S.Amdt. 1448

SA 1448. Mr. LIEBERMAN (for himself and Mr. Graham) submitted an
amendment intended to be proposed to amendment SA 1373 proposed by Mr.
Reid (for Mr. Byrd (for himself, Mr. Inouye, and Mrs. Murray)) to the
bill H.R. 2892, making appropriations for the Department of Homeland
Security for the fiscal year ending September 30, 2010, and for other
purposes; as follows:

At the appropriate place, insert the following:

SEC. ___. DETAINEE PHOTOGRAPHIC RECORDS PROTECTION AND OPEN
FREEDOM OF INFORMATION ACT.

(a) Detainee Photographic Records Protection.--
(1) Short title.--This subsection may be cited as the
``Detainee Photographic Records Protection Act of 2009''.
(2) Definitions.--In this subsection:
(A) Covered record.--The term ``covered record'' means any
record--
(i) that is a photograph that--

(I) was taken during the period beginning on September 11,
2001, through January 22, 2009; and
(II) relates to the treatment of individuals engaged,
captured, or detained after September 11, 2001, by the Armed
Forces of the United States in operations outside of the
United States; and

(ii) for which a certification by the Secretary of Defense
under paragraph (3) is in effect.
(B) Photograph.--The term ``photograph'' encompasses all
photographic images, whether originals or copies, including
still photographs, negatives, digital images, films, video
tapes, and motion pictures.
(3) Certification.--
(A) In general.--For any photograph described under
paragraph (2)(A)(i), the Secretary of Defense shall certify,
if the Secretary of Defense, in consultation with the
Chairman of the Joint Chiefs of Staff, determines that the
disclosure of that photograph would endanger--
(i) citizens of the United States; or
(ii) members of the Armed Forces or employees of the United
States Government deployed outside the United States.
(B) Certification expiration.--A certification submitted
under subparagraph (A) and a renewal of a certification
submitted under subparagraph (C) shall expire 3 years after
the date on which the certification or renewal, as the case
may be, is submitted to the President.
(C) Certification renewal.--The Secretary of Defense may
submit to the President--
(i) a renewal of a certification in accordance with
subparagraph (A) at any time; and
(ii) more than 1 renewal of a certification.
(D) Notice to congress.--A timely notice of the Secretary's
certification shall be submitted to Congress.
(4) Nondisclosure of detainee records.--A covered record
shall not be subject to--
(A) disclosure under section 552 of title 5, United States
Code (commonly referred to as the Freedom of Information
Act); or
(B) disclosure under any proceeding under that section.
(5) Rule of construction.--Nothing in this subsection shall
be construed to preclude the voluntary disclosure of a
covered record.
(6) Effective date.--This subsection shall take effect on
the date of enactment of this Act and apply to any photograph
created before, on, or after that date that is a covered
record.
(b) Open Freedom of Information Act.--
(1) Short title.--This subsection may be cited as the
``OPEN FOIA Act of 2009''.
(2) Specific citations in statutory exemptions.--Section
552(b) of title 5, United States Code, is amended by striking
paragraph (3) and inserting the following:
``(3) specifically exempted from disclosure by statute
(other than section 552b of this title), if that statute--
``(A)(i) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the
issue; or
``(ii) establishes particular criteria for withholding or
refers to particular types of matters to be withheld; and
``(B) if enacted after the date of enactment of the OPEN
FOIA Act of 2009, specifically cites to this paragraph.''.
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