Progress on the 2014 NDAA — A Guantanamo Victory

Congress has now released its compromise version of the 2014 National Defense Authorization Act reconciling the House and Senate bills into a revised version that is slated to go to the floor of the House by the end of the week.  The legislation includes important provisions on Guantanamo — an issue that Marty, Daphne, and I have discussed here, here, and here.

Importantly, the legislation retains, albeit with some modifications, the Senate provision (Sec. 1035 of the compromise bill) that removes some of the most onerous restrictions on transferring detainees from Guantanamo to foreign countries.   It rescinds, however, the Senate provisions that would have allowed transfers to the United States for trial, medical treatment, or continued detention — reinstating the now longstanding absolute bar on transferring Guantanamo detainees to the United States for any reason (Sec. 1034).  As I explain below the fold, the legislation is nonetheless a substantial improvement over current law — and something to be celebrated if and when it becomes law, hopefully by the end of next week.

Importantly, the legislation paves the way to begin transferring out the 80-some detainees that have long been cleared for transfer yet languish in Guantanamo.  Specifically, it authorizes the Secretary of Defense to transfer to another country those detainees found to be “no longer a threat” by the Periodic Review Boards (which were prescribed by President Obama in March 2011 and  initiated just a few months ago).  It allows additional transfers to foreign countries if the Secretary determines that doing so is “in the national security interest of the United States,” among other things.   Critically, conditions that previously served as absolute bars to transfer now operate as factors that need to be taken into account.  A House provision that would have added an absolute bar on transfers to Yemen was likewise rejected; such a prohibition would have crippled the administration’s closure efforts, given that approximately half of the now 162-Guantanamo detainees hail from Yemen.  The bill that has emerged not only restores (at least somewhat) much-needed flexibility to the Executive Branch, but it also facilitates the ability of the President and his newly appointed Guantanamo envoys to begin moving detainees out.

There is a slight hitch in connection with the provision authorizing transfer after clearance by a Periodic Review Board, but one that can easily be dealt with.  Specifically, the Executive Order establishing the Periodic Review Boards did not authorize a re-review of the detainees already cleared for transfer by the earlier Guantanamo Review Task Force; such review was deemed redundant and therefore unnecessary.   But under the legislation, such review takes on new importance.   Whereas a Periodic Review Board finding of “no longer a threat” serves as a sufficient condition for transfer,  prior clearance by the Guantanamo Review Task Force is just one of a many factors the Secretary of Defense must consider in makinadditional transfer decisions.  Assuming, however, that the administration is as serious about winnowing down the Guantanamo population as it claims to be, this is eminently fixable: The President can simply amend the Executive Order so as to allow the Periodic Review Boards to also consider the group of detainees previously cleared for transfer — something the review boards ought to be able to do with dispatch in light of the earlier Task Force process and findings.

It is, of course, disappointing that the Senate provisions that would have permitted limited transfers of Guantanamo detainees to the United States did not survive.   Refusing to even allow detainees to come to the United States to receive needed medical treatment seems particularly cruel.   But it is unlikely that the administration would have been able to take significant advantage of the additional provision allowing transfers for trial and detention, at least in the short-term.  Just three years ago, the administration backed away from its plans to try Khalid Sheikh Mohammed and the other masterminds of 9/11 in federal court after intense opposition.  Even if the administration were now willing to stand up to the likely political opposition,  it is not clear how many additional cases, if any, could be prosecuted in Article III courts.

To be sure, the transfer restriction also precludes military commission trials from being moved to the homeland or other detainees being transferred to face long-term law-of-war detention on U.S. soil (in what would no doubt be facilities akin to Supermax prisons).  This will no doubt be disappointing to the Administration, and make it much harder to close Guantanamo in the short-term.  But as I have argued elsewhere, such a “solution” to the Guantanamo problem might actually make things worse.

Two other interesting aspects of the legislation are worth noting: Section 1038 requires the Secretaries of Defense and State to provide the defense and foreign affairs committee a report on the capacity of the Yemeni government to appropriately handle repatriated Guantanamo detainees; and Section 1039 requires the Attorney General, in consultation with the Secretary of Defense to provide the judiciary committees a report on the legal rights that detainees might acquire upon transfer to the United States and an assessment of what legislation or other steps can be taken to “address” (i.e., deny) such rights from accruing.  (This second provision suggests some potential interest in lifting the transfer restrictions to the United States, so long as Congress can be assured that the detainees will not be subsequently be granted any sort of immigration benefits or otherwise accrue too many rights.)  Both reports are due 120 days after the bill becomes law, and are worth watching for — or at least inquiring about, in the event they are not made public. 

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Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).