; and (2) is— (A) in the custody or under the effective control of the Department of Defense; or (B) otherwise under detention at United States Naval Station, Guantánamo Bay, Cuba. 8100. (a) Of the funds appropriated in this Act for the Department of Defense, amounts should be made available, under such regulations as the Secretary of Defense may prescribe, to local military commanders appointed by the Secretary, or by an officer or employee designated by the Secretary, to provide at their discretion ex gratia payments in amounts consistent with subsection (d) of this section for damage, personal injury, or death that is incident to combat operations of the Armed Forces in a foreign country. (b) An ex gratia payment under this section may be provided only if— (1) the prospective foreign civilian recipient is determined by the local military commander to be friendly to the United States; (2) a claim for damages would not be compensable under chapter 163 of title 10, United States Code (commonly known as the Foreign Claims Act )