Detention: Law of: Legislative Development

House vs. Senate on the NDAA

By Benjamin Wittes
Sunday, June 30, 2013, 4:05 PM

Raffaela has already posted on both the House of Representatives's and the Senate's versions of this year's NDAA--highlighting their differences with regards to Guantanamo detentions and transfers. But I wanted to emphasize the point, which seems to me both very important and potentially offering a major breakthrough in the politics of Guantanamo.

In the past, both houses of Congress have, to varying degrees, sought to tie President Obama's hands with respect to detention policy: making it more difficult to transfer people to the United States for trial and making it hard---nearly impossible---to transfer detainees overseas. This time around, by contrast, one house of Congress (the House of Representatives) is continuing to play those games. But the other (the Senate) is contemplating a significant loosening of the binds. If something like the Senate bill could emerge, it would mark very substantial progress.

Consider first the House bill (H.R. 1960), which has already passed the chamber. Were it to become law, the administration would not be permitted to use any appropriated funds to build alternative facilities for housing Guantanamo detainees (Sec. 1032). It would be forbidden to transfer any detainees abroad without complying with the same sort of onerous certification requirements it currently faces, even if a detainee had served his sentence or been acquitted in a military commission (Sec. 1033). It would not be allowed to transfer any detainee to the United States for detention or trial (Sec. 1034). It would not be allowed use any appropriated funds "to provide additional or upgraded recreational facilities for individuals detained at" Guantanamo (Sec. 1040C). And it would be forbidden to use appropriated funds to transfer any detainees to Yemen at all (Sec. 1040D). In other words, more of the same policy we are currently living under.

By contrast, the Senate bill (S. 1197), were it to become law, would alter the landscape a lot. Under its terms, the Pentagon could transfer a detainee if the Periodic Review Boards set up in Executive Order 13567 found "that the individual is no longer a threat to the national security of the United States." (For this to happen, of course, the administration would actually have to convene some PRBs, but that's really not the Senate's issue.) It could also transfer a detainee who has been acquitted of criminal charges or completed a sentence (Sec. 1031(a)). What's more, the administration could transfer a detainee certifying only that "actions that have been or are planned to be taken will substantially mitigate the risk of such individual engaging or reengaging in any terrorist or other hostile activity that threatens the United States" and that the transfer "is in the national security interests of the United States" (Sec. 1031(b)). The factors that constitute onerous restrictions in the House bill are, in the Senate version, mere factors to "take into consideration" (Sec. 1031(c)). The Senate bill requires notification and explanation of transfer decisions to Congress at least 30 days before the transfer happens (Sec. 1031(d))---which creates a record of accountability if and when things go bad. But it does not prevent them from happening. That's a big difference.

The Senate bill also relaxes the transfer restrictions to the United States---in two ways. First, it permits DoD to "temporarily transfer any individual detained at Guantanamo" to a DoD facility in the United States "for the sole purpose of providing medical treatment" if that treatment is "necessary to prevent death or imminent significant injury or harm" and the treatment is not available at reasonable cost at Guantanamo (Sec. 1032). More importantly, the Senate version relaxes the ban on detainee transfers to the United States for trial, allowing them if the Secretary of Defense finds that a transfer is in the interests of national security and that "appropriate actions have been taken, or will be taken, to address any risk to public safety," and gives Congress an explanation and 30 days notice (Sec. 1033).

In other words, were the Senate bill to become law, it would become possible---if the Executive Branch had the political will---both to resume transferring detainees abroad who do not need to remain at Guantanamo and to bring to the United States the small number of detainees who make sense to try in federal courts. By contrast if the House language becomes law, the result will be continued stagnation. For the first time in quite a while, in other words, transfer policy is seriously at play in congressional politics.