Senate Armed Services Committee unveils their NDAA, including detention provisions

One of the undemocratic – or at least, untransparent – things about how Congress shapes American national security law is that the armed services and intelligence oversight committees craft their annual authorization bills behind closed doors, sending them to the floor as a fait accompli. (Another is that these bills contain extensive classified annexes, as Dakota Rudesill, a former ODNI official and national-security congressional staffer who is now at Ohio State wrote in a recent academic paper, “Coming to terms with Secret Law,” summarized in this Lawfare post yesterday.)

The Senate Armed Services Committee has now finally unveiled the version of the National Defense Authorization Act for 2017 that it marked up last week. (The House passed its version earlier this week; after the full Senate passes its version, it will go to conference.) Here are the Guantanamo and Islamic State related provisions in the Senate bill – first the index, then the text.

Index

TITLE X—GENERAL PROVISIONS

Sec. 1021. Extension of prohibition on use of funds for transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, to the United States.
Sec. 1022. Extension of 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.
Sec. 1023. Designing and planning related to construction of certain facilities in the United States.
Sec. 1024. Authority to transfer individuals detained at United States Naval Station, Guantanamo Bay, Cuba, to the United States temporarily for emergency or critical medical treatment.
Sec. 1025. Authority for article III judges to take certain actions relating to individuals detained at United States Naval Station, Guantanamo Bay, Cuba.
Sec. 1026. Extension of prohibition on use of funds for transfer or release to certain countries of individuals detained at United States Naval Station, Guantanamo Bay, Cuba.
Sec. 1027. Matters on memorandum of understanding between the United States and governments of receiving foreign countries and entities in certifications on transfer of detainees at United States Naval Station, Guantanamo Bay, Cuba.
Sec. 1028. Limitation on transfer of detainees at United States Naval Station, Guantanamo Bay, Cuba, pending a report on their terrorist actions and affiliations.
Sec. 1029. Prohibition on use of funds for transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, to countries covered by Department of State travel warnings.
Sec. 1030. Extension of prohibition on use of funds for realignment of forces at or closure of United States Naval Station, Guantanamo Bay, Cuba.

***

TITLE XII—MATTERS RELATING TO FOREIGN NATIONS

Sec. 1221. Extension and modification of authority to provide assistance to the vetted Syrian opposition.
Sec. 1222. Extension of authority to provide assistance to counter the Islamic State of Iraq and the Levant.
Sec. 1223. Extension of authority to support operations and activities of the Office of Security Cooperation in Iraq.

***

Text

Subtitle D—Counterterrorism

SEC. 1021. EXTENSION OF PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO THE UNITED STATES.

SEC. 1022. EXTENSION OF 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.

SEC. 1023. DESIGNING AND PLANNING RELATED TO CONSTRUCTION OF CERTAIN FACILITIES IN THE UNITED STATES.

(a) Designing And Planning Authorized.—Notwithstanding any provision of law limiting the use of funds for the construction or modification of facilities in the United States or its territories or possessions to house individuals detained at Guantanamo, the Secretary of Defense may use amounts authorized to be appropriated or otherwise made available for the Department of Defense for designing and planning related to the construction or modification of such facilities

(b) Individual Detained At Guantanamo Defined.—In this section, the term “individual detained at Guantanamo” means an individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—

(1) is not a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)) 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 detained at United States Naval Station, Guantanamo Bay.

SEC. 1024. AUTHORITY TO TRANSFER INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO THE UNITED STATES TEMPORARILY FOR EMERGENCY OR CRITICAL MEDICAL TREATMENT.

(a) Temporary Transfer For Medical Treatment.—Notwithstanding section 1031 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 968), or any similar provision of law enacted after September 30, 2015, the Secretary of Defense may, after consultation with the Secretary of Homeland Security, temporarily transfer an 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 of Defense determines that—

(1) the medical treatment of the individual is necessary to prevent death or imminent significant injury or harm to the health of the individual;

(2) the necessary 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 section.

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

(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 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; 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, pursuant to the Authorization for Use of Military Force (Public Law 107–40), as determined in accordance with applicable law and regulations.

(e) No Cause Of Action.—Any decision to transfer or not to transfer an individual made under the authority in subsection (a) shall not give rise to any claim or cause of action.

(f) Limitation On Judicial Review.—

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

(2) EXCEPTION FOR HABEAS CORPUS.—The United States District Court for the District of Columbia shall have exclusive jurisdiction to consider an application for writ of habeas corpus seeking release from custody filed by or on behalf of an individual who is in the United States pursuant to a temporary transfer under the authority in subsection (a). Such jurisdiction shall be limited to that required by the Constitution, and relief shall be only as provided in paragraph (3). In such a proceeding the court may not review, halt, or stay the return of the individual who is the object of the application to United States Naval Station, Guantanamo Bay, Cuba, pursuant to subsection (c).

(3) RELIEF.—A court order in a proceeding covered by paragraph (2)—

(A) may not order the release of the individual within the United States; and

(B) shall be limited to an order of release from custody which, when final, the Secretary of Defense shall implement in accordance with section 1034 of the National Defense Authorization Act for Fiscal Year 2016.

(g) Notification.—Whenever a temporary transfer of an individual detained at Guantanamo is made under the authority of subsection (a), the Secretary of Defense shall notify the Committees on Armed Services of the Senate and the House of Representatives of the transfer not later than five days after the date on which the transfer is made.

(h) Individual Detained At Guantanamo Defined.—In this section, the term “individual detained at Guantanamo” means an individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—

(1) is not a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)) 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 detained at United States Naval Station, Guantanamo Bay.

(i) Applicability.—This section shall apply to an individual temporarily transferred under the authority in subsection (a) regardless of the status of any pending or completed proceeding or detention on the date of the enactment of this Act.

SEC. 1025. AUTHORITY FOR ARTICLE III JUDGES TO TAKE CERTAIN ACTIONS RELATING TO INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) Use Of Video Teleconferencing.—A judge of a United States District Court shall have jurisdiction to take any of the following actions by video teleconferencing with respect to an individual detained at Guantanamo:

(1) Arraign the individual for a charge under the laws of the United States.

(2) Accept a plea to a charge under the laws of the United States.

(3) Enter a judgment of conviction and sentence the individual for a charge upon which the individual is convicted as a result of such a plea.

An action specified in paragraph (1), (2), or (3) may be taken by video teleconferencing only with the consent of the individual.

(b) Venue.—A judge of a United States District Court may act by video teleconferencing under subsection (a) only where such District Court maintains venue concerning the offense alleged.

(c) Transfer To Serve Sentence Of Imprisonment.—The Attorney General may transfer to a foreign country an offender who is convicted of an offense by reason of a plea entered into as described in subsection (a) and who is under a sentence of imprisonment resulting from such conviction. Any such transfer shall be made for the purpose of the offender serving the sentence imposed on him, and shall be made underchapter 306 of title 18, United States Code, without regard to the provisions of section 4107 and subsections (a) and (b) of section 4100 of that title.

(d) Definitions.—In this section:

(1) 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 national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)) 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.

(2) The terms “imprisonment”, “offender”, “sentence”, and “transfer” have the meanings given those terms in section 4101 of title 18, United States Code.

SEC. 1026. EXTENSION OF PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO CERTAIN COUNTRIES OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

SEC. 1027. MATTERS ON MEMORANDUM OF UNDERSTANDING BETWEEN THE UNITED STATES AND GOVERNMENTS OF RECEIVING FOREIGN COUNTRIES AND ENTITIES IN CERTIFICATIONS ON TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(1) by redesignating paragraphs (4) and (5) as paragraphs (5) and (6), respectively; and

(2) by inserting after paragraph (3) the following new paragraph (4):

“(4) both—

“(A) the United States Government, on the one hand, and the government of the foreign country or the recognized leadership of the foreign entity, on the other hand, have entered into a written memorandum of understanding (MOU) regarding the transfer of the individual; and

“(B) the memorandum of understanding—

“(i) has been transmitted to the appropriate committees of Congress, in classified form (if necessary); and

“(ii) includes an assessment, whether in classified or unclassified form, of the capacity, willingness, and past practices (if applicable) of the foreign country or foreign entity, as the case may be, with respect to the matters certified by the Secretary pursuant to paragraphs (2) and (3);”.

SEC. 1028. LIMITATION ON TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, PENDING A REPORT ON THEIR TERRORIST ACTIONS AND AFFILIATIONS.

(a) Limitation.—No amounts authorized to be appropriated or otherwise made available for fiscal year 2017 for the Department of Defense may be used to transfer, release, or assist in the transfer or release to any foreign government or foreign entity of an individual detained at Guantanamo until the Secretary of Defense submits to the appropriate committees of Congress a report on the individual that includes the following:

(1) A description of the individual’s previous terrorist activities.

(2) A description of the individual’s previous memberships in or affiliations or associations with terrorist organizations.

(3) A description of the individual’s support for or participation in attacks against the United States or United States allies.

(b) Form.—Each report under subsection (a) shall be submitted in unclassified form, and may not include a classified annex as a means of conveying any information of material significance to such report.

(c) Construction With Other Prohibitions And Limitations.—The limitation in subsection (a) is in addition to any prohibition or other limitation on the transfer or release of individuals detained at Guantanamo under any other provision of law, including the provisions of subtitle D of title X of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 968).

(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” 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. 1029. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO COUNTRIES COVERED BY DEPARTMENT OF STATE TRAVEL WARNINGS.

(a) Finding.—The Senate makes the following findings:

(1) The Department of State issues travel warnings regarding travel to foreign countries for reasons that include “unstable government, civil war, ongoing intense crime or violence, or frequent terrorist attacks”.

(2) These travel warnings are issued to highlight the “risks of traveling” to particular countries and are left in place until the situation in the country concerned improves.

(b) Sense Of Senate.—It is the sense of the Senate that—

(1) countries that pose such a significant travel threat to United States citizens that the Department of State feels obliged to issue a travel warning should not be considered an appropriate recipient of any detainee transferred from United States Naval Station, Guantanamo Bay, Cuba; and

(2) if a country is subject to a Department of State travel warning, it is highly unlikely that the government of the country can provide the United States Government appropriate security and assurances regarding the prevention of the recidivism of any detainee so transferred.

(c) Prohibition.—

(1) IN GENERAL.—Except as provided in paragraphs and (2) and (3), no amounts authorized to be appropriated by this Act or otherwise available for the Department of Defense may be used, during the period beginning on the date of the enactment of this Act and ending on December 31, 2017, 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 to the custody or control of any country subject to a Department of State travel warning at the time the transfer or release would otherwise occur.

(2) EXCEPTION FOR CERTAIN WARNINGS.—Paragraph (1) shall not apply with respect to any country subject to a travel warning described in that paragraph that is issued solely on the basis of one or more of the following:

(A) Medical deficiencies, infectious disease outbreaks, or other health-related concerns.

(B) A natural disaster.

(C) Criminal activity.

(3) EXCEPTION FOR CERTAIN COUNTRY.—Paragraph (1) shall not apply with respect to the Kingdom of Saudi Arabia.

SEC. 1030. EXTENSION OF PROHIBITION ON USE OF FUNDS FOR REALIGNMENT OF FORCES AT OR CLOSURE OF UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

***

SEC. 1221. EXTENSION AND MODIFICATION OF AUTHORITY TO PROVIDE ASSISTANCE TO THE VETTED SYRIAN OPPOSITION.

(a) Notice On New Initiatives.—

(1) IN GENERAL.—Subsection (f) of section 1209 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291; 128 Stat. 3541), as amended by section 1225(e) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 1055), is further amended to read as follows:

“(f) Notice To Congress Before Initiation Of New Initiatives.—Not later than 30 days before initiating a new initiative under subsection (a), the Secretary of Defense shall submit to the appropriate congressional committees a notice setting forth the following:

“(1) The initiative to be carried out, including a detailed description of the assistance provided.

“(2) The budget, implementation timeline and anticipated delivery schedule for the assistance to which the initiative relates, the military department responsible for management and the associated program executive office, and the completion date for the initiative.

“(3) The amount, source, and planned expenditure of funds to carry out the initiative.

“(4) Any financial or other support for the initiation provided by foreign governments.

“(5) Any other information with respect to the initiative that the Secretary considers appropriate.”.

(2) EFFECTIVE DATE.—The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act, and shall apply with respect to new initiatives initiated under section 1209 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 on or after the date that is 30 days after the date of the enactment of this Act.

(b) Extension Of Authority.—Subsection (a) of such section is amended by striking “December 31, 2016” and inserting “December 31, 2019”.

SEC. 1222. EXTENSION OF AUTHORITY TO PROVIDE ASSISTANCE TO COUNTER THE ISLAMIC STATE OF IRAQ AND THE LEVANT.

(a) In General.—Section 1236(a) of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291; 128 Stat. 3559) is amended by striking “December 31, 2016” and inserting “December 31, 2019”.

(b) Additional Assessment On Certain Actions By Government Of Iraq.—Subsection (l)(1)(A) of such section, as added by section 1223(e) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92. 129 Stat. 1050), is amended by striking “120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2016” and inserting “each of March 25, 2016, and the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2017”.

SEC. 1223. EXTENSION OF AUTHORITY TO SUPPORT OPERATIONS AND ACTIVITIES OF THE OFFICE OF SECURITY COOPERATION IN IRAQ.

(a) Extension.—Subsection (f)(1) of section 1215 of the National Defense Authorization Act for Fiscal Year 2012 (10 U.S.C. 113 note) is amended by striking “fiscal year 2016” and inserting “fiscal year 2017”.

(b) Amount Available.—Such section is further amended—

(1) in subsection (c), by striking “fiscal year 2016” and all that follows and inserting “fiscal year 2017 may not exceed $60,000,000”; and

(2) in subsection (d), by striking “fiscal year 2016” and inserting “fiscal year 2017”.