Detention: Law of: Legislative Development

Senate NDAA Amendments Update

By Wells Bennett
Tuesday, December 4, 2012, 9:41 PM

As readers know, last Thursday the Senate approved Senator Feinstein’s amendment to the NDAA, regarding the domestic detention of citizens and lawful permanent residents.

That wasn’t all.  Now, after further debating and voting, the Senate’s updated bill also conditions the availability of certain funds for the Executive Office of the President on prior congressional notification regarding any long-term bilateral security agreement with Afghanistan (SA 3009); and requires the executive branch to report on the threats posed by Boko Haram (SA 3036), and insider attacks in Afghanistan (SA 3042).  As expected, the Senate additionally carried forward the prohibition on the expenditure of funds to transfer Guantanamo detainees to the United States (SA 3245).    We had reported earlier on a batch of amendments submitted during last week’s debate; if you don’t see amendments from that group noted here, then to our knowledge, the Senate has not added them to that chamber's version of the NDAA 2013.

The latter didn't-make-it-into-the-bill category also includes this eyebrow-raising amendment: SA 2999, proposed by Senator Kelly Ayotte.  With the following language, she would have put the Administration to a stark choice regarding Guantanamo:


(a) Plan Required.--Not later than 60 days after the date of the enactment of this Act, the Secretary of Defense and the Director of National Intelligence shall jointly submit to the appropriate committees of Congress a plan for the identification or establishment of a facility outside the United States as the location for the long-term detention by the United States, consistent with the laws of war, of foreign members of al Qaeda and associated forces who are captured outside Afghanistan. The location of the long-term detention shall be identified or established by not later than 180 days after the date of the enactment of this Act.

So the President either would have: (a) to double-down on Guantanamo for the long run (by "identifying" the base as the Administration's long-term detention facility); or (b) to abandon it, while at the same time "establishing" a substitute somewhere overseas?  That's some provocative stuff, in light of the stringent rules governing detainee transfers to foreign custody, and the effective ban on transfers from Guantanamo to U.S. soil.

You can read a report on the Ayotte amendment by Mother Jones’ Adam Serwer, here.

UPDATE (12/5):  the Senate voted 98 to 0, with two Senators not voting, to pass the NDAA.  The latter included an additional amendment, SA 3262, which would require the executive branch to submit a "report identifying the limited military activities that could deny or significantly degrade the ability of President Bashar al-Assad of Syria."