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Case 1:05-cv-01429-UNA Document 33-2 Filed 01/04/2006 Page 1 of 7

H. R. 2863

One Hundred Ninth Congress

of the

United States of America

AT THE FIRST SESSION

Begun and held at the City of Washington on Tuesday,

the fourth day of January, two thousand and five

An Act

Making appropriations for the Department of Defense for the fiscal year ending

September 30, 2006, and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

DIVISION A

DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2006

That the following sums are appropriated, out of any money in
the Treasury not otherwise appropriated, for the fiscal year ending
September 30, 2006, for military functions administered by the
Department of Defense and for other purposes, namely:

TITLE I

MILITARY PERSONNEL

MILITARY PERSONNEL, ARMY

For pay, allowances, individual clothing, subsistence, interest
on deposits, gratuities, permanent change of station travel
(including all expenses thereof for organizational movements), and
expenses of temporary duty travel between permanent duty sta-
tions, for members of the Army on active duty, (except members
of reserve components provided for elsewhere), cadets, and aviation
cadets; for members of the Reserve Officers’ Training Corps; and
for payments pursuant to section 156 of Public Law 97–377, as
amended (42 U.S.C. 402 note), and to the Department of Defense
Military Retirement Fund, $28,191,287,000.

MILITARY PERSONNEL, NAVY

For pay, allowances, individual clothing, subsistence, interest
on deposits, gratuities, permanent change of station travel
(including all expenses thereof for organizational movements), and
expenses of temporary duty travel between permanent duty sta-
tions, for members of the Navy on active duty (except members
of the Reserve provided for elsewhere), midshipmen, and aviation
cadets; for members of the Reserve Officers’ Training Corps; and
for payments pursuant to section 156 of Public Law 97–377, as
amended (42 U.S.C. 402 note), and to the Department of Defense
Military Retirement Fund, $22,788,101,000.

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H. R. 2863—60

(J) An assessment, in a classified annex if necessary,
of United States military requirements, including planned
force rotations, through the end of calendar year 2006.
SEC. 9011. Supervision and administration costs associated with
a construction project funded with appropriations available for oper-
ation and maintenance, and executed in direct support of the Global
War on Terrorism only in Iraq and Afghanistan, may be obligated
at the time a construction contract is awarded: Provided, That
for the purpose of this section, supervision and administration
costs include all in-house Government costs.

SEC. 9012. Amounts appropriated or otherwise made available
in this title are designated as making appropriations for contingency
operations related to the global war on terrorism pursuant to section
402 of H. Con. Res. 95 (109th Congress), the concurrent resolution
on the budget for fiscal year 2006.

TITLE X—MATTERS RELATING TO

DETAINEES

SEC. 1001. SHORT TITLE.

This title may be cited as the ‘‘Detainee Treatment Act of

2005’’.
SEC. 1002. UNIFORM STANDARDS FOR THE INTERROGATION OF PER-
SONS UNDER THE DETENTION OF THE DEPARTMENT OF
DEFENSE.

(a) IN GENERAL.—No person in the custody or under the effec-
tive control of the Department of Defense or under detention in
a Department of Defense facility shall be subject to any treatment
or technique of interrogation not authorized by and listed in the
United States Army Field Manual on Intelligence Interrogation.
(b) APPLICABILITY.—Subsection (a) shall not apply with respect
to any person in the custody or under the effective control of
the Department of Defense pursuant to a criminal law or immigra-
tion law of the United States.

(c) CONSTRUCTION.—Nothing in this section shall be construed
to affect the rights under the United States Constitution of any
person in the custody or under the physical jurisdiction of the
United States.
SEC. 1003. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREAT-
MENT OR PUNISHMENT OF PERSONS UNDER CUSTODY
OR CONTROL OF THE UNITED STATES GOVERNMENT.

(a) IN GENERAL.—No individual in the custody or under the
physical control of the United States Government, regardless of
nationality or physical location, shall be subject to cruel, inhuman,
or degrading treatment or punishment.

(b) CONSTRUCTION.—Nothing in this section shall be construed
to impose any geographical limitation on the applicability of the
prohibition against cruel, inhuman, or degrading treatment or
punishment under this section.

(c) LIMITATION ON SUPERSEDURE.—The provisions of this section
shall not be superseded, except by a provision of law enacted
after the date of the enactment of this Act which specifically repeals,
modifies, or supersedes the provisions of this section.

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H. R. 2863—61

(d) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISH-
MENT DEFINED.—In this section, the term ‘‘cruel, inhuman, or
degrading treatment or punishment’’ means the cruel, unusual,
and inhumane treatment or punishment prohibited by the Fifth,
Eighth, and Fourteenth Amendments to the Constitution of the
United States, as defined in the United States Reservations, Dec-
larations and Understandings to the United Nations Convention
Against Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment done at New York, December 10, 1984.
SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PER-

SONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.

(a) PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL.—
In any civil action or criminal prosecution against an officer,
employee, member of the Armed Forces, or other agent of the
United States Government who is a United States person, arising
out of the officer, employee, member of the Armed Forces, or other
agent’s engaging in specific operational practices, that involve deten-
tion and interrogation of aliens who the President or his designees
have determined are believed to be engaged in or associated with
international terrorist activity that poses a serious, continuing
threat to the United States, its interests, or its allies, and that
were officially authorized and determined to be lawful at the time
that they were conducted, it shall be a defense that such officer,
employee, member of the Armed Forces, or other agent did not
know that the practices were unlawful and a person of ordinary
sense and understanding would not know the practices were unlaw-
ful. Good faith reliance on advice of counsel should be an important
factor, among others, to consider in assessing whether a person
of ordinary sense and understanding would have known the prac-
tices to be unlawful. Nothing in this section shall be construed
to limit or extinguish any defense or protection otherwise available
to any person or entity from suit, civil or criminal liability, or
damages, or to provide immunity from prosecution for any criminal
offense by the proper authorities.

(b) COUNSEL.—The United States Government may provide
or employ counsel, and pay counsel fees, court costs, bail, and
other expenses incident to the representation of an officer, employee,
member of the Armed Forces, or other agent described in subsection
(a), with respect to any civil action or criminal prosecution arising
out of practices described in that subsection, under the same condi-
tions, and to the same extent, to which such services and payments
are authorized under section 1037 of title 10, United States Code.
SEC. 1005. PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE

THE UNITED STATES.

(a) SUBMITTAL OF PROCEDURES FOR STATUS REVIEW OF
DETAINEES AT GUANTANAMO BAY, CUBA, AND IN AFGHANISTAN AND
IRAQ.—

(1) IN GENERAL.—Not later than 180 days after the date
of the enactment of this Act, the Secretary of Defense shall
submit to the Committee on Armed Services and the Committee
on the Judiciary of the Senate and the Committee on Armed
Services and the Committee on the Judiciary of the House
of Representatives a report setting forth—

(A) the procedures of the Combatant Status Review
Tribunals and the Administrative Review Boards estab-
lished by direction of the Secretary of Defense that are

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H. R. 2863—62

in operation at Guantanamo Bay, Cuba, for determining
the status of the detainees held at Guantanamo Bay or
to provide an annual review to determine the need to
continue to detain an alien who is a detainee; and

(B) the procedures in operation in Afghanistan and
Iraq for a determination of the status of aliens detained
in the custody or under the physical control of the Depart-
ment of Defense in those countries.
(2) DESIGNATED CIVILIAN OFFICIAL.—The procedures sub-
mitted to Congress pursuant to paragraph (1)(A) shall ensure
that the official of the Department of Defense who is designated
by the President or Secretary of Defense to be the final review
authority within the Department of Defense with respect to
decisions of any such tribunal or board (referred to as the
‘‘Designated Civilian Official’’) shall be a civilian officer of the
Department of Defense holding an office to which appointments
are required by law to be made by the President, by and
with the advice and consent of the Senate.

(3) CONSIDERATION OF NEW EVIDENCE.—The procedures
submitted under paragraph (1)(A) shall provide for periodic
review of any new evidence that may become available relating
to the enemy combatant status of a detainee.
(b) CONSIDERATION OF STATEMENTS DERIVED WITH COERCION.—
(1) ASSESSMENT.—The procedures submitted to Congress
pursuant to subsection (a)(1)(A) shall ensure that a Combatant
Status Review Tribunal or Administrative Review Board, or
any similar or successor administrative tribunal or board, in
making a determination of status or disposition of any detainee
under such procedures, shall, to the extent practicable, assess—
(A) whether any statement derived from or relating
to such detainee was obtained as a result of coercion;
and

(B) the probative value (if any) of any such statement.
(2) APPLICABILITY.—Paragraph (1) applies with respect to
any proceeding beginning on or after the date of the enactment
of this Act.
(c) REPORT ON MODIFICATION OF PROCEDURES.—The Secretary
of Defense shall submit to the committees specified in subsection
(a)(1) a report on any modification of the procedures submitted
under subsection (a). Any such report shall be submitted not later
than 60 days before the date on which such modification goes
into effect.

(d) ANNUAL REPORT.—

(1) REPORT REQUIRED.—The Secretary of Defense shall
submit to Congress an annual report on the annual review
process for aliens in the custody of the Department of Defense
outside the United States. Each such report shall be submitted
in unclassified form, with a classified annex, if necessary. The
report shall be submitted not later than December 31 each
year.

(2) ELEMENTS OF REPORT.—Each such report shall include
the following with respect to the year covered by the report:
(A) The number of detainees whose status was

reviewed.

(B) The procedures used at each location.

(e) JUDICIAL REVIEW OF DETENTION OF ENEMY COMBATANTS.—

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H. R. 2863—63

(1) IN GENERAL.—Section 2241 of title 28, United States

Code, is amended by adding at the end the following:
‘‘(e) Except as provided in section 1005 of the Detainee Treat-
ment Act of 2005, no court, justice, or judge shall have jurisdiction
to hear or consider—

‘‘(1) an application for a writ of habeas corpus filed by
or on behalf of an alien detained by the Department of Defense
at Guantanamo Bay, Cuba; or

‘‘(2) any other action against the United States or its agents
relating to any aspect of the detention by the Department
of Defense of an alien at Guantanamo Bay, Cuba, who—

‘‘(A) is currently in military custody; or
‘‘(B) has been determined by the United States Court
of Appeals for the District of Columbia Circuit in accord-
ance with the procedures set forth in section 1005(e) of
the Detainee Treatment Act of 2005 to have been properly
detained as an enemy combatant.’’.
(2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW

TRIBUNALS OF PROPRIETY OF DETENTION.—

(A) IN GENERAL.—Subject to subparagraphs (B), (C),
and (D), the United States Court of Appeals for the District
of Columbia Circuit shall have exclusive jurisdiction to
determine the validity of any final decision of a Combatant
Status Review Tribunal that an alien is properly detained
as an enemy combatant.

(B) LIMITATION ON CLAIMS.—The jurisdiction of the
United States Court of Appeals for the District of Columbia
Circuit under this paragraph shall be limited to claims
brought by or on behalf of an alien—

(i) who is, at the time a request for review by
such court is filed, detained by the Department of
Defense at Guantanamo Bay, Cuba; and

(ii) for whom a Combatant Status Review Tribunal
has been conducted, pursuant to applicable procedures
specified by the Secretary of Defense.
(C) SCOPE OF REVIEW.—The jurisdiction of the United
States Court of Appeals for the District of Columbia Circuit
on any claims with respect to an alien under this paragraph
shall be limited to the consideration of—

(i) whether the status determination of the
Combatant Status Review Tribunal with regard to such
alien was consistent with the standards and procedures
specified by the Secretary of Defense for Combatant
Status Review Tribunals (including the requirement
that the conclusion of the Tribunal be supported by
a preponderance of the evidence and allowing a rebut-
table presumption in favor of the Government’s evi-
dence); and

(ii) to the extent the Constitution and laws of
the United States are applicable, whether the use of
such standards and procedures to make the determina-
tion is consistent with the Constitution and laws of
the United States.
(D) TERMINATION ON RELEASE FROM CUSTODY.—The
jurisdiction of the United States Court of Appeals for the
District of Columbia Circuit with respect to the claims
of an alien under this paragraph shall cease upon the

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H. R. 2863—64

SIONS.—

release of such alien from the custody of the Department
of Defense.
(3) REVIEW OF FINAL DECISIONS OF MILITARY COMMIS-

(A) IN GENERAL.—Subject to subparagraphs (B), (C),
and (D), the United States Court of Appeals for the District
of Columbia Circuit shall have exclusive jurisdiction to
determine the validity of any final decision rendered pursu-
ant to Military Commission Order No. 1, dated August
31, 2005 (or any successor military order).

(B) GRANT OF REVIEW.—Review under this paragraph—
(i) with respect to a capital case or a case in
which the alien was sentenced to a term of imprison-
ment of 10 years or more, shall be as of right; or
(ii) with respect to any other case, shall be at
the discretion of the United States Court of Appeals
for the District of Columbia Circuit.
(C) LIMITATION ON APPEALS.—The jurisdiction of the
United States Court of Appeals for the District of Columbia
Circuit under this paragraph shall be limited to an appeal
brought by or on behalf of an alien—

(i) who was, at the time of the proceedings pursu-
ant to the military order referred to in subparagraph
(A), detained by the Department of Defense at Guanta-
namo Bay, Cuba; and

(ii) for whom a final decision has been rendered

pursuant to such military order.
(D) SCOPE OF REVIEW.—The jurisdiction of the United
States Court of Appeals for the District of Columbia Circuit
on an appeal of a final decision with respect to an alien
under this paragraph shall be limited to the consideration
of—

(i) whether the final decision was consistent with
the standards and procedures specified in the military
order referred to in subparagraph (A); and

(ii) to the extent the Constitution and laws of
the United States are applicable, whether the use of
such standards and procedures to reach the final deci-
sion is consistent with the Constitution and laws of
the United States.

(4) RESPONDENT.—The Secretary of Defense shall be the
named respondent in any appeal to the United States Court
of Appeals for the District of Columbia Circuit under this
subsection.
(f) CONSTRUCTION.—Nothing in this section shall be construed
to confer any constitutional right on an alien detained as an enemy
combatant outside the United States.

(g) UNITED STATES DEFINED.—For purposes of this section,
the term ‘‘United States’’, when used in a geographic sense, is
as defined in section 101(a)(38) of the Immigration and Nationality
Act and, in particular, does not include the United States Naval
Station, Guantanamo Bay, Cuba.

(h) EFFECTIVE DATE.—

of the enactment of this Act.

(1) IN GENERAL.—This section shall take effect on the date

(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY
COMMISSION DECISIONS.—Paragraphs (2) and (3) of subsection

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H. R. 2863—65

(e) shall apply with respect to any claim whose review is
governed by one of such paragraphs and that is pending on
or after the date of the enactment of this Act.

SEC. 1006. TRAINING OF IRAQI FORCES REGARDING TREATMENT OF

DETAINEES.

(a) REQUIRED POLICIES.—

(1) IN GENERAL.—The Secretary of Defense shall ensure
that policies are prescribed regarding procedures for military
and civilian personnel of the Department of Defense and con-
tractor personnel of the Department of Defense in Iraq that
are intended to ensure that members of the Armed Forces,
and all persons acting on behalf of the Armed Forces or within
facilities of the Armed Forces, ensure that all personnel of
Iraqi military forces who are trained by Department of Defense
personnel and contractor personnel of the Department of
Defense receive training regarding the international obligations
and laws applicable to the humane detention of detainees,
including protections afforded under the Geneva Conventions
and the Convention Against Torture.

(2) ACKNOWLEDGMENT OF TRAINING.—The Secretary shall
ensure that, for all personnel of the Iraqi Security Forces who
are provided training referred to in paragraph (1), there is
documented acknowledgment of such training having been pro-
vided.

(3) DEADLINE FOR POLICIES TO BE PRESCRIBED.—The policies
required by paragraph (1) shall be prescribed not later than
180 days after the date of the enactment of this Act.
(b) ARMY FIELD MANUAL.—

(1) TRANSLATION.—The Secretary of Defense shall provide
for the United States Army Field Manual on Intelligence
Interrogation to be translated into arabic and any other lan-
guage the Secretary determines appropriate for use by members
of the Iraqi military forces.

(2) DISTRIBUTION.—The Secretary of Defense shall provide
for such manual, as translated, to be provided to each unit
of the Iraqi military forces trained by Department of Defense
personnel or contractor personnel of the Department of Defense.
(c) TRANSMITTAL OF REGULATIONS.—Not less than 30 days after
the date on which regulations, policies, and orders are first pre-
scribed under subsection (a), the Secretary of Defense shall submit
to the Committee on Armed Services of the Senate and the Com-
mittee on Armed Services of the House of Representatives copies
of such regulations, policies, or orders, together with a report on
steps taken to the date of the report to implement this section.
(d) ANNUAL REPORT.—Not less than one year after the date
of the enactment of this Act, and annually thereafter, the Secretary
of Defense shall submit to the Committee on Armed Services of
the Senate and the Committee on Armed Services of the House
of Representatives a report on the implementation of this section.
This division may be cited as the ‘‘Department of Defense

Appropriations Act, 2006’’.