This week, the full Senate is considering the proposed Fiscal Year 2016 Defense Authorization bill, the text of which was very recently made public. While the bill covers billions of dollars worth of Pentagon spending, it also has contains specific conditions under which detainees at Guantánamo might be transferred to the United States. Earlier this week however, White House staff advised the President to veto the Senate’s bill, in part due to “unwise” and “unnecessary” restrictions it places on the closure of the detention facility at Guantánamo and the transfer of detainees.
The bill, advanced by a Senate Armed Services Committee led by John McCain (R-Ariz.), allows for the transfer of detainees to the US for detention and trial, if certain conditions are met:
(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.
Additionally, Section 1032(g) of the bill requires the Defense Secretary to submit a detailed “report setting forth a comprehensive plan on the disposition of detainees held at United States Naval Station, Guantanamo Bay, Cuba” and outlines the information that the report must contain. Per Section 1032(h), the plan must be approved before the facility can be closed. Section 1032(i) places restrictions on the release or transfer within the US of any detainee once he has been moved.
The Guantánamo-related section of the statement of administration policy and its veto recommendation reads as follows:
Guantanamo Detainee Provisions: The Administration strongly objects to provisions of the bill that would impede efforts to close the detention facility at Guantanamo Bay, Cuba. As the Administration has said many times before, operating this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists.
While the Administration appreciates the additional flexibility provided by section 1034, which would permit the temporary transfer of detainees to the United States for certain medical care, other provisions of the bill are more restrictive than existing provisions to which the Administration has repeatedly objected. Not only would provisions of the bill extend existing restrictions, they would impose additional unwise and unnecessary ones that would further impede efforts to responsibly close the facility. While the bill would relax certain of these restrictions if Congress approves a plan to close the facility by joint resolution, this process for congressional approval is unnecessary and overly restrictive. Sections 1031 and 1032 would prohibit the use of funds to construct or modify any facility in the United States to house detainees or to transfer Guantanamo detainees to the United States, except in the limited case of temporary medical transfers authorized by section 1034, until Congress approves a plan to close the facility. Sections 1033 and 1035 would impose more onerous restrictions than current law does on transfers abroad and would prohibit certain categories of transfers entirely. These provisions undermine our national security by limiting our ability to act as our military, diplomatic, and other national security professionals deem appropriate in a given case. Under existing law, the Secretary of Defense is already required to make a determination that actions have been or will be taken to substantially mitigate risks to the United States or U.S. persons or interests posed by detainee transfers abroad.
The President has objected to the inclusion of these and similar provisions in prior legislation. The restrictions contained in this bill are unwarranted and threaten to interfere with the Executive Branch’s ability to determine the appropriate disposition of detainees and its flexibility to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy. Sections 1032, 1033, and 1035 would, moreover, violate constitutional separation-of-powers principles under certain circumstances, and section 1035 could in some circumstances interfere with a detainee’s right to the writ of habeas corpus.
The Administration also strongly objects to the requirements in sections 1033(b)(2) and 1037, which would require the Secretary of Defense to provide Congress with diplomatic assurances regarding detainee transfers and reports containing such assurances. Across two administrations, the Executive Branch has consistently informed Congress and represented before U.S. courts that disclosing such diplomatic assurances from foreign governments would have a chilling effect on those countries’ willingness to cooperate on detainee transfers. The Administration objects finally to the additional reporting requirement in section 1036, which would require the Secretary of Defense to submit an unclassified report to Congress on past detainee assessments produced by the Joint Task Force-Guantanamo. The Administration does not believe this section, as drafted, is a productive measure and will treat this provision, along with sections 1033(b)(2) and 1037, consistent with the President’s constitutional authority in this area.
This debate follows on a similar back and forth last month related to the House’s proposed Defense Authorization bill. You can find the text of that bill here, the House Armed Services Committee reports on the bill here and here, and the statement of administration policy here.