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Rep. Smith’s proposed NDAA amendments on Guantanamo and Indefinite Detention

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Thursday, June 13, 2013 at 12:36 PM

This week, Rep. Adam Smith (D-WA) filed two amendments to the National Defense Authorization Act for 2014 (H.R. 1960).  The first, co-sponsored by Rep. Jerrold Nadler (D-NY) and James Moran (D-VA), provides a framework to close the Guantanamo Bay detention facility by December 31, 2014 (full text here).  Smith advances a six-part plan for achieving that goal.  As summarized by the House Armed Services Committee Democrats, the plan

1.  Enhances the authority of a senior official in the Pentagon (pursuant to Section 1037 of HR 1960, the FY14 NDAA), who will be appointed by the President, by granting the authority to close the detention facility at Guantanamo Bay, Cuba. The underlying bill provides authority only to coordinate detainee transfers. This official must work with the intelligence community, the Department of Defense, the Joint Chiefs of Staff, the Department of State, and other interested Departments.

2.  All current limitations on the transfer of GTMO detainees in HR 1960 or existing statutes are removed. Sections 1032-34 of HR 1960, which ban the use of funds for the construction or modification of facilities in the United States for GTMO detainees, require certifications by the Secretary of Defense for transfer to foreign countries, and a ban on the transfer of GTMO detainees to the United States, are removed. Parallel restrictions in appropriations statutes and the current Continuing Resolution are also removed.

3.  Strikes the request for $247 million for military construction at GTMO in Section 2901 of HR 1960.

4.  Requires 30-day notice to Congress and a comprehensive report prior to any transfer of a GTMO detainee to a foreign country or to the United States for prosecution or continued law-of-war detention. The report includes an assessment by the Secretary of Defense and the intelligence community of security concerns about the individual. No transfer notice will be sent to Congress unless it is the consensus opinion of the military and intelligence communities that transfer of the detainee is appropriate.

5.  Eliminates all funding for the GTMO detention facility by December 31, 2014.

6.  Expedites requirements for a comprehensive plan from the President and the Department of Defense on how to close GTMO (within 60 days of enactment).

Smith’s other amendment (full text here), filed jointly with Rep. Chris Gibson (R-NY), is a renewed attempt to prohibit indefinite detention, after virtually identical efforts to amend the 2013 NDAA failed last year.  The pertinent part of the proposal says as follows:

(g) DISPOSITION OF PERSONS DETAINED IN THE UNITED STATES.

          (1) PERSONS DETAINED PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE OR THE FISCAL YEAR 2012.  In the case of a covered person who is detained in the United States, or a territory or possession of the United States, pursuant to the Authorization for Use of Military Force, this Act, disposition under the law of war shall occur immediately upon the person coming into custody of the Federal Government and shall only mean the immediate transfer of the person for trial and proceedings by a court established under Article III of the Constitution of the United States or by an appropriate State court. Such trial and proceedings shall have all the due process as provided for under the Constitution of the United States.

           (2) PROHIBITION ON TRANSFER TO MILITARY CUSTODY.—No person detained, captured, or arrested in the United States, or a territory or possession of the United States, may be transferred to the custody of the Armed Forces for detention under the Authorization for Use of Military Force, this Act, or the National Defense Authorization Act for Fiscal Year 2013.

(h) RULE OF CONSTRUCTION.

       This section shall not be construed to authorize the detention of a person within the United States, or a territory or possession of the United States, under the Authorization for Use of Military Force, this Act.

During the NDAA’s last go round, Lawfare commentators had plenty to say on a similar amendment Smith had put forward with Rep. Justin Amash (R-MI).  Bobby anticipated some fascinating debate.  Trevor thought the Smith-Amash bill was a “sensible as a policy matter” and knocked down criticisms that the legislation would allow terrorists to come to the United States and thereby gain additional rights.  And Ben agreed with Trevor’s policy endorsement, but was concerned with the “disposition . . . transfer of the person for trial” language—still present in the current version — that might inadvertently preclude the closure of Guantanamo Bay.

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