939 placed all German Police agencies including the Gestapo under the control of the "Reich Main Security Office” the equivalent of U.S. Homeland Security. Notably, McCain’s S.3081 mandates merging Federal, State and local police and subsequently the U.S. Military to detain and hold Individuals in the U.S., even without probable cause. Interestingly a Rand Report prepared for the Army, recently made public, appears to suggest that U.S. Government develop a Local, State and Federal U.S. "National Police Stabilization Force merging State law enforcement with the Feds. What would happen to State Rights and what laws and Jurisdiction would be used to charge state Citizens arrested by a National Police Stabilization Force? A National Police Force could potentially be sent by the President into any State with the approval of its governor, against the wishes of its Citizens? To clarify the Rand Corporation report visit:

http://www.wnd.com/index.php?fa=PAGE.view&pageId=122533

It should be expected under S.3081 that government would use an individual’s phone call and email information to allege without probable cause “suspicious or hostile activity.” It does not appear U.S. Government will slow down wiretapping Citizens' electronic communications. Just recently Pres. Obama's signed Executive Order EO 12425 that put INTERPOL above the United States Constitution. Obama’s Executive Order authorized INTERPOL to act within the United States without being subject to 4th Amendment Search and Seizure laws. It would appear INTERPOL may now tap American phones and emails without a warrant. And that U.S. Police can use INTERPOL to circumvent the Fourth Amendment to arrest Americans and or forfeit their property by bringing INTERPOL into a criminal or civil investigation. Government can too easily take an innocent person’s hastily written email, fax or phone call out of context to allege a crime or violation was committed to cause an arrest or Civil asset forfeiture.

DECREE OF THE REICH PRESIDENT FOR THE PROTECTION OF
THE PEOPLE AND STATE

Note: Based on translations by State Department, National Socialism, 1942 PP. 215-17, and Pollak, J.K., and Heneman, H.J., The Hitler Decrees, (1934), pp. 10-11.7

In virtue of Section 48 (2) of the German Constitution, the following is decreed as a defensive measure against Communist acts of Violence, endangering the state:

Section 1
Sections 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich are suspended until further notice. Thus, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for house-searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.

Section 2
If in a state the measures necessary for the restoration of public security and order are not taken, the Reich Government may temporarily take over the powers of the highest state authority.

Section 4
Whoever provokes, or appeals for or incites to the disobedience of the orders given out by the supreme state authorities or the authorities subject to then for the execution of this decree, or the orders given by the Reich Government according to Section 2, is punishable—insofar as the deed, is not covered by the decree with more severe punishment and with imprisonment of not less that one month, or with a fine from 150 up to 15,000 Reichsmarks.

Who ever endangers human life by violating Section 1, is to be punished by sentence to a penitentiary, under mitigating circumstances with imprisonment of not less than six months and, when violation causes the death of a person, with death, under mitigating circumstances with a penitentiary sentence of not less that two years. In addition the sentence my include confiscation of property.

Whoever provokes an inciter to or act contrary to public welfare is to be punished with a penitentiary sentence, under mitigating circumstances, with imprisonment of not less than three months.

Section 5
The crimes which under the Criminal Code are punishable with penitentiary for life are to be punished with death: i.e., in Sections 81 (high treason), 229 (poisoning), 306 (arson), 311 (explosion), 312 (floods), 315, paragraph 2 (damage to railroad properties, 324 (general poisoning).

Insofar as a more severe punishment has not been previously provided for, the following are punishable with death or with life imprisonment or with imprisonment not to exceed 15 years:

1. Anyone who undertakes to kill the Reich President or a member or a commissioner of the Reich Government or of a state government, or provokes to such a killing, or agrees to commit it, or accepts such an offer, or conspires with another for such a murder;

2. Anyone who under Section 115 (2) of the Criminal Code (serious rioting) or of Section 125 (2) of the Criminal Code (serious disturbance of the peace) commits the act with arms or cooperates consciously and intentionally with an armed person;

3. Anyone who commits a kidnapping under Section 239 of the Criminal with the intention of making use of the kidnapped person as a hostage in the political struggle.

Section 6
This decree enters in force on the day of its promulgation.

Reich President
Reich Chancellor
Reich Minister of the Interior
Reich Minister of Justice