NDAA 1021 1022

Subtitle D—Counterterrorism
SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF
THE UNITED STATES TO DETAIN COVERED PERSONS
PURSUANT TO THE AUTHORIZATION FOR USE OF MILI-
TARY FORCE.
(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;
50 U.S.C. 1541 note) includes the authority for the Armed Forces
of the United States to detain covered persons (as defined in sub-
section (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) AUTHORITIES.—Nothing in this section shall be construed
to affect existing law or authorities relating to the detention of
United States citizens, lawful resident aliens of the United States,
or any other persons who are captured or arrested in the United
States.
(f) 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 organiza-
tions, entities, and individuals considered to be ‘‘covered persons’’
for purposes of subsection (b)(2).

SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.
(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 1021 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 1021(c), except that no
transfer otherwise described in paragraph (4) of that section
shall be made unless consistent with the requirements of sec-
tion 1028.
(4) WAIVER FOR NATIONAL SECURITY.—The President may
waive the requirement of paragraph (1) if the President 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 sec-
tion 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 mili-
tary custody under subsection (a)(1) does not require the
interruption of ongoing surveillance or intelligence gath-
ering 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 which is ongoing
at the time the determination is made and does not require
the interruption of any such ongoing interrogation.