The competing 2015 NDAA bills–A sign of hope for closing GTMO

On May 22, the House approved its version of the 2015 Defense Authorization Act by a vote of 325-98.  This Monday, Senator Levin introduced the version of the 2015 NDAA recently reported out of the Senate Armed Services Committee.

With respect to Guantánamo, the House version would not add any new restrictions; but it would, in effect, continue the status quo.  In particular, sections 1032 and 1033 would continue to prohibit the use of funds to transfer GTMO detainees to the United States for detention and/or trial.  Therefore, if the House version were to emerge from conference, the President would veto it, according to his Press Secretary:

This needs to be the year Congress lifts the remaining restrictions and enables the closure of the detention facility at Guantanamo Bay.  We call on Members of both parties to work together to ensure the United States meets this goal.  If this year’s Defense Authorization bill continues unwarranted restrictions regarding Guantanamo detainees, the President will veto the bill.

The SASC-approved version, by contrast, is a considerable improvement.  (The Counterterrorism provisions of the SASC version are set forth below.)  Most importantly, section 1031 of the SASC version would actually authorize the Secretary of Defense to transfer Guantánamo detainees to the United States for detention, trial and incarceration, subject to stringent security measures and legal protections–and thereby effectively to close the GTMO facility–after (i) he has submitted to Congress a report specifying various aspects and ramifications of such a closure; and (ii) “Congress fails to enact a joint resolution disapproving such report pursuant to” a mandatory fast-track procedure for up-or-down votes in both chambers on such a joint resolution prescribed in section 1031(i).

The bill does not define what it would mean for Congress to “fail” to enact the joint resolution of disapproval pursuant to subsection (i).  Obviously, if either chamber voted in the negative on the joint resolution of disapproval, that would be a “fail[ure]” that would trigger the Secretary’s authority to close GTMO.  What if both houses voted for the resolution–that is, to disapprove the closure plan–and (as is likely in such a case) the President then vetoed that joint resolution and one or both houses failed to override the veto by super-majority votes?  That, too, presumably would count as a “failure” to “enact” the resolution–not only because there literally would be no “enact[ment],” but also because if section 1031 were construed otherwise, it would in effect be authorizing a “two-house veto,” which almost certainly would be unconstitutional.  (See Process Gas Consumers Group v. Consumer Energy Council, 462 U.S. 1216 (1983) (summ. aff.).)

One potential further ambiguity lurks, however:  As subsection 1031(i)(6)(B) recognizes, either of the houses could unilaterally alter its own rules to supersede the fast-track procedures prescribed in section 1031(i).  What if, for example, the House amended its own rules to provide that it was not required to vote on the joint resolution in accordance with the section 1031(i) process, and the House subsequently failed to abide by that fast-track process (such as by declining to put the resolution to a vote within the relevant section 1031(i) time periods)?  Would the SecDef be authorized to close GTMO and move the detainees in that situation?  I think he would.  Section 1031(g) provides that the section 1031(b) transfer authority “shall take effect on the date . . . that Congress fails to enact a joint resolution disapproving such report pursuant to subsection (i).”  If the House changed its rules and then deviated from the 1031(i)-prescribed procedures, that action itself would directly cause Congress to fail to enact the J.R. pursuant to subsection (i).  Accordingly, such a deviation, assuming it precluded adherence to the 1031(i) process, would trigger the Secretary’s transfer authority.

If my reading of section 1031 is correct, this would be a major step forward.  Moreover, the SASC unanimously approved section 1031 on a bipartisan basis; and, to his credit, Lindsey Graham reportedly helped to draft that compromise, and is now open to the idea of closing Guantánamo:  “We had 50,000 German prisoners of war [in World War II], I know we can do this,” he said. “But I want to know what kind of legal system we are going to use.”

It is likely that the conflicting versions of the NDAA will be resolved in conference after the mid-term elections.  The overwhelming bipartisan support for the SASC version, together with the President’s veto threat for the House version, is an encouraging sign that perhaps this is the year when, finally, Congress might take the necessary steps to allow the closure of the facility at GTMO, as the President urged in his State of the Union address.

Unfortunately, the SASC also approved another provision, sponsored by Senators Ayotte and Chambliss and included as section 1034, that would impose a moratorium until January 1, 2016 on the transfer of any detainee to Yemen–regardless of whether such a transfer would, in a particular case, raise any risks whatsoever.  (The vote was 14-12, with Senators Hagan, Donnelly and King voting in favor and Senator McCain opposed.)  It is not clear how many GTMO detainees would be transferred to Yemen before 2016 even without this provision–presumably the Administration is working with the Yemeni government to establish security measures and means of rehabilitation to make such transfers more feasible, and it would be pure speculation for me to predict the timing for resolution of such matters.  But even if there might be a handful of transfers to Yemen over the next 19 months, a categorical moratorium would not serve any useful purpose, since any such pre-2016 transfers would in any event be made only where the Secretary of Defense has certified (as section 1035 of the 2014 NDAA requires) that the risk of such individual engaging in any hostile activity that threatens the United States or United States persons or interests has been substantially mitigated and that the transfer is in the nation’s national security interest.

Nevertheless, the section 1034 moratorium would apply only until 2016.  Therefore, if its inclusion turns out to be a necessary condition for approval of the Senate version of the NDAA, it would not appear to be too high a price to pay, given the distinct virtues of section 1031.

EXCERPT from SASC Version of the 2015 NDAA:

Subtitle D—Counterterrorism

SEC. 1031. LIMITATION ON THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) IN GENERAL.—Except as provided in subsection (b), none of the funds authorized to be appropriated by this Act for fiscal year 2015 may be used 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) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

(b) TRANSFER FOR DETENTION AND TRIAL.—The Secretary of Defense may transfer a detainee described in subsection (a) to the United States for detention pursuant to the Authorization for Use of Military Force (Public Law 107–40), trial, and incarceration if the Secretary—

(1) determines that the transfer is in the national security interest of the United States;

(2) determines that appropriate actions have been taken, or will be taken, to address any risk to public safety that could arise in connection with detention and trial in the United States; and

(3) notifies the appropriate committees of Congress not later than 30 days before the date of the proposed transfer.

(c) NOTIFICATION ELEMENTS.—A notification on a transfer under subsection (b)(3) shall include the following:

(1) A statement of the basis for the determination that the transfer is in the national security interest of the United States.

(2) A description of the action the Secretary determines have been taken, or will be taken, to address any risk to the public safety that could arise in connection with the detention and trial in the United States.

(d) STATUS WHILE IN THE UNITED STATES.—A detainee who is transferred to the United States under this section—

(1) shall not be permitted to apply for asylum under section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) or be eligible to apply for admission into the United States;

(2) shall be considered to be paroled into the United States temporarily pursuant to section 212(d)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)(A)); and shall not, as a result of such transfer, have a change in designation as an unprivileged enemy belligerent eligible for detention pursuant to the Authorization for Use of Military Force, as determined in accordance with applicable law and regulations.

(e) LIMITATION ON TRANSFER OR RELEASE OR [should probably be “OF”] DETAINEES TRANSFERRED TO THE UNITED STATES.—Notwithstanding any other provision of law, an individual who is transferred to the United States under this section shall not be released within the United States or its territories, and may only be transferred or released in accordance with the procedures under section 1035 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113–66; 128 Stat. 851).

(f) LIMITATIONS ON JUDICIAL REVIEW.—

(1) LIMITATIONS.—Except as provided for in paragraph (2), no court, justice, or judge shall have jurisdiction to hear or consider any action against the United States or its agents relating to any aspect of the detention, transfer, treatment, or conditions of confinement of a detainee described in subsection (a) who is held by the Armed Forces of the United States.

(2) EXCEPTION.—A detainee who is transferred to the United States under this section shall not be deprived of the right to challenge his designation as an unprivileged enemy belligerent by filing a writ of habeas corpus as provided by the Supreme Court in Hamdan v. Rumsfeld (548 U.S. 557 (2006)) and Boumediene v. Bush (553 U.S. 723 (2008)).

(3) NO CAUSE OF ACTION IN DECISION NOT TO TRANSFER.—A decision not to transfer a detainee to the United States under this section shall not give rise to a judicial cause of action.

(g) EFFECTIVE DATE.—

(1) IN GENERAL.—Subsections (b), (c), (d), (e), and (f) shall take effect on the date, following the date on which the Secretary of Defense submits to the appropriate committees of Congress a detailed plan to close the detention facility at United States Naval Station, Guantanamo Bay, Cuba, that Congress fails to enact a joint resolution disapproving such report pursuant to subsection (i).

(2) ELEMENTS.—The report required by paragraph (1) shall contain the following:

(A) A case-by-case determination made for each individual detained at Guantanamo of whether such individual is intended to be transferred to a foreign country, transferred to the United States for the purpose of civilian or military trial, or transferred to the United States or another country for continued detention under the law of armed conflict.

(B) The specific facility or facilities that are intended to be used, or modified to be used, to hold individuals inside the United States for the purpose of trial, for detention in the aftermath of conviction, or for continued detention under the law of armed conflict.

(C) The estimated costs associated with the detention inside the United States of individuals detained at Guantanamo.

(D) A description of the legal implications associated with the detention inside the United States of an individual detained at Guantanamo, including but not limited to the right to challenge such detention as unlawful.

(E) A detailed description and assessment, made in consultation with the Secretary of State and the Director of National Intelligence, of the actions that would be taken prior to the transfer to a foreign country of an individual detained at Guantanamo that would substantially mitigate the risk of such individual engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States person or interests.

(F) What additional authorities, if any, may be necessary to detain an individual detained at Guantanamo inside the United States as an unprivileged enemy belligerent pursuant to the Authorization for Use of Military Force, pending the end of hostilities or a future determination by the Secretary of Defense that such individual no longer poses a threat to the United States or United States persons or interests.

(3) FORM.—The report required by paragraph (1) shall be submitted in unclassified form, but may include a classified annex.

(h) INTERIM PROHIBITION.—The prohibition in section 1022 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1911) shall apply to funds appropriated or otherwise made available for fiscal year 2015 for the Department of Defense from the date of the enactment of this Act until the effective date specified in subsection (g).

(i) CONSIDERATION BY CONGRESS OF SECRETARY OF DEFENSE REPORT.—

(1) TERMS OF THE RESOLUTION.—For purposes of this section the term ‘‘joint resolution’’ means only a joint resolution which is introduced within the 10-day period beginning on the date on which the Secretary of Defense submits to Congress a report under subsection (g) and—

(A) which does not have a preamble;

(B) the matter after the resolving clause of which is as follows: ‘‘That Congress disapproves the report of the Secretary of Defense under section 1031(g) of the Carl Levin National Defense Authorization Act for Fiscal Year 2015 as submitted by the Secretary of Defense to Congress on _____’’, the blank space being filled in with the appropriate date; and

(C) the title of which is as follows: ‘‘Joint resolution disapproving the Guantanamo Detention Facility Closure report of the Secretary of Defense.’’.

(2) REFERRAL.—A resolution described in paragraph (1) that is introduced in the House of Representatives shall be referred to the Committee on Armed Services of the House of Representatives. A resolution described in paragraph (1) introduced in the Senate shall be referred to the Committee on Armed Services of the Senate.

(3) DISCHARGE.—If the committee to which a resolution described in paragraph (1) is referred has not reported such resolution (or an identical resolution) by the end of the 20-day period beginning on the date on which the Secretary submits to Congress a report under subsection (g), such committee shall be, at the end of such period, discharged from further consideration of such resolution, and such resolution shall be placed on the appropriate calendar of the House involved.

(4) CONSIDERATION.—(A) On or after the third day after the date on which the committee to which such a resolution is referred has reported, or has been discharged (under paragraph (3)) from further consideration of, such a resolution, it is in order (even though a previous motion to the same effect has been disagreed to) for any Member of the respective House to move to proceed to the consideration of the resolution. A Member may make the motion only on the day after the calendar day on which the Member announces to the House concerned the Member’s intention to make the motion, except that, in the case of the House of Representatives, the motion may be made without such prior announcement if the motion is made by direction of the committee to which the resolution was referred. All points of order against the resolution (and against consideration of the resolution) are waived. The motion is highly privileged in the House of Representatives and is privileged in the Senate and is not debatable. The motion is not subject to amendment, or to a motion to postpone, or to a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the resolution is agreed to, the respective House shall immediately proceed to consideration of the joint resolution without intervening motion, order, or other business, and the resolution shall remain the unfinished business of the respective House until disposed of.

(B) Debate on the resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 2 hours, which shall be divided equally between those favoring and those opposing the resolution. An amendment to the resolution is not in order. A motion further to limit debate is in order and not debatable. A motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the resolution is not in order. A motion to reconsider the vote by which the resolution is agreed to or disagreed to is not in order.

(C) Immediately following the conclusion of the debate on a resolution described in paragraph (1) and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the appropriate House, the vote on final passage of the resolution shall occur.

(D) Appeals from the decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives, as the case may be, to the procedure relating to a resolution described in paragraph (1) shall be decided without debate.

(5) CONSIDERATION BY OTHER HOUSE.—

(A) If, before the passage by one House of a resolution of that House described in paragraph (1), that House receives from the other House a resolution described in paragraph (1), then the following procedures shall apply:

(i) The resolution of the other House shall not be referred to a committee and may not be considered in the House receiving it except in the case of final passage as provided in clause (ii)(II).

(ii) With respect to a resolution described in paragraph (1) of the House receiving the resolution—

(I) the procedure in that House shall be the same as if no resolution had been received from the other House; but

(II) the vote on final passage shall be on the resolution of the other House.

(B) Upon disposition of the resolution received from the other House, it shall no longer be in order to consider the resolution that originated in the receiving House.

(6) RULES OF THE SENATE AND THE HOUSE OF REPRESENTATIVES.—

This subsection is enacted by Congress—

(A) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a resolution described in paragraph (1), and it supersedes other rules only to the extent that it is inconsistent with such rules; and

(B) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

(j) 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 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.

SEC. 1032. REPORT ON FACILITATION OF TRANSFER OVERSEAS OF CERTAIN INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) REPORT.—Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense and the Secretary of State shall jointly submit to the appropriate committees of Congress a report on the actions that have been taken and are planned to be taken to facilitate the transfer overseas of individuals detained at Guantanamo who have been approved for transfer.

(b) ELEMENTS.—The report required by subsection (a) shall include the following:

(1) For each individual detained at Guanta- namo in detention as of December 26, 2013, who has been approved for transfer overseas and has not been so transferred, a description of factors impeding the transfer.

(2) A description of the actions that have been taken by the Department of Defense and other Federal agencies to address the factors described in paragraph (1) impeding the transfer overseas of individuals described in that paragraph.

(3) A description of additional actions that are planned to be taken to address the factors described in paragraph (1) impeding the transfer overseas of such individuals.

(4) Such recommendations for legislative action as the Secretaries jointly consider appropriate to facilitate the transfer overseas of such individuals.

(c) TREATMENT AS APPROVED FOR TRANSFER.—For purposes of this section, an individual shall be considered to have been approved for transfer if—

(1) the individual was approved for transfer under the review conducted by the Guantanamo Detainee Review Task Force established pursuant to Executive Order 13492;

(2) the Secretary of Defense determines, following a review conducted in accordance with the requirements of section 1023 of the National Defense Authorization Act for Fiscal Year 2012 (10 U.S.C. 801 note) and Executive Order 13567, that the individual is no longer a threat to the national security of the United States; or

(3) the individual has been approved for trans- fer consistent with the provisions of section 1035 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113–66; 127 Stat. 851; 10 U.S.C. 801 note).

(d) 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 Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.

(2) The term ‘‘individual detained at Guantanamo’’ has the meaning given that term in section 1031(i)(2).

SEC. 1033. AUTHORITY TO TEMPORARILY TRANSFER INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO THE UNITED STATES FOR EMERGENCY OR CRITICAL MEDICAL TREATMENT.

(a) TRANSFER FOR EMERGENCY OR CRITICAL MEDICALTREATMENT AUTHORIZED.—Notwithstanding section 1031(a), or any other provision of law enacted after September 30, 2013, but subject to subsection (b), the Secretary of Defense may temporarily transfer any individual detained at Guantanamo to a Department of Defense medical facility in the United States for the sole purpose of providing the individual medical treatment if the Secretary determines that—

(1) the Senior Medical Officer, Joint Task Force–Guantanamo Bay, Cuba, has determined that the medical treatment is necessary to prevent death or imminent significant injury or harm to the health of the individual;

(2) based on the recommendation of the Senior Medical Officer, Joint Task Force–Guantanamo Bay, Cuba, the medical treatment is not available to be provided at United States Naval Station, Guantanamo Bay, Cuba, without incurring excessive and unreasonable costs; and

(3) the Department of Defense has provided for appropriate security measures for the custody and control of the individual during any period in which the individual is temporarily in the United States under this subsection.

(b) NOTICE TO CONGRESS REQUIRED BEFORE TRANSFER.—

(1) IN GENERAL.—In addition to the requirements in subsection (a), an individual may not be temporarily transferred under the authority in that subsection unless the Secretary of Defense submits to the appropriate committees of Congress the notice described in paragraph (2)—

(A) not later than 30 days before the date of the proposed transfer; or

(B) if notice cannot be provided in accordance with subparagraph (A) because of an especially immediate need for the provision of medical treatment to prevent death or imminent significant injury or harm to the health of the individual, as soon as is practicable, but not later than 5 days after the date of transfer.

(2) NOTICE ELEMENTS.—The notice on the transfer of an individual under this subsection shall include the following:

(A) A statement of the basis for the determination that the transfer is necessary to pre- vent death or imminent significant injury or harm to the health of the individual.

(B) The specific Department of Defense medical facility that will provide medical treatment to the individual.

(C) A description of the actions the Secretary determines have been taken, or will be taken, to address any risk to the public safety that could arise in connection with the provision of medical treatment to the individual in the United States.

(c) LIMITATION ON EXERCISE OF AUTHORITY.—The authority of the Secretary of Defense under subsection (a) may be exercised only by the Secretary of Defense or by another official of the Department of Defense at the level of Under Secretary of Defense or higher.

(d) CONDITIONS OF TRANSFER.—An individual who is temporarily transferred under the authority in subsection (a) shall—

(1) while in the United States, remain in the custody and control of the Secretary of Defense at all times; and

(2) be returned to United States Naval Station, Guantanamo Bay, Cuba, as soon as feasible after a Department of Defense physician determines that—

(A) the individual is medically cleared to travel; and

(B) in consultation with the Commander, Joint Task Force–Guantanamo Bay, Cuba, any necessary follow-up medical care may reasonably be provided the individual at United States Naval Station, Guantanamo Bay, Cuba.

(e) STATUS WHILE IN UNITED STATES.—An individual who is temporarily transferred under the authority in subsection (a), while in the United States—

(1) shall be deemed at all times and in all respects to be in the uninterrupted custody of the Secretary of Defense, as though the individual remained physically at United States Naval Station, Guantanamo Bay, Cuba;

(2) shall not at any time be subject to, and may not apply for or obtain, or be deemed to enjoy, any right, privilege, status, benefit, or eligibility for any benefit under any provision of the immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)), or any other law or regulation;

(3) shall not be permitted to avail himself of any right, privilege, or benefit of any law of the United States beyond those available to individuals detained at United States Naval Station, Guantanamo Bay, Cuba; and

(4) shall not, as a result of such transfer, have a change in any designation that may have attached to that detainee while detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force (Public Law 107–40), as determined in accordance with applicable law and regulations.

(f) JUDICIAL REVIEW PRECLUDED.—

(1) NO CREATION OF ENFORCEABLE RIGHTS.— Nothing in this section is intended to create any enforceable right or benefit, or any claim or cause of action, by any party against the United States, or any other person or entity.

(2) LIMITATION ON JUDICIAL REVIEW.—Except as provided in paragraph (3), no court, justice, or judge shall have jurisdiction to hear or consider any claim or action against the United States or its agents relating to any aspect of the detention, transfer, treatment, or conditions of confinement of an individual transferred under this section.

(3) HABEAS CORPUS.—

(A) JURISDICTION.—The United States District Court for the District of Columbia shall have exclusive jurisdiction to consider an application for writ of habeas corpus challenging the fact or duration of detention and seeking release from custody filed by or on behalf of an individual who is in the United States pursuant to a temporary transfer under subsection (a). Such jurisdiction shall be limited to that required by the Constitution with respect to the fact or duration of detention.

(B) SCOPE OF AUTHORITY.—A court order in a proceeding covered by paragraph (3) may not—

(i) review, halt, or stay the return of the individual who is the object of the application to United States Naval Station, Guantanamo Bay, Cuba, including pursuant to subsection (d); or

(ii) order the release of the individual within the United States.

(g) DEFINITIONS.—In this section:

(1) The term ‘‘appropriate committees of Congress’’ has the meaning given that term in section 1031(i)(1).

(2) The term ‘‘individual detained at Guantanamo’’ has the meaning given that term in section 1031(i)(2).

SEC. 1034. PROHIBITION ON TRANSFER OR RELEASE TO YEMEN OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

None of the amounts authorized to be appropriated or otherwise available to the Department of Defense may be used to transfer, release, or assist in the transfer or release, during the period beginning on the date of the enactment of this Act and ending on December 31, 2015, 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.