Heartening News from the Senate — Sections 1031-1033 of the SASC NDAA Survive

The Senate has rejected the Ayotte Amendment by a 55-43 vote.  Senators Donnelly, Hagan and Pryor were the only Democrats in favor; Senators Flake, McCain and Paul were the Republicans who voted against.

Therefore, as Jen Daskal explained, it appears that the Senate version of the NDAA will go to the Senate/House conference with Sections 1031-1033 intact.  (Text below.)  This vote was absolutely critical to any effort to close the detention facility at GTMO in the near future.
SEC. 1031. TRANSFERS TO FOREIGN COUNTRIES OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) Authority To Transfer Under Certain Circumstances- The Secretary of Defense is authorized to transfer or release any individual detained at Guantanamo to the individual’s country of origin, or any other foreign country, if–

      (1) the Secretary 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 No. 13567, that the individual is no longer a threat to the national security of the United States;
      (2) such transfer or release outside the United States is to effectuate an order affecting disposition of the individual by a court or competent tribunal of the United States having jurisdiction; or
      (3) such individual has been tried in a court or competent tribunal of the United States having jurisdiction on charges based on the same conduct that serves as the basis for the determination that the individual is an enemy combatant and–
        (A) has been acquitted of such charges; or
        (B) has been convicted and has completed serving the sentence pursuant to the conviction.
    (b) Determination Required Prior to Transfer- Except as provided in subsection (a), the Secretary of Defense may transfer an individual detained at Guantanamo to the custody or control of the individual’s country origin, or any other foreign country, only if the Secretary determines that–
      (1) actions that have been or are planned to be taken will 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 persons or interests; and
      (2) the transfer is in the national security interest of the United States.
    (c) Factors To Be Considered in Making Determination- In making the determination specified in subsection (b), the Secretary of Defense shall take into consideration the following factors:
      (1) The recommendations of the Guantanamo Detainee Review Task Force established pursuant to Executive Order No. 13492 and the recommendations of the Periodic Review Boards established pursuant to No. Executive Order 13567, as applicable.
      (2) Any confirmed case in which an individual transferred to the foreign country to which the individual is to be transferred subsequently engaged in terrorist or other other hostile activity that threatened the United States or United States persons or interests.
      (3) Any actions taken by the United States or the foreign country to which the individual is to be transferred, or change in circumstances in such country, that reduce the risk of recidivism of the type described in paragraph (2).
      (4) Any assurances provided by the government of the foreign country to which the individual is to be transferred, including that–
        (A) such government maintains control over any facility at which the individual is to be detained if the individual is to be housed in a government-controlled facility; and
        (B) such government has taken or agreed to take actions to substantially mitigate the risk of the individual engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States persons or interests.
      (5) An assessment of the capacity, willingness, and past practices (if applicable) of the foreign country described in paragraph (4) in meeting any assurances it has provided, including assurances under paragraph (4) regarding its capacity and willingness to mitigate the risk of recidivism.
      (6) Any record of cooperation by the individual to be transferred with United States intelligence and law enforcement authorities, pursuant to a pre-trial agreement, while in the custody of or under the effective control of the Department of Defense, and any agreements and effective mechanisms that may be in place, to the extent relevant and necessary, to provide continued cooperation with United States intelligence and law enforcement authorities.
    (d) Notification- The Secretary of Defense shall notify the appropriate committees of Congress of a determination of the Secretary under subsection (a) or (b) not later than 30 days before the transfer or release of the individual under such subsection. Each notification shall include, at a minimum, the following:
      (1) A detailed statement of the basis for the transfer or release.
      (2) An explanation of why the transfer or release is in the national security interests of the United States.
      (3) A description of any actions to be taken to mitigate the risks of recidivism by the individual to be transferred or released.
    (e) 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.
    (f) Repeal of Superseded Authorities- The following provisions of law are repealed:
      (1) Section 1033 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383; 124 Stat. 4351).
      (2) Section 1028 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81; 125 Stat. 1567; 10 U.S.C. 801 note).
      (3) Section 1028 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239; 126 Stat. 1914; 10 U.S.C. 801 note).

SEC. 1032. 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 Medical Treatment Authorized- Notwithstanding section 1031(a), or any similar provision of law enacted after September 30, 2013, 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) 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.
    (c) Conditions of Transfer- An individual who is temporarily transferred under the authority in subsection (a) shall–
      (1) 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.
    (d) 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 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));
      (2) shall not be permitted to apply for asylum under section 208 of the Immigration and Nationality Act (8 U.S.C. 1158), be placed in removal proceedings under section 240 of such Act (8 U.S.C. 1229a), or be eligible to apply for admission into the United States; and
      (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.
    (e) Judicial Review Precluded- A decision not to grant a temporary transfer under subsection (a), or not to recommend the granting of such a transfer, shall not give rise to a judicial cause of action.
    (f) Notification- The Secretary of Defense shall notify the Committees on Armed Services of the Senate and the House of Representatives of any temporary transfer of an individual under the authority in subsection (a) not later than 5 days after the transfer of the individual under that authority.
    (g) Individual Detained at Guantanamo Defined- In this section, the term `individual detained at Guantanamo’ has the meaning given that term in section 1031(e)(2).

SEC. 1033. 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 2014 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 and trial 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 the 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 actions the Secretary determines have been taken, or will be taken, to address any risk to public safety that could arise in connection with the detention and trial in the United States.
    (d) Appropriate Committees of Congress Defined- In this section, the term `appropriate committees 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.

 

Filed under:
About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).