Detention: Law of: Legislative Development

The Senate Armed Services Committee's GTMO Transfer Provisions in the 2014 NDAA

By Raffaela Wakeman
Tuesday, June 25, 2013, 11:22 AM

Last week, the Senate Armed Services Committee (SASC) approved its version of the National Defense Authorization Act for FY2014. (The House passed its iteration a week earlier.) The House version left intact the same prohibitions on the transfer of detainees held at Guantanamo out of the detention facility as in previous defense authorization bills.

The SASC, by contrast, has altered the transfer provisions to make them less stringent, requiring the SecDef's decision on whether to certify a transfer to be based on the Period Review Board's findings that the detainee is no longer a threat to national security. The Senate bill would also allow transfers required to effectuate a court order and transfers where the detainee has been tried in a court and either acquitted or convicted and completed his sentence. The Senate bill requires that the SecDef ensure that action has or will be taken to mitigate the recidivism risk for the detainee, as well as that he find that the transfer is in the national security interest. There would be congressional notification required, too: the SecDef must notify the committees with jurisdiction at least 30 days prior to the transfer or release.

In its Committee Report, the SASC acknowledges the White House's complaints about past transfer provisions, and expresses its intent when the previous provisions were drafted:

The committee notes that the administration has raised concerns that the certification requirements Congress has enacted on the transfer of Guantanamo detainees to foreign countries have made it difficult, if not impossible, to carry out such transfers. At the same time, the administration has yet to attempt to transfer any Guantanamo detainee under the certification requirements or to use the national security waiver granted under section 1028 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81) and section 1028 of the National Defense Authorization Act for Fiscal year 2013 (Public Law 112–239). The committee emphasizes that the certification requirements for such transfers were never intended to constitute an absolute prohibition on the transfer of Guantanamo detainees to countries other than the United States, and believes the provisions of this section should help clarify the requirements applicable to such transfers.

The Senate version also has adds a provision that authorizes temporary transfers for emergency or critical medical treatment in certain circumstances, perhaps in response to the hunger strike. SASC's comment in the Committee Report says the following:

The committee recommends a provision that would allow the Secretary of Defense to authorize the temporary transfer of detainees at the Guantanamo detention facility (GTMO) to a Department of Defense (DOD) medical facility for the sole purpose of providing emergency or critical medical treatment that is not available at GTMO and is necessary to prevent death or imminent significant injury or harm to the individual’s health. The detainee would not be admitted into the United States during the period of the medical treatment and must be returned to GTMO as soon as medically feasible.

The committee notes that the United States is obligated under domestic law and Common Article 3 of the Geneva Conventions to provide for the humane treatment of detainees in its custody. The authority granted the Secretary of Defense under this section would address concerns that have arisen regarding the standard of medical care for GTMO detainees, particularly as that population ages, and U.S. compliance with its obligations to provide humane treatment.

Read the text of these provisions here, and the full bill here.