The Bill

A BILL To require the closure of the detention facility at Guantanamo Bay, Cuba, to limit the use of certain interrogation techniques, to prohibit interrogation by contractors, to explicitly prohibit extraordinary rendition, to require notification of the International Committee of the Red Cross of detainees, to review the CIA detention and interrogation program, to amend the Foreign Intelligence Act of 1978 to require independent judicial review of telecom immunity, to restore habeas corpus for those detained, to amend the Immigration and Nationality Act to modify requirements for participation in the visa waiver program, and for other purposes. Sponsored by: Senator Dianne Feinstein from California 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 `Omnibus Intelligence Act of 2009'. SEC. 2. DEFINITIONS. ←In this Act: (1)INTELLIGENCE COMMUNITY- The term ‘intelligence community' has the meaning given that term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)). (2)FOREIGN INTELLIGENCE SURVEILLANCE COURT- 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)). (3)FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEWThe term `Foreign Intelligence Surveillance Court of Review’ means the court of review established under section 103(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(b)). (4)PROGRAM COUNTRY- The term `program country' means a country designated as a program country under section 217(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(1)). (5)SECRETARY- Except as otherwise provided, the term `Secretary' means the Secretary of Homeland Security. (6)VISA WAIVER PROGRAM- The term `visa waiver program' means the visa waiver program carried out under section

217 of the Immigration and Nationality Act (8 U.S.C. 1187). ← SEC. 3. CLOSURE OF DETENTION FACILITY AT GUANTANAMO BAY. (a) Requirement To Close- Not later than 1 year after the date of the enactment of this Act, the President shall close the detention facility at Guantanamo Bay, Cuba operated by the Secretary of Defense and remove all detainees from such facility. ←(b) Detainees- Prior to the date that the President closes the detention facility at Guantanamo Bay, Cuba, as required by subsection (a), each individual detained at such facility shall be treated exclusively through one of the following: ← (1)The individual shall be charged with a violation of United States or international law and transferred to a military or Federal civilian detention facility in the United States for further legal proceedings, provided that such a Federal civilian facility or military facility has received the highest security rating available for such a facility. (2)The individual shall be transferred to an international tribunal operating under the authority of the United Nations that has jurisdiction to hold a trial of such individual. (3)The individual shall be transferred to the custody of the government of the individual's country of citizenship or a different country, provided that such transfer is consistent with— (A) the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984; (B) all relevant United States law; and (C) any other international obligation of the United States. (4)If the Secretary of Defense and Director of National Intelligence determine, jointly, that the individual poses no security threat to the United States and actions cannot be taken under paragraph (1) or (3), the individual shall be released from further detention. (5)The individual shall be held in accordance with the law of armed conflict. ←(c) Reporting Requirements← (1)REQUIREMENT FOR REPORT- Not later than 90 days after the date of the enactment of this Act, the President shall submit

to Congress a report that describes the President's plan to implement this section. (2) REQUIREMENT TO UPDATE- The President shall keep Congress fully and currently informed of the steps taken to implement this section. (d) Construction(1) IMMIGRATION STATUS- The transfer of an individual under subsection (b) shall not be considered an entry into the United States for purposes of immigration status. (2) NO ADDITIONAL DETENTION AUTHORITY- Nothing in this section may be construed as altering or adding to existing authorities for, or restrictions on, the detention, treatment, or transfer of individuals in United States custody. SEC. 4. LIMITATION ON INTERROGATION TECHNIQUES. (a) No individual in the custody or under the effective control of personnel of an element of the intelligence community or a contractor or subcontractor of an element of the intelligence community, regardless of nationality or physical location of such individual or personnel, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations. SEC. 5. PROHIBITION ON INTERROGATIONS BY CONTRACTORS AND ON EXTRAORDINARY RENDITION. (a) The Director of the Central Intelligence Agency shall not allow a contractor or subcontractor to the Central Intelligence Agency to carry out an interrogation of an individual. Any interrogation carried out on behalf of the Central Intelligence Agency shall be conducted by an employee of such Agency. (b) No individual detained by the United States government shall be transferred to the custody of a different country unless the transfer is consistent with the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984, all relevant United States law, and any other international obligation of the United States. Extraordinary rendition is explicitly prohibited. SEC. 6. NOTIFICATION OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS.

(a) Requirement- The head of an element of the intelligence community or a contractor or subcontractor of such element who detains or has custody or effective control of an individual shall notify the International Committee of the Red Cross of the detention of the individual and provide access to such individual in a manner consistent with the practices of the Armed Forces. (b) Construction- Nothing in this section shall be construed— (1) to create or otherwise imply the authority to detain; or (2) to limit or otherwise affect any other rights or obligations which may arise under the Geneva Conventions, other international agreements, or other laws, or to state all of the situations under which notification to and access for the International Committee of the Red Cross is required or allowed. SEC. 7. REVIEW OF CIA DETENTION AND INTERROGATION PROGRAM. (a) The Senate Select Committee on Intelligence shall begin a review of the CIA’s detention and interrogation program to review the program and to shape detention and interrogation policies in the future, and to aid in the review, may form, for the duration of the study, an “Intelligence Review Commission” consisting of three members each appointed unanimously by Senate Select Committee on Intelligence. The review will include— (1)How the CIA created, operated, and maintained its detention and interrogation program; (2)How CIA’s assessments that detainees possessed relevant information were made; (3)Whether the CIA accurately described the detention and interrogation program to other parts of the U.S. government, including the Office of Legal Counsel and the Senate Intelligence Committee; (4)Whether the CIA implemented the program in compliance with official guidance, including covert action findings, Office of Legal Counsel opinions, and CIA policy; (5)An evaluation of intelligence information gained through the use of enhanced and standard interrogation techniques. (b)The review will run parallel to a White House review to be conducted as part of President Obama’s Executive Orders on detention and interrogation. (c) The Committee’s study will consist of extensive document review and interviews as are necessary to fully understand the creation and operation of the CIA detention and interrogation program.

SEC. 8. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS. (a) Limitations. — (1)IN GENERAL. —Notwithstanding any other provision of law, and subject to paragraph (3), a covered civil action shall not lie or be maintained in a Federal or State court, and shall be promptly dismissed, if the Attorney General certifies to the court that— (A) the assistance alleged to have been provided by the electronic communication service provider was-(i)

(ii)

in connection with an intelligence activity involving communications that was-(I)

authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and

(II)

designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and

described in a written request or directive from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was-(I)

authorized by the President; and

(II)

determined to be lawful; or

(B) the electronic communication service provider did not provide the alleged assistance. (2)SUBMISSION OF CERTIFICATION.--If the Attorney General submits a certification under paragraph (1), the court to which that certification is submitted shall-(A) immediately transfer the matter to the Foreign Intelligence Surveillance Court for a determination regarding the questions described in paragraph (3)(A);

and (B) stay further proceedings in the relevant litigation, pending the determination of the Foreign Intelligence Surveillance Court. (3)DETERMINATION.-(A) IN GENERAL.--The dismissal of a covered civil action under paragraph (1) shall proceed only if, after review, the Foreign Intelligence Surveillance Court determines that-(i)

the written request or directive from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider under paragraph (1)(A)(ii) complied with section 2511(2)(a)(ii) of title 18, United States Code, and the assistance alleged to have been provided was provided in accordance with the terms of that written request or directive;

(ii)

subject to subparagraph (C), the assistance alleged to have been provided was undertaken based on the good faith reliance of the electronic communication service provider on the written request or directive under paragraph (1)(A)(ii), such that the electronic communication service provider had an objectively reasonable belief under the circumstances that compliance with the written request or directive was lawful; or

(iii)

the electronic communication service provider did not provide the alleged assistance.

(C) PROCEDURES.-(i)

IN GENERAL.--In reviewing certifications and making determinations under subparagraph (A), the Foreign Intelligence Surveillance Court shall-(I)

review and make any such determination en banc; and

(II)

permit any plaintiff and any defendant in the applicable covered civil action to appear before the Foreign Intelligence Surveillance Court pursuant to section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803).

(ii)

APPEAL TO FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW.--A party to a proceeding described in clause (i) may appeal a determination under subparagraph (A) to the Foreign Intelligence Surveillance Court of Review, which shall have jurisdiction to review such determination.

(iii)

CERTIORARI TO THE SUPREME COURT.--A party to an appeal under clause (ii) may file a petition for a writ of certiorari for review of a decision of the Foreign Intelligence Surveillance Court of Review issued under that clause. The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

(iv)

STATE SECRETS.--The state secrets privilege shall not apply in any proceeding under this paragraph.

(D)SCOPE OF GOOD FAITH LIMITATION.--The limitation on covered civil actions based on good faith reliance under subparagraph (A)(ii) shall only apply in a civil action relating to alleged assistance provided on or before January 17, 2007. SEC. 9. RESTORATION OF HABEAS CORPUS FOR THOSE DETAINED BY THE UNITED STATES (a) RESTORATION OF HABEAS CORPUS- Removal of the due process right of habeas corpus as specified under Section (e) of the Military Commissions Act of 2006 is repealed. The amendment made by this act shall take effect and apply to any case that is pending on or after the date of enactment of this Act. SEC. 10. ENFORCEMENT OF REQUIREMENT TO REPORT LOST OR STOLEN PASSPORTS.

(b)Enforcement of Existing Requirement- Not later than 180 days after the date of the enactment of this Act, each program country shall have in effect an agreement with the United States as required by section 217(c)(2)(D) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(2)(D)).

(c) Failure To Agree To Report(1) SUSPENSION FROM THE PROGRAM- If a program country does not meet the requirements of subsection (a), the Secretary, in consultation with the Secretary of State, shall immediately suspend the program country's participation in the visa waiver program. (2) RESTORATION TO THE PROGRAM- With respect to a country that is suspended from participation in the visa waiver program under paragraph (1), the Secretary shall restore the country's participation on the date that the Secretary determines that the country meets the requirements of paragraph (1). (c) Limitation on New Program Countries- Notwithstanding any other provision of law, the Secretary may not designate a country as a program country until after the date that the Secretary certifies to Congress that the requirements of subsection (a) have been met. SEC. 11. ENFORCEMENT OF REQUIREMENT FOR PERIODIC EVALUATIONS OF PROGRAM COUNTRIES. (a) Enforcement of Existing Requirement- Not later than 1 year after the date of the enactment of this Act, the Secretary, in consultation with the Secretary of State, shall evaluate under section 217(c)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(5)(A)) each program country that was designated as a program country prior to January 1, 2009. Such evaluation shall include the visa overstay rate for each program country for the 1-year period ending on the date of the enactment of this Act. (b) Visa Overstay Rate Defined- In this section, the term `visa overstay rate' has the meaning given that term in section 217(c)(8)(C) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(8)(C)), as amended by section 6. ←(c) Failure To Comply With Program Requirements-

← (1) SUSPENSION FROM THE PROGRAM- If the periodic evaluation prepared under subsection (a) shows that a program country has a visa overstay rate that exceeds 2 percent, the Secretary, in consultation with the Secretary of State, shall immediately suspend the program country's participation in the visa waiver program. (2) RESTORATION TO THE PROGRAM- With respect to a country that is suspended from participation in the visa waiver program under paragraph (1), the Secretary shall restore the country's participation on the date that the Secretary determines that the country's visa overstay rate does not exceed 2 percent. (d) Limitation on New Program Countries- Notwithstanding any other provision of law, the Secretary may not designate a country as a program country until after the date that the Secretary certifies to Congress that the requirements of subsection (a) have been met. SEC. 12. ARRIVAL AND DEPARTURE VERIFICATION. (a) Requirement for Verification(1) IN GENERAL- Subparagraph (A) of section 217(c)(8) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(8)) is amended— 0(A) in clause (i)— 0(i) by striking `can verify' and inserting `verifies'; 0(ii) by inserting `arrival and' before `departure'; and 0(iii) by inserting `entry and' before `exit'; and 0(B) in clause (ii) by inserting `entry and' before `exit'. (2) CONFORMING AMENDMENT- Subparagraph (C) of such section 217(c)(8) is amended by inserting `entry and' before `exit'. (b) Limitation on New Program Countries- Notwithstanding any other provision of law, the Secretary may not designate a country as a program country until after the date that the Secretary certifies to Congress that the requirements of clause (i) of subsection (c)(8)(A) of section 217 of the Immigration and Nationality Act, as amended by subsection (a)(1), are met. (c) Audit(1) REQUIREMENT TO CONDUCT- Not later than 180 days after the date that the certification described in clause (i) of subsection (c)(8)(A) of section 217 the Immigration and Nationality Act (8 U.S.C. 1187), as amended by subsection (a)(1), is submitted to Congress, the

Comptroller of the United States shall conduct an audit of the travel authorization system described in subsection (h)(3) of that section and submit a report on such audit to Congress. (2) ELEMENTS- The report by paragraph (1) shall include— (A) a description of the data collected by such system; (B) the number of individuals who were identified by such system as being in violation of the immigration laws, disaggregated by country; and (C) an explanation of any problems in implementing such system encountered during the early stages of implementation to better identify high-risk travelers and countries of origin of such travelers. SEC. 13. VISA OVERSTAY RATES. Subparagraph (C) of section 217(c)(8) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(8)), as amended by section 5(a)(2), is further amended— (1) in clause (i), by striking the period at the end of the first sentence and inserting `, except that in no case may a maximum visa overstay rate exceed 2 percent.'; (2) by redesignating clause (iii) as clause (iv); (3) by inserting after clause (ii) the following: `(iii) DATA COMPILATION- The Secretary of Homeland Security shall compile data from all appropriate databases to determine the visa overstay rate for each country. Such databases shall include— `(I) the Advanced Passenger Information System (APIS); `(II) the Automated Fingerprint Identification System (IDENT); `(III) the Central Index System (CIS); `(IV) the Computer Linked Application Information Management Systems (CLAIMS); `(V) the Deportable Alien Control System (DACS); `(VI) the Integrated Automated Fingerprint Identification System (IAFIS); `(VII) the Nonimmigrant Information System (NIIS); `(VIII) the Reengineered Naturalization Applications Casework Systems (RNACS); and `(IX) the Refugees, Asylum, and Parole System (RAPS).'; and (4) by adding at the end the following: `(v) ANNUAL REPORT- Not less frequently than once each fiscal year, the Secretary of Homeland Security shall submit to the Committee on Foreign Relations and the Committee on the Judiciary of the Senate and the Committee on Foreign Affairs and the Committee on the Judiciary of the House of Representatives a report describing the visa

overstay rate for the previous fiscal year of each country designated as a program country under paragraph (1).'.