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This Evening’s Vote on NDAA Amendments Regarding GTMO

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Tuesday, November 19, 2013 at 6:16 PM

This evening, the Senate voted on two GTMO-flavored amendments to the FY2014 National Defense Authorization Act.

One amendment was put forth by Senators Carl Levin and John McCain, and would have (among other things) liberalized the NDAA transfer regime so as to permit, at least in principle. trials of Guantanamo detainees in the United States.  (UPDATE: To be clear, the Levin-McCain Amendment’s rejection leaves untouched the pending Senate legislation, which, like Levin-McCain, also contains language allowing for transfers to the United States for detention and/or trial.)

The other item was an amendment offered by Senator Kelly Ayotte.  Her proposal is entirely unsurprising (and in my view, exquisitely wrongheaded) boilerplate, given her longstanding, keep-Guantanamo-open-at-all-costs-and-hamstring-the-President’s-transfer-power stance. The Senator’s language would, for example,  carry forward the onerous NDAA certification regime for transfers to foreign nations, while entirely banning any transfer of Guantanamo detainees to Yemen.  And, yes, the Amendment also would generally bar the expenditure of defense funds for purposes of trying or detaining GTMO detainees stateside—though the prohibition would not apply to future detainees, who are brought initially to Guantanamo for interrogation purposes.

The same “legacy detainee” approach can be found in this oddball part of Ayotte’s Amendment, too:

 SEC. 1035.  PROHIBITION ON USE OF FUNDS TO CONSTRUCT OR MODIFY FACILITIES IN THE UNITED STATES TO HOUSE DETAINEES TRANSFERRED FROM UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) IN GENERAL.—No amounts authorized to be appropriated or otherwise made available for fiscal year 2014 by this Act or any other Act may be used to construct or modify any facility in the United States, its territories, or possessions to house any individual detained at Guantanamo for the purposes of detention or imprisonment unless authorized by Congress.

(b) EXCEPTION.—The prohibition in subsection (a) shall not apply to any modification of facilities at United States Naval Station, Guantanamo Bay, Cuba.

(c) INDIVIDUAL DETAINED AT GUANTANAMO DEFINED.—

 (1) IN GENERAL.—In this section, the term “individual detained at Guantanamo” means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—

(A) is not a citizen of the United States or a member of the Armed Forces of the United States; and

(B) is—

(i) in the custody or under the control of the Department of Defense; or

(ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.

(2) EXCLUSION.—The term does not mean any individual transferred to United States Naval Station, Guantanamo Bay, Cuba, after October 1, 2009, who was not located at United States Naval Station, Guantanamo Bay, Cuba, on that date.

UPDATE: the Senate has voted down the Ayotte amendment on a 43-to-55 vote, with 40 Republicans and 3 Democrats in favor (Donnelly, Hagan, and Pryor), and 3 Republicans (Flake, McCain, and Paul) and 52 Democrats opposed.

The Levin-McCain proposal, too, was voted down, 52-46, with 50 Democrats joining with GOP Senators McCain and Collins in favor, and 3 Democrats (Leahy, Pryor, Warren, and Wyden) and 43 Republicans voting against it.