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A rally And march against he ongoing detention of individuals and the systemic miscarriage of justice represented by the offshore U.S. prison in Guantanamo Bay, Cuba. (Photo: Stephen Melkisethian/flickr/cc)

The Bass-Ackwards Detainee Transfer Provision in the FY2016 NDAA

Steve Vladeck

 by Just Security

There’s a lot to say about the 1,915-page National Defense Authorization Act (NDAA) for Fiscal Year 2016 that was unveiled yesterday by the House and Senate Armed Services Committees–and much of it ain’t good. President Obama has already threatened a veto over the bill’s proposed utilization of emergency military funds as an accounting sleight-of-hand to sidestep the still-extant limits on defense spending in the Budget Control Act. But, as I explain in the post that follows, the NDAA’s revision to the existing Guantánamo transfer restrictions is perhaps even more veto-worthy, since the bill, if passed in its current form, would make it all-but impossible for the President to transfer any detainee who has been cleared for release (a necessary first step to any plan to close the facility). That is to say, and contra the rhetoric of, among others, Senator McCain, the transfer provisions don’t merely preserve the status quo; they actually make it much, much worse. Below the fold, I offer a quick overview of the relevant provision–and why it is so problematic. 

Although there’s a fair amount of new stuff in the Guantánamo sections (sections 1031-45), including a categorical ban on transfers to Libya, Somalia, Syria, or Yemen, the real meat of this package is new section 1034. Under that provision, a detainee may only be transferred to a foreign country (other than Libya, Somalia, Syria, or Yemen) if the Secretary of Defense makes a series of certifications to Congress no less than 30 days prior to the transfer. So far, that’s the same regime as the existing NDAAs. But the certifications themselves are far more onerous. Among other things, the Secretary must certify that:

  1. the transfer concerned is in the national security interests of the United States;
  2. the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo concerned is to be transferred—(A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization; (B) maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility; (C) has taken or agreed to take appropriate steps to substantially mitigate any risk the individual could attempt to reengage in terrorist activity or otherwise threaten the United States or its allies or interests; and (D) has agreed to share with the United States any information that is related to the individual;
  3. if the country to which the individual is to be transferred is a country to which the United States transferred an individual who was detained at United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, and such transferred individual subsequently engaged in any terrorist activity, the Secretary has—(A) considered such circumstances; and (B) determined that the actions to be taken as described in paragraph (2)(C) will
    substantially mitigate the risk of recidivism with regard to the individual to be transferred; and
  4. includes an intelligence assessment, in classified or unclassified form, of the capacity, willingness, and past practices (if applicable) of the foreign country or foreign entity concerned in relation to the certification of the Secretary under this subsection.

Note especially requirements (1) and (3)–the Secretary must certify that the transfer of a detainee promotes U.S. national security interests; and, if the transfer is to any country where any prior transferee subsequently engaged in any acts of terrorist recidivism (which, on Congress’s overbroad view of recidivism, is most of the countries we’d be talking about), the Secretary must also personally vouch for the “actions to be taken” in that individual detainee’s case (by the transferee country) to prevent the detainee from doing the same. Moreover, the Secretary must also certify that he has obtained the consent of the country to which the detainee is being transferred to “share with the United States any information that is related to the individual.” In essence, the Secretary must swear to Congress that he has obtained a whole bunch of promises and concessions from any country willing to take any of the detainees–promises and concessions that may very well not be forthcoming.

This may seem hypertechnical, but consider the stark and dramatic contrast between these requirements (which must be met in all cases), and the currently-in-place requirements of section 1035 of the FY2014 NDAA (last year’s NDAA simply changed “2014” in the 2014 provisions to “2015”). The existing rules differentiate between two classes of cases: For detainees who no longer present a threat to the United States, and those who have prevailed in habeas petitions (an empty set among current detainees), the existing regime requires no additional certifications whatsoever. All it requires is notice and the Secretary’s certification of his (or the PRB’s) no-threat determination. (PRBs determine whether the detainee’s continuing confinement is “necessary to protect against a significant threat to the security of the United States.” Presumably, answering that question in the negative goes a long way toward determining that the detainee no longer poses a threat.)

But even for those detainees for whom no such determination has been made, the existing rules only require the Secretary to certify that the transfer is in the national security interests of the United States, and that “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.” In other words, even for uncleared detainees, the existing certification requirements pale in comparison to those in the FY2016 NDAA. And for detainees who could have received no-threat determinations under the FY2014 language, the difference is night and day.

Section 1035’s far-more-onerous certification requirements in both sets of cases are especially problematic given the current breakdown of the Guantánamo population: Of the 114 men still in custody, 53 have been cleared for transfer–and would therefore arguably have been eligible for the streamlined certification rules of the FY2014 NDAA. But even if they weren’t, only eight detainees have been transferred thus far in 2015, after 33 were transferred last year. Given that track record under the old transfer provision, it is no exaggeration to speculate that section 1035 of the FY2016 NDAA, if enacted in its current form, will make it virtually impossible to transfer most–if not all–of these 53 detainees going forward (a number that may only grow as the PRBs hear more cases), to say nothing of detainees who have not been cleared by the Secretary of Defense or a PRB.

Reasonable people can surely disagree about the best solution for those detainees who have not been cleared for release from Guantánamo–including whether they should be moved into the United States, transferred to some form of civilian administrative detention, or left at Guantánamo until the “war” is over. But I hope we can all have common cause that, for those detainees who have been cleared, all Congress would accomplish by making it that much harder for the Executive Branch to effectuate their release is to take that much more ownership of President Obama’s failure to close Guantánamo–and to do so for no other reason than politics. If President Obama really is serious about closing Guantánamo, perhaps section 1035 is another reason why he should veto the NDAA.

© 2021 Just Security

Steve Vladeck

Steve Vladeck is a professor of law at American University Washington College of Law and co-editor-in-chief of Just Security. Follow him on Twitter: @steve_vladeck

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