Detention: Law of: Legislative Development

House and Senate NDAA Differences on Transfers

By Benjamin Wittes
Thursday, June 23, 2011, 11:11 AM

I promised earlier this week to explore the differences between the House and Senate language in their respective versions of the National Defense Authorization Act concerning retrictions on transfers of detainees from Guantanamo Bay. I have now had a chance to examine the provisions side by side. The bottom line is that there are a few significant differences, though I'm not entirely sure how significant they would be in practice.

Current law and both bills require of the Secretary of Defense a detailed certification before the government may transfer a detainee. The first major difference between the two pending bills is that the House version covers only transfers during fiscal year 2012, while the Senate version would enact a permanent restriction. On the other hand, as I will explain, the terms of the Senate's certification requirements are, in significant ways, more flexible than the House bill. So for foes of transfer restrictions--and I am certainly one--there is a poison-picking exercise to be done here. Do you prefer a more onerous restriction applicable only for a year or do you prefer a somewhat less onerous restriction that applies in perpetuity?

Both bills require, in somewhat different language, a similar certification from the secretary. They both require certification, as the House bill puts it:

that the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo is to be transferred—

(A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;

(B) maintains effective control over each detention facility in which an individual is to be detained if the individual is to be housed in a detention facility;

(C) is not, as of the date of the certification, facing a threat that is likely to substantially affect its ability to exercise control over the individual;

(D) has agreed to take effective steps to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future;

(E) has taken such steps as the Secretary determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity;

(F) has agreed to share any information with the United States that—

(i) is related to the individual or any associates of the individual; and

(ii) could affect the security of the United States, its citizens, or its allies;

In addition, the House bill, but not the Senate version, contains an additional element of the requisite certification: that the foreign country "has agreed to allow appropriate agencies of the United States to have access to the individual, if requested."

Both bills similarly contain roughly comparable language preventing transfers entirely--except in cases of a court order or, in the Senate version, a pre-trial agreement that predates enactment of the bill--to countries which have seen cases of recidivism. The House language reads:

The Secretary of Defense may not transfer any individual detained at Guantanamo to the custody or effective control of the individual’s country of origin, any other foreign country, or any other foreign entity if there is a confirmed case of any individual detained at Guantanamo who was transferred to the foreign country or entity and subsequently engaged in any terrorist activity.

And here is where the second major difference arises. The House bill allows this specific restriction to be waived "if the Secretary determines that such a transfer is in the national security interests of the United States and includes, as part of the certification . . . the determination of the Secretary." In other words, in the House's version, the underlying certification requirement cannot be waived, but the specific bar on transfers to countries with recidivism can be.

By contrast, in the Senate version, the secretary can waive not only the recidivism bar but two key elements of the certification itself (specifically, the requirements that parallel those listed in paragraphs (D) and (E) above) if, after consulting with the DNI, he determines that:

(A) altnernative actions will be taken to address the underlying purpose of the requirement or requirements to be waived;

(B) in the case of a waiver of paragraph [(D) or (E)], it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated, but the actions to be taken . . .  will substantially mitigate such risks with regard tot he individual to be transferred;

(C) in the case of a waiver of [the recidivism requirement], the Secretary has considered any confirmed case in which an individual who was transferred to the country subsequently engaged in terrorist activity, and the actions to be taken . . . will substantially mitigate the risk of recidivism with regard to the individual to be transferred; and

(D) the transfer is in the national security interest of the United States.

At least on paper, this language would inject significant flexibility into the certification requirements. Less clear to me is whether in practice it would make the Pentagon any more willing to issue certifications--or waivers--than it is under current law. Doing so would, after all, still make the Secretary of Defense individually accountable for every nasty thing anyone transferred from Guantanamo ever does in the future. His name would still be on paper saying that the risk of that nasty thing had been if not eliminated, at least substantially mitigated. So the incentive structure would still be dramatically weighted in favor of maintaining any detention that isn't legally barred.

That said, if I were the administration, I would probably conclude that some form of transfer restriction is going to end up in the NDAA and the real question now is which sort of waiver--and which sort of temporal coverage--that requirement will contain. The administration should, of course, push to have the transfer language stripped out entirely. But failing that, it should push for the Senate's substantive language as limited by the House's coverage of FY 2012 only.