The text of the Senate Intelligence Committee’s version of the 2017 intelligence authorization bill has finally been made public. The panel is chaired by Senator Richard Burr, Republican of North Carolina.
The bill has been getting some attention because, as first reported by Jenna McLaughlin of The Intercept, it has a provision that would expand (or, depending on your point of view, restore) the scope of Internet metadata records that the FBI can get via a national security letter to include “electronic communications transactional records.” This reprises a similar push the FBI made in 2010, which failed. That’s Section 803.
But there’s another national security legal policy tweak in it related to Guantanamo that hasn’t been scrutinized. It would create an additional bureaucratic hurdle to transferring Gitmo detainees by requiring the Director of National Intelligence to certify to Congress that a monitoring system is in place sufficient to mitigate any risk of recidivism. That’s Section 702.
Under the current statutory transfer restrictions, the Secretary of Defense must already certify to Congress that the risk of recidivism has been sufficiently mitigated, 30 days before any transfer. That procedure has significantly slowed transfers that had cleared the interagency review process but languished on the desk of Chuck Hagel and, to a lesser extent, Ash Carter. So effectively this would create a second chokepoint, giving the head of the intelligence community a veto or pocket veto, too.
702. LIMITATION ON TRANSFER OF DETAINEES TO FOREIGN COUNTRIES.
(a) COMPLIANCE REQUIRED —
(1) IN GENERAL,– An individual detained at Guantanamo may not he transferred or released to a foreign country until after the date that the Director of National Intelligence certifies that an intelligence driven threat monitoring system has been established and is sufficient to mitigate the risk of such individuals reengaging in terrorist activity or posing a threat to United States persons or national security, and that the intelligence community has the capability to monitor all such individuals by appropriate means to provide assessments on the activity of such individuals, as required.
(2) CONSTRUCTION.–Requirement in paragraph (1) in connection with the transfer or release of an individual detained at Guantanamo is in addition to any other requirement applicable to the transfer or release of the individual in law.