Transfers, Releases & Resettlements

Text of Senator Ayotte's GTMO Transfers Bill

By Wells Bennett
Tuesday, January 13, 2015, 2:20 PM

As promised, here it is.

The rather unfortunate-seeming proposal provides, in full:

114TH CONGRESS 1ST SESSION S.__

To extend and enhance prohibitions and limitations with respect to the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, and for other purposes.

IN THE SENATE OF THE UNITED STATES

Ms. AYOTTE (for herself, Mr. GRAHAM, Mr. BURR, and Mr. MCCAIN) introduced the following bill; which was read twice and referred to the Committee on l______

A BILL

To extend and enhance prohibitions and limitations with respect to the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. 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) PROHIBITION.—No amounts appropriated or otherwise available for any department or agency of the United States Government may be used, during the period beginning on the date of the enactment of this Act and ending on the date that is two years after the date of the enactment of this Act, to construct or modify any facility in the United States, its territories, or possessions to house an individual detained at Guantanamo for the purpose of detention or imprisonment in the custody or control of the United States Government 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.—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—

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

(2) is—

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

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

(d) REPEAL OF SUPERSEDED PROHIBITION.—Section 1033 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113–66; 127 Stat. 850), as amended by section 1032 of the Carl Levin and Howard P. ‘‘Buck’’ McKeon National Defense Authorization Act  for Fiscal Year 2015 (Public Law 113–291), is repealed.

SEC. 2. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO THE UNITED STATES OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) PROHIBITION.—No amounts appropriated or otherwise available for any department or agency of the United States Government may be used, during the period beginning on the date of the enactment of this Act and ending on the date that is two years after the date of the enactment of this Act, to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who—

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

(2) was held on January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

(b) REPEAL OF SUPERSEDED PROHIBITION.—Section 1034 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113–66; 127 Stat. 851), as amended by section 1033 of the Carl Levin and Howard P. ‘‘Buck’’ McKeon National Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291), is repealed.

SEC. 3. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE ABROAD OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, DETERMINED OR ASSESSED TO BE HIGH-RISK OR MEDIUM RISK THREATS.

(a) PROHIBITION.—

(1) IN GENERAL.—Notwithstanding any other provision of law, no amounts appropriated or otherwise available for any department or agency of the United States Government may be used, during the period beginning on the date of the enactment of this Act and ending on the date that is two years after the date of the enactment of this Act, to transfer, release, or assist in the transfer or release of any individual described in paragraph (2) to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity.

(2) COVERED INDIVIDUALS.—An individual described in this paragraph is any individual detained
in the custody or under the control of the Department of Defense at United States Naval Station, Guantanamo Bay, Cuba, who is currently or ever has been determined or assessed by Joint Task Force Guantanamo to be a high-risk or medium-risk threat to the United States, its interests, or its allies.

(b) EXCEPTION.—Subsection (a) shall not apply to any action taken by the head of a department or agency of the United States Government to transfer, release, or assist in the transfer or release of any individual described in that subsection to effectuate an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify the appropriate committees of Congress promptly after issuance).

(c) APPROPRIATE COMMITTEES OF CONGRESS DE2
FINED.—In this section, the term ‘‘appropriate commit3
tees of Congress’’ means—

(1) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and (2) the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.

SEC. 4. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO YEMEN OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

Notwithstanding any other provision of law, no amounts appropriated or otherwise available for any department or agency of the United States Government maybe used, during the period beginning on the date of the enactment of this Act and ending on the date that is two years after the date of the enactment of this Act, to transfer, release, or assist in the transfer or release of any individual detained in the custody or under the control of the Department of Defense at United States Naval Station, Guantanamo Bay, Cuba, to the custody or control of the Republic of Yemen or any entity within Yemen.

SEC. 5. REENACTMENT AND MODIFICATION OF CERTAIN PRIOR REQUIREMENTS FOR CERTIFICATIONS RELATING TO TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.

(a) CERTIFICATION REQUIRED PRIOR TO TRANSFER.

(1) IN GENERAL.—Except as provided in paragraph (3) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity unless the Secretary submits to the appropriate committees of Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual.

(2) SCOPE OF REQUIREMENT.—The requirement in paragraph (1) applies to any authorized transfer or release of an individual described in that paragraph after the date of the enactment of this Act, including a transfer or release of such an individual who is also described in paragraph (2) of section 3(a) after the prohibition in section 3(a) ceases to be in effect.

(3) EXCEPTION.—Paragraph (1) shall not
4 apply to any action taken by the Secretary to trans5
fer any individual detained at Guantanamo to effec6
tuate an order affecting the disposition of the indi7
vidual that is issued by a court or competent tri8
bunal of the United States having lawful jurisdiction
9 (which the Secretary shall notify the appropriate
10 committees of Congress of promptly after issuance).

(b) CERTIFICATION.—A certification described in this subsection is a written certification made by the Secretary of Defense, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, that—

(1) 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 control over each detention facility in which the 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 taken or agreed to take effective
actions to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future;

(E) has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity; and

(F) has agreed to share with the United States any information 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; and

(2) includes an assessment, in classified or unclassified form, of the capacity, willingness, and past practices (if applicable) of the foreign country or entity in relation to the Secretary’s certifications.

(c) PROHIBITION IN CASES OF PRIOR CONFIRMED RECIDIVISM.—

(1) PROHIBITION.—Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise made available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or 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 who was detained at
United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.

(2) EXCEPTION.—Subject to subsection (e), paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify the appropriate committees of Congress of promptly after issuance).

(d) NATIONAL SECURITY WAIVER.—

(1) IN GENERAL.—Subject to subsection (e), the Secretary of Defense may waive the applicability to a detainee transfer of a certification requirement specified in subparagraph (D) or (E) of subsection (b)(1) or the prohibition in subsection (c), if the Secretary certifies the rest of the criteria required by subsection (b) for transfers prohibited by subsection (c) and, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, determines that—

(A) alternative 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 subparagraph (D) or (E) of subsection (b)(1), 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 under subparagraph (A) will substantially mitigate such risks with regard to the individual to be transferred;

(C) in the case of a waiver of subsection (c), 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 under subparagraph (A) will substantially mitigate the risk of recidivism with regard to the individual to be transferred; and

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

(2) REPORTS.—Whenever the Secretary makes a determination under paragraph (1), the Secretary shall submit to the appropriate committees of Congress, not later than 30 days before the transfer of the individual concerned, the following:

(A) A copy of the determination and the waiver concerned.

(B) A statement of the basis for the determination, including—

(i) an explanation why the transfer is in the national security interests of the United States;
(ii) in the case of a waiver of paragraph (D) or (E) of subsection (b)(1), an explanation why it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated; and
(iii) a classified summary of—

(I) the individual’s record of cooperation while in the custody of or under the effective control of the Department of Defense; and
(II) the agreements and mechanisms in place to provide for continuing cooperation.

(C) A summary of the alternative actions to be taken to address the underlying purpose of, and to mitigate the risks addressed in, the paragraph or subsection to be waived.

(D) The assessment required by subsection (b)(2).

(e) COORDINATION WITH PROHIBITION ON TRANS15
FER TO YEMEN.—While the prohibition in section 4 is in effect, the exception in subsection (c)(2) and the waiver authority in subsection (d) shall not apply to authorize the transfer of an individual detained at Guantanamo to Yemen.

(f) RECORD OF COOPERATION.—In assessing the risk that an individual detained at Guantanamo will engage in terrorist activity or other actions that could affect the security of the United States if released for the purpose of making a certification under subsection (b) or a waiver under subsection (d), the Secretary of Defense may give favorable consideration to any such individual—

(1) who has substantially cooperated with United States intelligence and law enforcement authorities, pursuant to a pre-trial agreement, while inthe custody of or under the effective control of the Department of Defense; and

(2) for whom agreements and effective mechanisms are in place, to the extent relevant and necessary, to provide for continued cooperation with United States intelligence and law enforcement authorities.

(g) DEFINITIONS.—In this section:

(1) The term ‘‘appropriate committees of Congress’’ means—

(A) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and

(B) the Committee on Armed Services, the
20 Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.

(2) 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.

 (3) The term ‘‘foreign terrorist organization’’ means any organization so designated by the Secretary of State under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).

(h) REPEAL OF SUPERSEDED REQUIREMENTS AND  LIMITATIONS.—

Section 1035 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113–19 66; 127 Stat. 851; 10 U.S.C. 801 note) is repealed.

SEC. 6. REPORT ON CURRENT DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, DETERMINED OR ASSESSED TO BE HIGH-RISK OR MEDIUM RISK.

(a) REPORT REQUIRED.—Not later than 60 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report, in unclassified form, setting forth a list of the individuals detained at Guantanamo as of the date of the enactment of this Act who have been determined or assessed by Joint Task Force Guantanamo, at any time before the date of the report, to be a high-risk or medium risk threat to the United States, its interests, or its allies.

(b) ELEMENTS.—The report under subsection (a) shall set forth, for each individual covered by the report, the following:

(1) The name and country of origin.

(2) The date on which first designated or assessed as a high-risk or medium-risk threat to the United States, its interests, or its allies.

(3) Whether, as of the date of the report, currently designated or assessed as a high-risk or medium-risk threat to the United States, its interests, or its allies.

(4) If the designation or assessment changed between the date specified pursuant to paragraph (2) and the date of the report, the year and month in which the designation or assessment changed and the designation or assessment to which changed.

(5) To the extent practicable, without jeopardizing intelligence sources and methods—

(A) prior actions in support of terrorism, hostile actions against the United States or its allies, gross violations of human rights, and other violations of international law; and

(B) any affiliations with al Qaeda, al Qaeda affiliates, or other terrorist groups.

(c) DEFINITIONS.—In this section:

(1) The term ‘‘appropriate committees of Con9
gress’’ means—

(A) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and

(B) the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.

(2) 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.