The National Defense Authorization Act
for FY2012 and Beyond: Detainee Matters
Jennifer K. Elsea
Legislative Attorney
Michael John Garcia
Legislative Attorney
December 11, 2012August 27, 2013
Congressional Research Service
7-5700
www.crs.gov
R42143
CRS Report for Congress
Prepared for Members and Committees of Congress
The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters
Summary
The National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 112-81) contains a
subtitle addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba,
and more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda
and associated forces. Much of the debate surrounding passage of the act centered on what
appears to be an effort to confirm or, as some observers view it, expand the detention authority
that Congress implicitly granted the President via the Authorization for Use of Military Force
(AUMF; P.L. 107-40) in the aftermath of the terrorist attacks of September 11, 2001.
The 2012 NDAA authorizes the detention of certain categories of persons and requires the
military detention of a subset of them (subject to waiver by the President); regulates status
determinations for persons held pursuant to the AUMF, regardless of location; regulates periodic
review proceedings
concerning the continued detention of Guantanamo detainees; and continues
current funding
restrictions that relate to Guantanamo detainee transfers to foreign countries. The
act continues to
bar military funds from being used to transfer detainees from Guantanamo into
the United States
for trial or other purposes, although it does not directly bar criminal trials for
terrorism suspects
(similar transfer restrictions are found in appropriations enactments in effect
for FY2012).
During floor debate on S. 1867, 112th Congress, significant attention centered on the extent to
which the bill and
existing law permit the military detention of U.S. citizens believed to be enemy
belligerents,
especially if arrested within the United States. A single amendment was made to the detainee
detainee provisions (ultimately included in the final version of the act) to clarify that the bill’s affirmation
affirmation of detention authority under the AUMF is not intended to affect any existing
authorities relating
to the detention of U.S. citizens or lawful resident aliens, or any other persons
captured or
arrested in the United States. When signing the 2012 NDAA into law, President
Obama stated that
he would “not authorize the indefinite military detention without trial of
American citizens.”
While Congress deliberated over the competing House and Senate bills, the White House
expressed strong criticism of both bills’ detainee provisions, and threatened to veto any legislation
“that challenges or constrains the President’s critical authorities to collect intelligence,
incapacitate dangerous terrorists, and protect the Nation.” A few modifications were made during
conference to assuage some of the Administration’s concerns. President Obama ultimately lifted
the veto threat and signed the 2012 NDAA into law, though he issued a statement criticizing
many of the bill’s detainee provisions. Among other things, he declared that the mandatory
military detention provision would be implemented in a manner that would preserve a maximum
degree of flexibility, and that the Administration would not “adhere to a rigid across-the-board
requirement for military detention.” In February 2012, President Obama issued a directive to
implement this policy, including by exercising waiver authority to prevent the mandatory military
detention provision’s application in a broad range of circumstances.
This report offers a brief background of the salient issues raised by the detainee provisions of the
FY2012 NDAA, provides a section-by-section analysis, and discusses executive interpretation
and implementation of the act’s mandatory military detention provision. It also addresses detainee
provisions in the FY2013 national defense authorization bills, H.R. 4310 and S. 3254National Defense Authorization Act for FY2013, P.L. 112-239, as well as
detainee provisions in the National Defense Authorization Act for FY2014 (H.R. 1960, S. 1197).
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The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters
Contents
Background ...................................................................................................................................... 2
Scope of Detention Authority Conferred by the AUMF............................................................ 67
Status Determinations for Unprivileged Enemy Belligerents.................................................. 1011
“Recidivism” and Restrictions on Transfer ............................................................................. 1213
2012 NDAA: Summary and Analysis of Detainee Provisions ...................................................... 1516
Detention Authority ................................................................................................................. 1516
Mandatory Military Detention ................................................................................................. 1819
Periodic Review of Detention of Persons at Guantanamo ....................................................... 2324
Status Determination of Wartime Detainees ............................................................................ 25
Security Protocols for Guantanamo Detainees ........................................................................ 2627
Transfer or Release of Wartime Detainees into the United States ........................................... 27
Transfer or Release of Guantanamo Detainees to Foreign Countries...................................... 2829
Consultation Requirement Regarding Terrorism Trials ........................................................... 3132
Military Commissions Act Revision........................................................................................ 3233
General Counterterrorism Matters ........................................................................................... 3233
Developments Since the Enactment of the 2012 NDAA ............................................................... 3334
Presidential Policy Directive 14 .............................................................................................. 34
FY2013 NDAA Bills: Detainee Provisions ............................................................................. 37
H.R. 4310 ...................................35
FY2013 NDAA Detainee Provisions....................................................................................... 37
S. 3254................................38
FY2014 NDAA Detainee Provisions............................................................................................... 39 41
Contacts
Author Contact Information........................................................................................................... 4144
Congressional Research Service
The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters
A
s enacted, theT
he National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 11281) (2012 NDAA)112-81) arguably
constituted the most significant legislation informing wartime detention policy since the
2001 Authorization for the Use of Military Force (AUMF; P.L. 107-40), which serves as
the primary legal authority for U.S. operations against Al Qaeda and associated forces. The 2012
NDAA authorizes the detention of certain categories of persons and requires
the military
detention of a subset of them; regulates status determinations for persons
held pursuant to the Authorization for Use of Military Force (AUMF; P.L. 107-40),
regardless of location held pursuant to the
AUMF; regulates periodic review proceedings concerning the continued detention
of of
Guantanamo detainees; and continues currentcontinued funding restrictions that relate to Guantanamo
detainee detainee
transfers to foreign countries. The act continues to bar continued the bar on the use of Department of Defense
(DOD) funds to transfer detainees from Guantanamo into the United States for trial or other
purposes (a bar that Congress has extended through subsequent appropriations and defense
authorization enactments), and although it does not directly bar criminal trials for terrorism
suspects, it requires the
Attorney General to consult with the Defense Department and Director of
National Intelligence
prior to bringing charges or seeking an indictment in certain cases. The act
also contains (1) a
modified provision from the House bill that requires a report to Congress
detailing the “national
security protocol” pertaining to the communications of persons detained at
Guantanamo, (2) a
requirement for quarterly briefings on counterterrorism operations, and (3) a
requirement for the
President to issue national security guidelines for denying safe havens to Al
Qaeda and its
affiliates in countries that may be vulnerable. Further, the act makes some
modifications to the
Military Commissions Act (MCA).1
During congressional deliberations over the House and Senate bills, the White House criticized
each version’s detainee provisions, and threatened to veto any legislation “that challenges or
constrains the President’s critical authorities to collect intelligence, incapacitate dangerous
terrorists, and protect the Nation.”2 In particular, the Administration expressed strong opposition
to any provision mandating the military detention of certain categories of persons, limiting
executive discretion as to the appropriate forum to prosecute terrorist suspects, or constraining the
executive’s ability to transfer detainees from U.S. custody.
The version of the 2012 NDAA passed by Congress included a few modifications intended to
assuage some of the Administration’s concerns. The conference report dropped a House provision
that would have required military commissions for certain terrorism cases and modified the
House provision prohibiting the transfer of terrorism suspects to the United States for trial so that
it only applies to those held at Guantanamo and not to all suspects detained abroad. It modified
the Senate provision mandating the military detention of certain categories of persons (originally
subject to waiver by the Secretary of Defense) by adding a statement to that provision to confirm
that it does not affect “the existing criminal enforcement and national security authorities of the
Federal Bureau of Investigation or any other domestic law enforcement agency,” even with
respect to persons held in military custody. The conferees also transferred the waiver authority
from the Secretary of Defense to the President. The conference report retained language added
during Senate floor debate to clarify that the provision affirming the authority to detain persons
captured in the conflict with Al Qaeda does not modify any existing authorities relating to the
power to detain U.S. citizens or lawful resident aliens, or any other persons captured or arrested
in the United States.
1
Chapter 47a of Title 10, U.S. Code.
See Exec. Office of the Pres., Statement of Administration Policy on H.R. 1540 (May 24, 2011) (hereinafter “White
House Statement on H.R. 1540”), available at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/
saphr1540r_20110524.pdf; Exec. Office of the Pres., Statement of Administration Policy on S. 1867 (November 17,
2011) (hereinafter “White House Statement on S. 1867”), available at http://www.whitehouse.gov/sites/default/files/
omb/legislative/sap/112/saps1867s_20111117.pdf.
2
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The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters
power to detain U.S. citizens or lawful resident aliens, or any other persons captured or arrested
in the United States.
: Detainee Matters
The Obama Administration then lifted its veto threat,3 and President Obama signed the 2012
NDAA into law on December 31, 2011. Nonetheless, President Obama issued a signing statement
criticizing many of the act’s detainee provisions, in which he pledged to interpret certain
provisions in a manner that would preserve a maximum degree of flexibility and discretion in the
handling of captured terrorists.4 Among other things, he criticized the blanket bar on Guantanamo
detainee transfers into the United States and the restrictions imposed on detainee transfers to
foreign countries, arguing that some applications of these provisions might violate constitutional
separation of powers principles. President Obama also announced that he would “not authorize
the indefinite military detention without trial of American citizens,” regardless of whether such
detention might be legally permissible under the AUMF or the 2012 NDAA. He further declared
that his Administration would not “adhere to a rigid across-the-board requirement for military
detention,” and suggested that he would exercise the statutory waiver of the mandatory military
detention provision when he deemed it appropriate. On February 28, 2012, President Obama
issued a directive describing circumstances in which the 2012 NDAA’s mandatory military
detention requirement would be waived.5
This report offers a brief background of the salient issues and provides a section-by-section
analysis of the detainee provisions in the National Defense Authorization Act for FY2012. It also
discusses executive interpretation and implementation of the act’s mandatory military detention
provision. Finally, it addresses detainee provisions in the 2013 defense authorization bills passed
by each house, which have also drawn veto threats from the PresidentNational Defense Authorization Act for
FY2013 (2013 NDAA; P.L. 112-239), as well as detainee provisions in the National Defense
Authorization Act for FY2014 (H.R. 1960, S. 1197).
Background
At the heart of the consideration of the detainee provisions appears to have been an effort to
confirm or, as some observers view it, expand the detention authority Congress implicitly granted
the President in the aftermath of the terrorist attacks of September 11, 2001. In enacting the
Authorization for Use of Military Force (AUMF; P.L. 107-40), Congress authorized the President
to use all necessary and appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons, in order to prevent any
future acts of international terrorism against the United States by such nations, organizations
or persons.
Many persons captured during subsequent U.S operations in Afghanistan and elsewhere have
been placed in preventive detention to stop them from participating in hostilities or terrorist
3
See Charlie Savage, Obama Drops Veto Threat Over Military Authorization Bill After Revisions, N.Y. TIMES,
December 14, 2011, at A30, available at http://www.nytimes.com/2011/12/15/us/politics/obama-wont-veto-militaryauthorization-bill.html?_r=3.
4
White House, Office of the Press Secretary, Statement by the President on H.R. 1540, December 31, 2011 (hereinafter
“Presidential Signing Statement on 2012 NDAA”), available at http://www.whitehouse.gov/the-press-office/2011/12/
31/statement-president-hr-1540.
5
Presidential Policy Directive, Procedures Implementing Section 1022 of the National Defense Authorization Act for
Fiscal Year (FY) 2012, February 28, 2012 (hereinafter “Presidential Policy Directive on Section 1022”), available at
http://www.justice.gov/opa/documents/ppd-14.pdf.
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Many persons captured during subsequent U.S operations in Afghanistan and elsewhere have
been placed in preventive detention to stop them from participating in hostilities or terrorist
: Detainee Matters
activities. A few have been tried by military commission for crimes associated with those
hostilities,6 while many others have been tried for terrorism-related crimes in civilian court.
In the 2004 case of Hamdi v. Rumsfeld, a majority of the Supreme Court recognized that, as a
necessary incident to the AUMF, the President may detain enemy combatants captured while
fighting U.S. forces in Afghanistan (including U.S. citizens), and potentially hold such persons
for the duration of hostilities.7 The Hamdi decision left to lower courts the task of defining the
scope of detention authority conferred by the AUMF, including whether the authorization permits
the detention of members or supporters of Al Qaeda, the Taliban, or other groups who are
apprehended away from the Afghan zone of combat.
Most subsequent judicial activity concerning U.S. detention policy has occurred in the D.C.
Circuit, where courts have considered numerous habeas petitions by Guantanamo detainees
challenging the legality of their detention. Rulings by the U.S. Court of Appeals for the D.C.
Circuit have generally been favorable to the legal position advanced by the government regarding
the scope of its detention authority under the AUMF.8 It remains to be seen whether any of these
rulings will be reviewed by the Supreme Court and, if such review occurs, whether the Court will
endorse or reject the circuit court’s understanding of the AUMF and the scope of detention
authority it confers.
Prior to the 2012 NDAA, Congress did not pass any legislation to directly assist the courts in
defining the scope of detention authority granted by the AUMF. The D.C. Circuit has, however,
looked to other post-AUMF legislation concerning the jurisdiction of military commissions for
guidance as to the categories of persons who may be subject to military detention. In 2010, the
circuit court concluded that the government had authority under the AUMF to detain militarily
persons subject to the jurisdiction of military commissions established pursuant to the Military
Commissions Acts of 2006 and 2009 (MCA); namely, those who are “part of forces associated
with Al Qaeda or the Taliban,” along with “those who purposefully and materially support such
forces in hostilities against U.S. Coalition partners.”9
6
To date there have been six convictions by military commissions, four of which were procured by plea agreement. For
more information about ,
and one additional guilty plea has been entered. One conviction has been reversed on appeal, and another appeal is
scheduled for rehearing en banc at the U.S. Court of Appeals for the D.C. Circuit. The current status of military
commissions can be found at http://www.mc.mil/CASES/MilitaryCommissions.aspx. For more information about
military commissions, see CRS Report R40932, Comparison of Rights in Military Commission
Trials and Trials in
Federal Criminal Court, by Jennifer K. Elsea.
7
Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (O’Connor, J., plurality opinion); id. at 588-589 (Thomas, J.,
dissenting).For more information about relevant court decisions, see CRS Report R41156, Judicial Activity Concerning
Enemy Combatant Detainees: Major Court Rulings, by Jennifer K. Elsea and Michael John Garcia.
8
See CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by
Jennifer K. Elsea and Michael John Garcia.
9
Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) (quoting the Military Commissions Act of 2006, P.L. 109366, §3, and the Military Commissions Act of 2009, P.L. 111-84, Div A, §1802), cert. denied, 131 S. Ct. 1814 (2011).
The Military Commissions Act confers jurisdiction over alien enemy unprivileged belligerents, 10 U.S.C. §948C,
defining as an unprivileged belligerent a person who is not entitled to prisoner of war status under the Geneva
Conventions who
(A) has engaged in hostilities against the United States or its coalition partners;
(B) has purposefully and materially supported hostilities against the United States or its coalition
partners; or
(C) was a part of al Qaeda at the time of the alleged offense under [chapter 47a of Title 10, U.S.
Code].
10 U.S.C. §948A(7). Although the jurisdiction of military commissions extends only to non-citizens, the D.C. Circuit
would probably include U.S. citizens who meet the definition of enemy unprivileged belligerent in its interpretation of
the scope of detention authority under the AUMF, given that the Hamdi opinion already establishes detention authority
(continued...)
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Most of the persons detained under the authority of the AUMF are combatants picked up during
military operations in Afghanistan or arrested elsewhere abroad. Many of these individuals were
transported to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention in military custody,
although a few “high value” Guantanamo detainees were initially held at other locations by the
CIA for interrogation. The United States holdsheld a larger number of detainees at a facility in
Parwan,
Afghanistan, most of whom were captured in Afghanistan and are Afghan nationals.10
The United
States agreed to hand over control of the facility to the Afghan government, and
transfer all
Afghan detainees in its custody at Parwan to the Afghan authorities by September
2012,11 though
implementation of this agreement has reportedly been the subject ofwas delayed due to disagreement
between Afghan and U.S.
authorities, with Afghan officials reportedly claiming that the United
States continuescontinued to hold several dozen Afghan detainees.12 Neither the Guantanamo nor the
Parwan facility, however, appears to be considered a viable option for future captures that take
place outside of Afghanistan; the current practice in such cases seems to be ad hoc.13
In almost all instances, persons arrested in the United States who have been suspected of terrorist
activity on behalf of Al Qaeda or affiliated groups have not been placed in military detention
pursuant to the AUMF, but instead have been prosecuted in federal court for criminal activity.
There were two instances in which the Bush Administration transferred persons arrested in the
United States into military custody and designated them as “enemy combatants”—one a U.S.
citizen initially arrested by law enforcement authorities upon his return from Afghanistan, where
he had allegedly been part of Taliban forces, and the other an alien present in the United States on
a student visa who had never been to the Afghanistan zone of combat, but was alleged to have
been an Al Qaeda “sleeper agent” planning to engage in terrorist activities on behalf of the
(...continued)
several dozen Afghan detainees.12 The remaining Afghan prisoners were turned over to
Afghanistan in March 2013 after an agreement was reached whereby U.S. advisors are to remain
at the facility and Afghanistan agreed not to release prisoners the United States considers
particularly dangerous.13 Several dozen non-Afghan detainees remain in U.S. custody.14 Neither
the Guantanamo nor the Parwan facility appears to be considered a viable option for future
(...continued)
(C) was a part of al Qaeda at the time of the alleged offense under [chapter 47a of Title 10, U.S.
Code].
10 U.S.C. §948A(7). Although the jurisdiction of military commissions extends only to non-citizens, the D.C. Circuit
would probably include U.S. citizens who meet the definition of enemy unprivileged belligerent in its interpretation of
the scope of detention authority under the AUMF, given that the Hamdi opinion already establishes detention authority
with respect to U.S. citizens.
10
The Parwan detention facility took over detention operations previously conducted at the Bagram Theater Internment
Facility. See Lisa Daniel, Task Force Ensures Fair Detainee Treatment, Commander Says, American Forces Press
Service, August 6, 2010, available at http://www.defense.gov/News/NewsArticle.aspx?ID=103004. The detention
center had been slated to be turned over to Afghan authority by January, 2012, but rapid growth of the prisoner
population caused the transfer to be delayed. See Kevin Sieff, Afghan prison transfer delayed, WASH. POST, August 12,
2011, at http://www.washingtonpost.com/world/asia-pacific/afghan-prison-transfer-delayed/2011/08/12/
gIQApCGMBJ_story.html. A memorandum of understanding was entered with the Afghan government concerning the
handover of the facility in March 2012. The memorandum also contemplates U.S. forces maintaining continued control
of Parwan detainees during a six-month handover period, at which point all Afghan nationals in U.S. custody shall be
transferred to the control of Afghanistan. Memorandum of Understanding between the Islamic Republic of Afghanistan
and the United States of America on Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan, available
at http://www.lawfareblog.com/wp-content/uploads/2012/04/2012-03-09-Signed-MOU-on-Detentions-Transfer-2.pdf
[hereinafter “MOU on Parwan Transfer”]. A separate memorandum of understanding dealing with special operations in
Afghanistan provides for Afghan authorities to conduct the “temporary holding” of persons detained in connection with
special operations (night raids). Memorandum of Understanding between the Islamic Republic of Afghanistan and the
United States of America on Afghanization of Special Operations on Afghan Soil (April 8, 2012), available at
http://www.isaf.nato.int/images/20120408_01_memo.pdf. Afghan citizens detained by U.S. forces outside of special
operations are to be transferred to Afghan authorities or released, id. at para. 9.
11
MOU on Parwan Transfer, supra footnote 10, at para. 6.
12
Pamela Constable, Karzai Orders “Full Afghanization” of U.S.-run Bagram Prison, WASH. POST, Nov. 29, November 29,
2012, at
http://www.washingtonpost.com/world/karzai-orders-full-afghanization-of-us-run-bagram-prison/2012/11/19/
39da5080-326e-11e2-92f0-496af208bf23_story.html.
13
U.S. Congress, Senate Committee on Armed Services, Hearing to Consider the Nomination of Vice Admiral William
H. McRaven, USN, 112th Cong., 2nd sess., June 28, 2011, p. 43 [hereinafter “McRaven Testimony”], transcript
available at http://armed-services.senate.gov/Transcripts/2011/06%20June/11-59%20-%206-28-11.pdf. Admiral
McRaven indicated that captures outside a theater of operations like Iraq or Afghanistan are treated on a case-by-case
basisKaren DeYoung, Parwan prison to be turned to Afghans, removing obstacle to long-term security agreement, WASH.
POST, March 23, 2013, at http://articles.washingtonpost.com/2013-03-23/world/37958352_1_parwan-prison-afghanofficials-afghan-civilians.
14
Kevin Sieff, In Afghanistan, a second Guantanamo, WASH. POST, August 4, 2013, at
http://www.washingtonpost.com/world/in-afghanistan-a-second-guantanamo/2013/08/04/e33e8658-f53e-11e2-81fa8e83b3864c36_story.html?hpid=z1 (reporting that 67 non-Afghan detainees are held by U.S. authorities at the Parwan
facility).
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captures that take place outside of Afghanistan; the current practice in such cases seems to be ad
hoc.15
In almost all instances, persons arrested in the United States who have been suspected of terrorist
activity on behalf of Al Qaeda or affiliated groups have not been placed in military detention
pursuant to the AUMF, but instead have been prosecuted in federal court for criminal activity.
There were two instances in which the Bush Administration transferred persons arrested in the
United States into military custody and designated them as “enemy combatants”—one a U.S.
citizen initially arrested by law enforcement authorities upon his return from Afghanistan, where
he had allegedly been part of Taliban forces, and the other an alien present in the United States on
a student visa who had never been to the Afghanistan zone of combat, but was alleged to have
been an Al Qaeda “sleeper agent” planning to engage in terrorist activities on behalf of the
: Detainee Matters
organization within the United States. However, in both cases, the detainees were ultimately
transferred back to the custody of civil authorities and tried in federal court when it appeared that
the Supreme Court would hear their habeas petitions, leaving the legal validity of their prior
military detention uncertain.1416
Over the years, there has been considerable controversy over the appropriate mechanism for
dealing with suspected belligerents and terrorists who come into U.S. custody. Some have argued
that all suspected terrorists (or at least those believed to be affiliated with Al Qaeda) should be
held in military custody and tried for any crimes they have committed before a military
commission. Others have argued that such persons should be transferred to civilian law
enforcement authorities and tried for any criminal offenses before an Article III court. Still others
argue that neither a military nor traditional law enforcement model should serve as the exclusive
method for handling suspected terrorists and belligerents who come into U.S. custody. They urge
that such decisions are best left to executive discretion for a decision based on the distinct facts of
each case.
Disagreement over the appropriate model to employ has become a regular occurrence in highprofile cases involving suspected terrorists. In part as a response to the Obama Administration’s
plans to transfer certain Guantanamo detainees, including Khalid Sheik Mohammed, into the
United States to face charges in an Article III court for their alleged role in the 9/11 attacks,
Congress passed funding restrictions that effectively barred the transfer of any Guantanamo
detainee into the United States for the 2011 fiscal year, even for purposes of criminal
prosecution.1517 The Consolidated and Further Continuing Appropriations Act, 2012 (2012
Minibus; P.L. 112-55), and the Consolidated Appropriations Act, 2012 (2012 CAA; P.L. 112-74),
15
U.S. Congress, Senate Committee on Armed Services, Hearing to Consider the Nomination of Vice Admiral William
H. McRaven, USN, 112th Cong., 2nd sess., June 28, 2011, p. 43 [hereinafter “McRaven Testimony”], transcript
available at http://armed-services.senate.gov/Transcripts/2011/06%20June/11-59%20-%206-28-11.pdf. Admiral
McRaven indicated that captures outside a theater of operations like Iraq or Afghanistan are treated on a case-by-case
basis.
16
and the Consolidated Appropriations Act, 2012 (2012 CAA; P.L. 112-74)
extended this prohibition through the entirety of FY2012.16 The restrictions were effectively
extended again until March 27, 2013, by the Continuing Appropriations Resolution, 2013 (2013
CAR; P.L. 112-175). The blanket restriction on transfers into the United States effectively makes
trial by military commission the only viable option for prosecuting Guantanamo detainees for the
foreseeable future, as no civilian court operates at Guantanamo.
Considerable attention has also been drawn to other instances when terrorist suspects have been
apprehended by U.S. military or civilian law enforcement authorities. On July 5, 2011, Somali
national Ahmed Abdulkadir Warsame was brought to the United States to face terrorism-related
14
al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (per curiam), cert. granted by 555 U.S. 1066 (2008), vacated and
remanded for dismissal on mootness grounds by al-Marri v. Spagone, 555 U.S. 1220 (2009); Padilla v. Hanft, 423 F.3d
386 (4th Cir. 2005). See also CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major
Court Rulings, by Jennifer K. Elsea and Michael John Garcia (discussing al-Marri and Padilla litigation); CRS Report
R42337, Detention of U.S. Persons as Enemy Belligerents, by Jennifer K. Elsea.
1517
Ike Skelton National Defense Authorization Act for FY2011 (2011 NDAA), P.L. 111-383, §1032 (applying to
military funds); Department of Defense and Full-Year Continuing Appropriations Act, 2011 (2011 CAA), P.L. 112-10,
§1112 (applying to any funds appropriated by the 2011 CAA or any prior act). For further background, see CRS Report
R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress, by Michael John Garcia.
16
The Consolidated and Further Continuing Appropriations Act, 2012 (2012 Minibus), P.L. 112-55, §532 (providing
that “[n]one of the funds appropriated or otherwise made available in this or any other Act may be used to transfer,
release, or assist in the transfer or release to or within the United States, its territories, or possessions” any detainee held
at Guantanamo); Consolidated Appropriations Act, 2012 (2012 CAA), P.L. 112-74, Div. A, §8119, Div. H, §511
(similar). In appropriations legislation, the phrase “or any other act” is typically interpreted as applying to any
appropriation for the same fiscal year as the act in question. GOVERNMENT ACCOUNTABILITY OFFICE, OFFICE OF
GENERAL COUNSEL, I PRINCIPLES OF APPROPRIATIONS LAW 2-36 (3d ed. 2004) (citing Williams v. United States, 240
F.3d 1019, 1063 (Fed. Cir. 2001) (Plager, J., dissenting)).
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extended this prohibition through the entirety of FY2012.18 The restrictions were effectively
extended again until March 27, 2013, by the Continuing Appropriations Resolution, 2013 (2013
CAR; P.L. 112-175), and then for the duration of the fiscal year by the FY2013 Consolidated and
Full Year Continuing Appropriations Act (P.L. 113-6) and the 2013 NDAA.19 The blanket
restriction on transfers into the United States effectively makes trial by military commission the
only viable option for prosecuting Guantanamo detainees for the foreseeable future, as no civilian
court operates at Guantanamo.
Considerable attention has also been drawn to other instances when terrorist suspects have been
apprehended by U.S. military or civilian law enforcement authorities. On July 5, 2011, Somali
national Ahmed Abdulkadir Warsame was brought to the United States to face terrorism-related
charges in a civilian court, after having reportedly been detained on a U.S. naval vessel for two
months for interrogation by military and intelligence personnel.1720 Some have argued that
Warsame should have remained in military custody abroad, while others argue that he should
have been transferred to civilian custody immediately. Controversy also arose regarding the arrest
by U.S. civil authorities of Umar Farouk Abdulmutallab and Faisal Shahzad,1821 who some argued
should have been detained and interrogated by military authorities and tried by military
commission. The Administration incurred additional criticism for bringing civilian charges
against two Iraqi refugees arrested in the United States on suspicion of having participated in
insurgent activities in Iraq against U.S. military forces,1922 although the war in Iraq has generally
been treated as separate from hostilities authorized by the AUMF, at least insofar as detainee
operations are concerned.
The following sections address the current status of U.S. policies and legal authorities with
respect to detainee matters that are addressed in the 2012 NDAA. The first section addresses the
scope of detention authority under the AUMF as the Administration views it and as it has
developed in court cases. The following section provides an overview of current practice
regarding initial status determinations and periodic reviews of detainee cases. The background
ends with a discussion of recidivism concerns underlying current restrictions on transferring
detainees from Guantanamo.
Scope of Detention Authority Conferred by the AUMF
Prior to passage of the 2012 NDAA, the AUMF constituted the primary legal basis supporting the
detention of persons captured in the conflict with Al Qaeda and affiliated entities, but the scope of
the detention authority it confers is not made plain by its terms, and accordingly can be subject to
differing interpretations. Section 1021 of the 2012 NDAA appears intended to codify present law,
as interpreted and applied by the executive branch and the D.C. Circuit, and expressly disavows
any construction that would limit or expand the President’s detention authority under the AUMF.
Accordingly, an understanding of the current state of the law may inform the interpretation of the
NDAA provisions relating to detention authority.
The Obama Administration framed its detention authority under the AUMF in a March 13, 2009,
court brief as follows:
The President has the authority to detain persons that the President determines planned,
authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,
and persons who harbored those responsible for those attacks. The President also has the
authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida
forces or associated forces that are engaged in hostilities against the United States or its
17
Peter Finn and Karen DeYoung, In Detention Case, a Blend of Two Systems, WASH. POST, July 6, 2011, at A02,
available at http://www.washingtonpost.com/national/national-security/in-somali-terror-suspects-case-administrationblends-military-civilian-systems/2011/07/06/gIQAQ4AJ1H_story.html.
1818
The Consolidated and Further Continuing Appropriations Act, 2012 (2012 Minibus), P.L. 112-55, §532 (providing
that “[n]one of the funds appropriated or otherwise made available in this or any other Act may be used to transfer,
release, or assist in the transfer or release to or within the United States, its territories, or possessions” any detainee held
at Guantanamo); Consolidated Appropriations Act, 2012 (2012 CAA), P.L. 112-74, Div. A, §8119, Div. H, §511
(similar). In appropriations legislation, the phrase “or any other act” is typically interpreted as applying to any
appropriation for the same fiscal year as the act in question. GOVERNMENT ACCOUNTABILITY OFFICE, OFFICE OF
GENERAL COUNSEL, I PRINCIPLES OF APPROPRIATIONS LAW 2-36 (3d ed. 2004) (citing Williams v. United States, 240
F.3d 1019, 1063 (Fed. Cir. 2001) (Plager, J., dissenting)).
19
FY2013 Consolidated and Full Year Continuing Appropriations Act, P.L. 113-6, Div. B, §530 and Div. C., §8109;
2013 NDAA, P.L. 112-239, §1027.
20
Peter Finn and Karen DeYoung, In Detention Case, a Blend of Two Systems, WASH. POST, July 6, 2011, at A02,
available at http://www.washingtonpost.com/national/national-security/in-somali-terror-suspects-case-administrationblends-military-civilian-systems/2011/07/06/gIQAQ4AJ1H_story.html. Warsame subsequently pleaded guilty to each
of the nine terrorism-related charges for which he was indicted. See Dept. of Justice, Press Release, “Manhattan U.S.
Attorney Announces Guilty Plea Of Ahmed Warsame,” March 23, 2013, available at http://www.justice.gov/usao/nys/
pressreleases/March13/WarsameUnsealingPR.php?print=1 (announcing the unsealing of guilty plea made in December
2011).
21
Umar Farouk Abdulmutallab is a Nigerian national accused of trying to destroy an airliner traveling from Amsterdam
to Detroit on Christmas Day 2009. He was apprehended and interrogated by civilian law enforcement before being
charged in an Article III court, where he was sentenced to life imprisonment. Faisal Shahzad, a naturalized U.S. citizen
originally from Pakistan, was arrested by civilian law enforcement and convicted in federal court for his attempt to
detonate a bomb in New York’s Times Square in 2010.
1922
See Jeremy Pelofsky, US Lawmaker Wants Accused Iraqis sentSent to Guantanamo, REUTERS NEWS, June 14, 2011.
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ends with a discussion of recidivism concerns underlying current restrictions on transferring
detainees from Guantanamo.
Scope of Detention Authority Conferred by the AUMF
Prior to passage of the 2012 NDAA, the AUMF constituted the primary legal basis supporting the
detention of persons captured in the conflict with Al Qaeda and affiliated entities, but the scope of
the detention authority it confers is not made plain by its terms, and accordingly can be subject to
differing interpretations. Section 1021 of the 2012 NDAA appears intended to codify existing law,
as interpreted and applied by the executive branch and the D.C. Circuit, and expressly disavows
any construction that would limit or expand the President’s detention authority under the AUMF.
Accordingly, an understanding of the state of the law prior to passage may inform the
interpretation of the NDAA provisions relating to detention authority.
The Obama Administration framed its detention authority under the AUMF in a March 13, 2009,
court brief as follows:
The President has the authority to detain persons that the President determines planned,
authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,
and persons who harbored those responsible for those attacks. The President also has the
authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida
forces or associated forces that are engaged in hostilities against the United States or its
: Detainee Matters
coalition partners, including any person who has committed a belligerent act, or has directly
supported hostilities, in aid of such enemy armed forces.2023
While membership in Al Qaeda or the Taliban seems to fall clearly within the parameters of the
AUMF, the inclusion of “associated forces,” a category of indeterminate breadth, has raised
questions raised questions
as to whether the detention authority claimed by the executive exceeded the AUMF’s
mandate.
The “substantial support” prong of the executive’s description of its detention authority
may raise
similar questions. The Supreme Court in Hamdi interpreted the detention authority
conferred by
the AUMF with reference to law of war principles, and there is some dispute as to
when and
whether persons may be subject to indefinite detention under the law of war solely on
account of
providing support to a belligerent force.2124 In its 2009 brief, the government declined to
clarify clarify
these aspects of its detention authority: “It is neither possible nor advisable, however, to
attempt to identify, in the abstract, the precise nature and degree of ‘substantial support,’ or the
precise characteristics of ‘associated forces,’ that are or would be sufficient to bring persons and
organizations within the foregoing framework.”22
The Obama Administration’s definition of its scope of detention authority is similar to the Bush
Administration’s definition describing who could be treated as an “enemy combatant,” differing
only in that it requires “substantial support,” rather than “support.”23 The controlling plurality
opinion in Hamdi quoted with apparent approval a government brief in that case describing the
authority to detain persons who support enemy forces, but suggested that such support would also
entail engaging in hostilities.24 Recent court decisions have not shed much light on the
“substantial support” prong of the test to determine detention eligibility, with all cases thus far
adjudicated by the Court of Appeals of the D.C. Circuit relying on proof that a detainee was
functionally part of Al Qaeda, the Taliban, or an associated force.25
20
attempt
to identify, in the abstract, the precise nature and degree of ‘substantial support,’ or the precise
23
See In re Guantanamo Bay Detainee Litigation, Respondents’ Memorandum Regarding the Government’s Detention
Authority Relative to Detainees Held at Guantanamo Bay, No. 08-0442, filed March 13, 2009 (D.D.C.)(hereinafter
“Government Brief”). This government brief is posted on the Department of Justice website at http://www.justice.gov/
opa/documents/memo-re-det-auth.pdf.
2124
Compare Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009) (finding that detention on account of providing
substantial or direct support to a belligerent, without more, is inconsistent with the laws of war), abrogated by AlBihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) with Ryan Goodman, The Detention of Civilians in Armed Conflict,
103 A.J.I.L. 48 (2009) (discussing instances where the laws of war permit the detention of persons who have not
directly participated in hostilities, including persons posing a security threat on account of their “indirect participation
in hostilities,” albeit as civilians rather than combatants). See also Allison M. Danner, Defining Unlawful Enemy
Combatants: A Centripetal Story, 43 TEX. INT'L L.J. 1 (2007) (suggesting that the justification for detaining persons for
providing “support” to Al Qaeda or the Taliban is influenced by principles of U.S. criminal law).
22
Government Brief, supra footnote 20, at 2. The government also claimed that the contours of the definition of
“associated forces” would require further development through their “application to concrete facts in individual cases.”
Id.
23
See Parhat v. Gates, 532 F.3d 834, 838 (D.C. Cir. 2008) (quoting definition used in the order establishing Combatant
Status Review Tribunals: “an individual who was part of or supporting Taliban or al Qaida forces, or associated forces
that are engaged in hostilities against the United States or its coalition partners. This includes any person who has
committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”)
24
Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (O’Connor, J., plurality opinion) (“A citizen, no less than an alien, can
be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict
against the United States’; such a citizen, if released, would pose the same threat of returning to the front during the
ongoing conflict.”) (emphasis added; citation omitted).
25
See CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by
Jennifer K. Elsea and Michael John Garcia.
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characteristics of ‘associated forces,’ that are or would be sufficient to bring persons and
organizations within the foregoing framework.”25
The Obama Administration’s definition of its scope of detention authority is similar to the Bush
Administration’s definition describing who could be treated as an “enemy combatant,” differing
only in that it requires “substantial support,” rather than “support.”26 The controlling plurality
opinion in Hamdi quoted with apparent approval a government brief in that case describing the
authority to detain persons who support enemy forces, but suggested that such support would also
entail engaging in hostilities.27 Court decisions have not shed much light on the “substantial
support” prong of the test to determine detention eligibility, with all cases thus far adjudicated by
the Court of Appeals of the D.C. Circuit relying on proof that a detainee was functionally part of
Al Qaeda, the Taliban, or an associated force.28
The executive branch has included “associated forces” as part of its description of the scope of its
detention authority since at least 2004, after a majority of the Supreme Court held in Hamdi that
the AUMF authorized the detention of enemy combatants for the duration of hostilities.2629 The
Court left to lower courts the task of defining the full parameters of the detention authority
conferred by the AUMF, and it did not mention “associated forces” in its opinion.27 In its 2009
brief, the government explained that
[The AUMF does not] limit the “organizations” it covers to just al-Qaida or the Taliban. In
Afghanistan, many different private armed groups trained and fought alongside al-Qaida and
the Taliban. In order “to prevent any future acts of international terrorism against the United
States,” AUMF, § 2(a), the United States has authority to detain individuals who, in
analogous circumstances in a traditional international armed conflict between the armed
forces of opposing governments, would be detainable under principles of co-belligerency.28
This statement is consistent with the position earlier taken by the Bush Administration with
respect to the detention of a group of Chinese Uighur dissidents who had been captured in
Afghanistan and transferred to Guantanamo as members of an “associated force.” In Parhat v.
Gates,29 the D.C. Circuit rejected the government’s contention that one petitioner’s alleged
affiliation with the East Turkistan Islamic Movement (ETIM) made him an “enemy combatant.”
The court accepted the government’s test for membership in an “associated force” (which was not
disputed by petitioner): “(1) the petitioner was part of or supporting ‘forces’; (2) those forces
were associated with al Qaida or the Taliban; and (3) those forces are engaged in hostilities
against the United States or its coalition partners.”30
The court did not find that the government’s evidence supported the second and third prongs, so it
found it unnecessary to reach the first. The government had defined “associated force” to be one
that “becomes so closely associated with al Qaida or the Taliban that it is effectively ‘part of the
same organization,’” in which case it argued ETIM is covered by the AUMF because that force
26
30 In its 2009
brief, the government explained that
25
Government Brief, supra footnote 23, at 2. The government also claimed that the contours of the definition of
“associated forces” would require further development through their “application to concrete facts in individual cases.”
Id.
26
See Parhat v. Gates, 532 F.3d 834, 838 (D.C. Cir. 2008) (quoting definition used in the order establishing Combatant
Status Review Tribunals: “an individual who was part of or supporting Taliban or al Qaida forces, or associated forces
that are engaged in hostilities against the United States or its coalition partners. This includes any person who has
committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”)
27
Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (O’Connor, J., plurality opinion) (“A citizen, no less than an alien, can
be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict
against the United States’; such a citizen, if released, would pose the same threat of returning to the front during the
ongoing conflict.”) (emphasis added; citation omitted).
28
See CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by
Jennifer K. Elsea and Michael John Garcia.
29
Hamdi v. Rumsfeld, 542 U.S. 507 (2004). A plurality of the Supreme Court stated:
The AUMF authorizes the President to use “all necessary and appropriate force” against “nations,
organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224.
There can be no doubt that individuals who fought against the United States in Afghanistan as part
of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible
for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that
detention of individuals falling into the limited category we are considering, for the duration of the
particular conflict in which they were captured, is so fundamental and accepted an incident to war
as to be an exercise of the “necessary and appropriate force” Congress has authorized the President
to use.
Id. at 518 (O’Connor, J., plurality opinion). See also id. at 587 (Thomas, J., dissenting) (agreeing with plurality that
AUMF authorizes the President to detain enemy forces).
2730
The plurality cited with apparent approval the declaration of a government official in explaining why the petitioner,
who had surrendered to the Northern Alliance in Afghanistan, was considered to be an “enemy combatant”:
[B]ecause al Qaeda and the Taliban “were and are hostile forces engaged in armed conflict with the
armed forces of the United States,” “individuals associated with” those groups “were and continue
to be enemy combatants.”
Id. at 514 (O’Connor, J., plurality opinion).
28
See Government Brief, supra footnote 20, at 7. One D.C. district judge expressly adopted the “co-belligerency” test
for defining which organizations may be deemed “associated forces” under the AUMF, see Hamilily v. Obama, 616 F.
Supp. 2d 63, 74-75 (D.D.C. 2009), but it does not appear that the D.C. Circuit has adopted that view.
29
532 F.3d 834 (D.C. Cir. 2008) (court challenge under now defunct Detainee Treatment Act judicial review process).
30
Id. at 843 (citations omitted).
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[The AUMF does not] limit the “organizations” it covers to just al-Qaida or the Taliban. In
Afghanistan, many different private armed groups trained and fought alongside al-Qaida and
the Taliban. In order “to prevent any future acts of international terrorism against the United
States,” AUMF, § 2(a), the United States has authority to detain individuals who, in
analogous circumstances in a traditional international armed conflict between the armed
forces of opposing governments, would be detainable under principles of co-belligerency.31
This statement is consistent with the position earlier taken by the Bush Administration with
respect to the detention of a group of Chinese Uighur dissidents who had been captured in
Afghanistan and transferred to Guantanamo as members of an “associated force.” In Parhat v.
Gates,32 the D.C. Circuit rejected the government’s contention that one petitioner’s alleged
affiliation with the East Turkistan Islamic Movement (ETIM) made him an “enemy combatant.”
The court accepted the government’s test for membership in an “associated force” (which was not
disputed by petitioner): “(1) the petitioner was part of or supporting ‘forces’; (2) those forces
were associated with al Qaida or the Taliban; and (3) those forces are engaged in hostilities
against the United States or its coalition partners.”33
The court did not find that the government’s evidence supported the second and third prongs, so it
found it unnecessary to reach the first. The government had defined “associated force” to be one
that “becomes so closely associated with al Qaida or the Taliban that it is effectively ‘part of the
same organization,’” in which case it argued ETIM is covered by the AUMF because that force
“thereby becomes the same ‘organization[ ]’ that perpetrated the September 11 attacks.” If the
definition asserted by the government in Parhat is adopted, then the term would seem to require a
close operational nexus in the current armed conflict. On the other hand, as the court noted,
“[t]his argument suggests that, even under the government’s own definition, the evidence must
establish a connection between ETIM and al Qaida or the Taliban that is considerably closer than
the relationship suggested by the usual meaning of the word ‘associated.’”3134 The court did not
find that the evidence adduced established that ETIM is sufficiently connected to Al Qaeda to be
an “associated force,” as the government had defined the concept, but the decision might have
come out differently if the court had adopted a plain language interpretation of “associated force.”
In its 2009 brief, the government indicated that the definition of “associated forces” would
require further development through its “application to concrete facts in individual cases.”3235 In
habeas cases so far, the term “associated forces” appears to have been interpreted only to cover
armed groups assisting the Taliban or Al Qaeda in Afghanistan. For instance, membership in
“Zubayda’s militia,” which reportedly assisted Osama bin Laden’s escape from Tora Bora, has
been found to be an “associated force” within the meaning of the AUMF.33 In another case, the
36 In another case, the
31
See Government Brief, supra footnote 23, at 7. One D.C. district judge expressly adopted the “co-belligerency” test
for defining which organizations may be deemed “associated forces” under the AUMF, see Hamilily v. Obama, 616 F.
Supp. 2d 63, 74-75 (D.D.C. 2009), but it does not appear that the D.C. Circuit has adopted that view.
32
532 F.3d 834 (D.C. Cir. 2008) (court challenge under now defunct Detainee Treatment Act judicial review process).
33
Id. at 843 (citations omitted).
34
Id. at 844. The court noted the following exchange that had taken place at an oral hearing:
Judge Sentelle: So you are dependent on the proposition that ETIM is properly defined as being
part of al Qaida, not that it aided or abetted, or aided or harbored al Qaida, but that it’s part of [?]
Mr. Katsas: Correct ... in order to fit them in the AUMF.
Id. and footnote 4.
35
Id.
36
See Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010).
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habeas court determined that Hezb–i–Islami Gulbuddin (HIG) is an “associated force” for AUMF
purposes because there was sufficient evidence to show that it supported continued attacks
against coalition and Afghan forces at the time petitioner was captured.3437 The D.C. Circuit also
affirmed the detention of a person engaged as a cook for the 55th Arab Military Brigade, an armed
force consisting of mostly foreign fighters that defended the Taliban from coalition efforts to oust
it from power.3538 However, the Administration has suggested that other groups outside of
Afghanistan may be considered “associated forces” such that the AUMF authorizes the use of
force against their members.3639 It is possible that Congress’s codification of the detention authority
as to “associated forces” in the 2012 NDAA may bring courts to interpret the term more broadly
than they have in the past in order to comport with the plain text meaning.
An issue of continuing uncertainty regarding the scope of detention authority conferred by the
AUMF concerns its application to persons captured outside of Afghanistan, and in particular
those who are U.S. citizens or otherwise have significant ties to the United States. While the
Supreme Court in Hamdi recognized that the AUMF permitted the detention of a U.S. citizen
captured while fighting U.S. coalition forces in Afghanistan, it did not address whether (or the
circumstances in which) persons captured outside of Afghanistan could be properly detained
under the AUMF. The U.S. Court of Appeals for the D.C. Circuit has apparently taken the view
31
Id. at 844. The court noted the following exchange that had taken place at an oral hearing:
Judge Sentelle: So you are dependent on the proposition that ETIM is properly defined as being
part of al Qaida, not that it aided or abetted, or aided or harbored al Qaida, but that it’s part of [?]
Mr. Katsas: Correct ... in order to fit them in the AUMF.
Id. and footnote 4.
32
Id.
33
See Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010).
34
Khan v. Obama, 646 F. Supp. 2d 6 (D.D.C. 2009). See also Khan v. Obama, 655 F.3d 20 (D.C. Cir. 2011) (in review
of lower court ruling in same litigation, affirming district court’s determination that HIG is an “associated force” within
the meaning of the AUMF).
35
Al-Bihani v. Obama, 590 F.3d 866, en banc rehearing denied, 619 F.3d 1 (D.C. Cir. 2010), cert. denied, 131 S. Ct.
1814 (2011).
36
See Harold Hongju Koh, Legal Adviser, U.S. Department of State, The Obama Administration and International
Law, Address at the Annual Meeting of the American Society of International Law, Washington, D.C. (March 25,
2010), available at http://www.state.gov/s/l/releases/remarks/139119.htm.
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that the AUMF authorizes the detention of any person who is functionally part of Al Qaeda,
though this view has been espoused so far only in cases involving non-U.S. citizens who have
been captured outside the United States.3740 In separate rulings, the U.S. Court of Appeals for the
Fourth Circuit upheld the military detention of a U.S. citizen and a lawfully admitted alien
captured in the United States who were designated as enemy combatants by the executive
branch.3841 In each case, the detainee was transferred to civilian law enforcement custody for
criminal prosecution before the Supreme Court could consider the merits of the case. In one of
these cases, the lower court’s decision upholding the detention was vacated.3942 The other case
affirming such a detention remains good law within the Fourth Circuit, but relied on conduct
outside the United States as the basis for detention.4043 Accordingly, the circumstances in which a
U.S. citizen or other person captured or arrested in the United States may be detained under the
authority conferred by the AUMF remains unsettled.41 The 2012 NDAA does not disturb the state
of the law in this regard.
Status Determinations for Unprivileged Enemy Belligerents
In response to Supreme Court decisions in 2004 related to “enemy combatants,” the Pentagon
established Combatant Status Review Tribunals (CSRTs) to determine whether detainees brought
to Guantanamo are subject to detention on account of enemy belligerency status. CSRTs are an
administrative and non-adversarial process based on the procedures the Army uses to determine
POW status during traditional wars.42 Guantanamo detainees who were determined not to be (or
no longer to be) enemy combatants were eligible for transfer to their country of citizenship or
were otherwise dealt with “consistent with domestic and international obligations and U.S.
foreign policy.”43 CSRTs confirmed the status of 539 enemy combatants between July 30, 2004,
37
37
Khan v. Obama, 646 F. Supp. 2d 6 (D.D.C. 2009). See also Khan v. Obama, 655 F.3d 20 (D.C. Cir. 2011) (in review
of lower court ruling in same litigation, affirming district court’s determination that HIG is an “associated force” within
the meaning of the AUMF).
38
Al-Bihani v. Obama, 590 F.3d 866, en banc rehearing denied, 619 F.3d 1 (D.C. Cir. 2010), cert. denied, 131 S. Ct.
1814 (2011).
39
See Harold Hongju Koh, Legal Adviser, U.S. Department of State, The Obama Administration and International
Law, Address at the Annual Meeting of the American Society of International Law, Washington, D.C. (March 25,
2010), available at http://www.state.gov/s/l/releases/remarks/139119.htm.
40
See, e.g., Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010) (recognizing that government might be able to lawfully
detain an Algerian citizen arrested by Bosnian authorities in 2001 and subsequently transferred to U.S. custody for
detention at Guantanamo, but remanding to lower court to assess sufficiency of government’s evidence that petitioner
was a member of Al Qaeda); Salahi v. Obama, 625 F.3d 745 (D.C. Cir. 2010) (in assessing whether person captured in
Mauritania was lawfully detained under the AUMF, “the relevant inquiry is whether [the petitioner] was ‘part of’ alQaida when captured”).
3841
Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005); al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008).
3942
al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008), vacated and remanded for dismissal on mootness grounds by alMarri v. Spagone, 555 U.S. 1220 (2009).
4043
Padilla v. Hanft, 423 F.3d 386, 390-391 (4th Cir. 2005)(holding that U.S. citizen captured in the United States could
be detained pursuant to the AUMF because he had been, prior to returning to the country, “‘armed and present in a
combat zone’ in Afghanistan as part of Taliban forces during the conflict there with the United States”).
41
For analysis of historical practice relating to the wartime detention of U.S. citizens, see CRS Report R42337,
Detention of U.S. Persons as Enemy Belligerents, by Jennifer K. Elsea.
42
See Department of Defense (DOD) Fact Sheet, “Combatant Status Review Tribunals,” available at
http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf. CSRT proceedings are modeled on the procedures
of Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees
(1997), which establishes administrative procedures to determine the status of detainees under the Geneva Conventions
and prescribes their treatment in accordance with international law. It does not include a category for “unlawful” or
“enemy” combatants, who would presumably be covered by the other categories.
43
See DOD Press Release, “Combatant Status Review Tribunal Order Issued” (June 7, 2004), available at
http://www.defense.gov/releases/release.aspx?releaseid=7530; Memorandum from the Deputy Secretary of Defense to
the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal, July 7, 2004 (hereinafter “CSRT
Order”), available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf; Memorandum from Deputy
Secretary of Defense, Implementation of Combatant Status Review Tribunals Procedures for Enemy Combatants
Detained at U.S. Naval Base Guantanamo Bay, Cuba, July 14, 2006 (hereinafter “CSRT Implementing Directive”),
available at http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf.
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and February 10, 2009.44
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authority conferred by the AUMF remains unsettled.44 The 2012 NDAA does not disturb the state
of the law in this regard.
Status Determinations for Unprivileged Enemy Belligerents
In response to Supreme Court decisions in 2004 related to “enemy combatants,” the Pentagon
established Combatant Status Review Tribunals (CSRTs) to determine whether detainees brought
to Guantanamo are subject to detention on account of enemy belligerency status. CSRTs are an
administrative and non-adversarial process based on the procedures the Army uses to determine
POW status during traditional wars.45 Guantanamo detainees who were determined not to be (or
no longer to be) enemy combatants were eligible for transfer to their country of citizenship or
were otherwise dealt with “consistent with domestic and international obligations and U.S.
foreign policy.”46 CSRTs confirmed the status of 539 enemy combatants between July 30, 2004,
and February 10, 2009.47 Although the CSRT process has been largely defunct since 2007 due to
the fact that so few detainees have been brought to Guantanamo since that time,4548 presumably any
new detainees who might be transported to the Guantanamo detention facility would go before a
CSRT. The CSRT process has only been employed with respect to persons held at Guantanamo.
Non-citizen detainees held by the United States in Afghanistan have been subject to a different
status review process which provides detainees with fewer procedural rights.46 Moreover,
whereas the Supreme Court has held that the constitutional writ of habeas extends to non-citizens
held at Guantanamo,47 enabling Guantanamo detainees to challenge the legality of their detention
in federal court, existing lower court jurisprudence has not recognized that a similar privilege
extends to non-citizen detainees held by the United States in Afghanistan.48
Shortly after taking office, President Obama issued a series of executive orders creating a number
of task forces to study issues related to the Guantanamo detention facility and U.S. detention
policy generally. While these groups prepared their studies, most proceedings related to military
commission and administrative review boards at Guantanamo, including the CSRTs, were held in
abeyance pending the anticipated recommendations. The Obama Administration also announced
in 2009 that it was implementing a new review system to determine or review the status of
detainees held at the Bagram Theater Internment Facility in Afghanistan,49 which continues to
apply at the new detention facility in Parwan.50 It is unclear what process has been used to
determine the status of persons captured in connection with the hostilities who were not
transported to any of those facilities.51
44
49 Moreover,
44
For analysis of historical practice relating to the wartime detention of U.S. citizens, see CRS Report R42337,
Detention of U.S. Persons as Enemy Belligerents, by Jennifer K. Elsea.
45
See Department of Defense Fact Sheet, “Combatant Status Review Tribunals,” available at
http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf. CSRT proceedings are modeled on the procedures
of Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees
(1997), which establishes administrative procedures to determine the status of detainees under the Geneva Conventions
and prescribes their treatment in accordance with international law. It does not include a category for “unlawful” or
“enemy” combatants, who would presumably be covered by the other categories.
46
See DOD Press Release, “Combatant Status Review Tribunal Order Issued” (June 7, 2004), available at
http://www.defense.gov/releases/release.aspx?releaseid=7530; Memorandum from the Deputy Secretary of Defense to
the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal, July 7, 2004 (hereinafter “CSRT
Order”), available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf; Memorandum from Deputy
Secretary of Defense, Implementation of Combatant Status Review Tribunals Procedures for Enemy Combatants
Detained at U.S. Naval Base Guantanamo Bay, Cuba, July 14, 2006 (hereinafter “CSRT Implementing Directive”),
available at http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf.
47
See Department of Defense, Combatant Status Review Tribunal Summary, February 10, 2009 [hereinafter “CSRT
Summary”], available at http://www.defense.gov/news/csrtsummary.pdf. Nearly all CSRT proceedings were held in
2004, another two dozen were held in 2005, none took place in 2006, fourteen were held in 2007 (likely the fourteen
“high-value” detainees, including Khalid Sheik Mohammed and others previously detained by the CIA), with numbers
dropping off significantly after that time. For more information about the CSRT rules and procedures, see CRS Report
RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and
Michael John Garcia.
4548
See Guantanamo Review Task Force, Final Report 1, January 22, 2010, available at http://www.justice.gov/ag/
guantanamo-review-final-report.pdf (reporting statistics related to arrivals at Guantanamo). CSRTs continue to be held
in the event that “new evidence” is received that may affect a detainee’s initial status determination, but these were
temporarily suspended in 2009 along with the suspension of the Annual Administrative Review process. See CSRT
Summary, supra footnote 44.
4647.
49
See generally, Maqaleh v. Gates, 604 F. Supp. 2d 205, 226-228 (D.D.C. 2009)(comparing CSRT process with that
employed at Bagram detention facility prior to 2009), vacated on other grounds and remanded by 605 F.3d 84 (D.C.
Cir. 2010) ; Jeff A.
Bovarnick, Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy, ARMY
LAW., June 2010, at
9 (discussing evolution of the detainee review process used by the United States in Afghanistan);
Letter from Phillip
Carter, Dep. Asst. Sec. Defense for Detainee Policy, to Sen. Carl Levin, Chairman of Sen. Armed
Serv. Comm., July
14, 2009, available at http://www.scotusblog.com/wp/wp-content/uploads/2009/09/US-Bagram-brief-9-14-09.pdf
(discussing 2009 modifications to the status review process employed with respect to persons held by the United States
at Bagram).
47
Boumediene v. Bush, 553 U.S. 723 (2008).
48
See Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010) (holding that, at least as a general matter, the constitutional writ
of habeas does not extend to non-citizens detained in the Afghan theater of war).
49
Karen DeYoung and Peter Finn, “New Review System Will Give Afghan Prisoners More Rights,” Washington Post,
September 13, 2009. The new system reportedly gave the detainees certain rights that were unavailable to detainees
subject to the “Unlawful Enemy Combatant Review Board” established in 2007, including a limited right to call
witnesses and examine government information, and a right to have the assistance of a personal military representative.
50
See Daniel, supra footnote 10.
51
Admiral McRaven, discussing this issue at his confirmation hearing for command of SOCOM, noted that
Guantanamo is “off the table” as a prospective destination for persons newly captured in hostilities against Al Qaeda,
(continued...)
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(continued...)
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whereas the Supreme Court has held that the constitutional writ of habeas extends to non-citizens
held at Guantanamo,50 enabling Guantanamo detainees to challenge the legality of their detention
in federal court, existing lower court jurisprudence has not recognized that a similar privilege
extends to non-citizen detainees held by the United States in Afghanistan.51
Shortly after taking office, President Obama issued a series of executive orders creating a number
of task forces to study issues related to the Guantanamo detention facility and U.S. detention
policy generally. While these groups prepared their studies, most proceedings related to military
commission and administrative review boards at Guantanamo, including the CSRTs, were held in
abeyance pending the anticipated recommendations. The Obama Administration also announced
in 2009 that it was implementing a new review system to determine or review the status of
detainees held at the Bagram Theater Internment Facility in Afghanistan,52 which also applied at
the detention facility in Parwan.53 It is unclear what process has been used to determine the status
of persons captured in connection with the hostilities who were not transported to any of those
facilities.54
On March 7, 2011, President Obama issued Executive Order 13567, establishing a process for the
periodic review of the continued detention of persons currently held at Guantanamo who have
either been (1) designated for preventive detention under the laws of war or (2) referred for
criminal prosecution, but have not been convicted of a crime and do not have formal charges
pending against them.5255 The executive order establishes a Periodic Review Board (PRB) to assess
whether the continued detention of a covered individual is warranted in order “to protect against a
significant threat to the security of the United States.” In instances where a person’s continued
detention is not deemed warranted, the Secretaries of State and Defense are designated
responsibility “for ensuring that vigorous efforts are undertaken to identify a suitable transfer
location for any such detainee, outside of the United States, consistent with the national security
and foreign policy interests of the United States” and relevant legal requirements. An initial
review of each individual covered by the order, which involves a hearing before the PRB in
which the detainee and his representative may challenge the government’s basis for his continued
(...continued)
brief-9-14-09.pdf (discussing 2009 modifications to the status review process employed with respect to persons held by
the United States at Bagram).
50
Boumediene v. Bush, 553 U.S. 723 (2008).
51
See Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010) (holding that, at least as a general matter, the constitutional writ
of habeas does not extend to non-citizens detained in the Afghan theater of war).
52
Karen DeYoung and Peter Finn, “New Review System Will Give Afghan Prisoners More Rights,” Washington Post,
September 13, 2009. The new system reportedly gave the detainees certain rights that were unavailable to detainees
subject to the “Unlawful Enemy Combatant Review Board” established in 2007, including a limited right to call
witnesses and examine government information, and a right to have the assistance of a personal military representative.
53
See Daniel, supra footnote 10.
54
Admiral McRaven, discussing this issue at his confirmation hearing for command of SOCOM, noted that
Guantanamo is “off the table” as a prospective destination for persons newly captured in hostilities against Al Qaeda,
and that sovereignty issues make it unlikely that persons captured outside Afghanistan will be transferred to Parwan for
detention. See McRaven Testimony, supra footnote 15. Admiral McRaven indicated that captures outside a theater of
operations like Iraq or Afghanistan are treated on a case-by-case basis, with detainees sometimes kept on board a naval
vessel until a decision is made, id. at 37, but did not indicate what if any process is used to determine the detainee’s
status as subject to detention under the AUMF in the first place.
55
Exec. Order No. 13,567, “Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to
Authorization to Use Military Force,” 76 Fed. Reg. 13,277 (March 10, 2011) [hereinafter “Executive Order on Periodic
Review”].
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detention and introduce evidence on his own behalf, was required to occur within a year of the
order’s issuance. The order requires a full review thereafter on a triennial basis and a file review
every six months in intervening years, which could, if significant new information is revealed
therein, result in a new full review. The order also specifies that the process it establishes is
discretionary; does not create any additional basis for detention authority or modify the scope of
authority granted under existing law; and is not intended to affect federal courts’ jurisdiction to
determine the legality of a person’s continued detention. The one-year deadline established by the
executive order for the initial review of covered persons’ continued detention was not met. In
May 2012, the Department of Defense issued a directive that establishes guidelines for the
implementation of the periodic review process., but it was not until July 2013 that it was
announced that the first periodic review boards will take place.56
“Recidivism” and Restrictions on Transfer
Concerns that detainees released from Guantanamo to their home country or resettled elsewhere
have subsequently engaged in terrorist activity have spurred Congress to place limits on detainee
transfers, generally requiring a certification that adequate measures are put in place in the
destination country to prevent transferees from “returning to the battlefield.”5357 Statistics regarding
the post-release activities of Guantanamo detainees have been somewhat elusive, however, with
much of the information remaining classified. It does not appear to be disputed that some
detainees have engaged in terrorist activities of some kind after their release from Guantanamo,
but the significance of such activity has been subject to debate. The policy implications of the
reported activities have also been the subject of controversy, with some arguing that virtually
none of the remaining prisoners should be transferred and others arguing that long-term detention
(...continued)
and that sovereignty issues make it unlikely that persons captured outside Afghanistan will be transferred to Parwan for
detention. See McRaven Testimony, supra footnote 13. Admiral McRaven indicated that captures outside a theater of
operations like Iraq or Afghanistan are treated on a case-by-case basis, with detainees sometimes kept on board a naval
vessel until a decision is made, id. at 37, but did not indicate what if any process is used to determine the detainee’s
status as subject to detention under the AUMF in the first place.
52
Exec. Order No. 13,567, “Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to
Authorization to Use Military Force,” 76 Fed. Reg. 13,277 (March 10, 2011) [hereinafter “Executive Order on Periodic
Review”].
53
For an overview of restrictions, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the
111th Congress, by Michael John Garcia.
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without trial of such persons, based on the conduct of others who have been released, is
fundamentally unfair.
In 2007, the Pentagon issued a news release estimating that 30 former detainees had since their
release engaged in militant activities or “anti-U.S. propaganda” (apparently including public
criticism of U.S. detention policies).5458 This number and others released by DOD officials were
challenged by researchers at Seton Hall University School of Law Center for Policy and Research
who, in connection with advocacy on behalf of some Guantanamo detainees pursuing habeas
cases, identified what they viewed as discrepancies in DOD data as well as a lack of identifying
information that would enable independent verification of the numbers.5559 Moreover, they took
issue with the Pentagon’s assertion that the former detainees’ activities could be classified as
“recidivism” or “reengagement,” inasmuch as data released by the Pentagon from CSRT hearings
did not establish in each case that the detainee had engaged in terrorist or insurgent activity in the
first place, and suggested that post-release terrorist conduct could potentially be explained by
56
Carol Rosenberg, 71 Guantanamo prisoners will get parole-style hearings, Pentagon says, WASH. POST, July 22,
2013, at A4.
57
For an overview of restrictions, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the
111th Congress, by Michael John Garcia.
58
Department of Defense, “Former Guantanamo Detainees Who Have Returned to the Fight,” news release, July 12,
2007.
59
See Mark Denbeaux et al., The Meaning of “Battlefield”(2007) available at http://law.shu.edu/publications/
guantanamoReports/meaning_of_battlefield_final_121007.pdf; see also Mark Denbeaux et al., Released Guantánamo
Detainees and the Department of Defense: Propaganda by the Numbers? (2009), available at http://law.shu.edu/
publications/guantanamoReports/propaganda_numbers_11509.pdf.
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radicalization during internment. The study did note that available data confirmed some cases of
individuals who engaged in deadly activities such as suicide bombings after leaving Guantanamo.
In 2008, the Defense Intelligence Agency (DIA) reported that 36 ex-Guantanamo detainees were
confirmed or suspected of having returned to terrorism.5660 In 2009, the Pentagon reported that 1 in
7, or 74 of the 534 prisoners transferred from Guantanamo were believed to have subsequently
engaged in terrorism or militant activity.5761
More recent estimates by the executive branch, sometimes made publicly available through
legislative action, have provided different numbers. In December 2010, pursuant to a requirement
contained in the Intelligence Authorization Act of FY2010 (P.L. 111-259), the Director of
National Intelligence (DNI) released an unclassified summary of intelligence relating to
recidivism rates of current or former Guantanamo detainees, as well as an assessment of the
likelihood that such detainees may engage in terrorism or communicate with terrorist
organizations. The report stated that of the 598 detainees transferred out of Guantanamo, the
“Intelligence Community assesses that 81 (13.5 percent) are confirmed and 69 (11.5 percent) are
suspected of reengaging in terrorist or insurgent activities after transfer.”58 Of the 150 confirmed
54
Department of Defense, “Former Guantanamo Detainees Who Have Returned to the Fight,” news release, July 12,
2007.
55
See Mark Denbeaux et al., The Meaning of “Battlefield”(2007) available at http://law.shu.edu/publications/
guantanamoReports/meaning_of_battlefield_final_121007.pdf; see also Mark Denbeaux et al., Released Guantánamo
Detainees and the Department of Defense: Propaganda by the Numbers? (2009), available at http://law.shu.edu/
publications/guantanamoReports/propaganda_numbers_11509.pdf.
5662 Of the 150 confirmed
or suspected recidivist detainees, the report stated that 13 are dead, 54 are in custody, and 83
remain at large. The summary also indicated that, of 66 detainees transferred from Guantanamo
since the implementation of Executive Order 13492,63 2 are confirmed and 3 are suspected of
participating in terrorist or insurgent activities.64 The report does not include detainees solely on
the basis of anti-U.S. statements or writings.65
In September 2011, Director of National Intelligence Lieutenant General James Clapper testified
in a congressional hearing that the number of former Guantanamo detainees who were either
suspected or confirmed to have engaged in terrorist or insurgent activities upon release had risen
60
Department of Defense, Fact Sheet: Former GTMO Detainee Terrorism Trends (June 13, 2008), available at
http://www.defense.gov/news/d20080613Returntothefightfactsheet.pdf. The factsheet described “confirmed” as being
demonstrated by a “preponderance of evidence,” such as “fingerprints, DNA, conclusive photographic match, or
reliable, verified, or well-corroborated intelligence reporting.” It described “suspected” as “[s]ignificant reporting
indicates a former Defense Department detainee is involved in terrorist activities, and analysis indicates the detainee
most likely is associated with a specific former detainee or unverified or single-source, but plausible, reporting
indicates a specific former detainee is involved in terrorist activities.” (Emphasis in original). The document does not
indicate how many of the total number fell into each category.
5761
Elisabeth Bumiller, Later Terror Link Cited for 1 in 7 Freed Detainees, NY TIMES, May 20, 2009, available at
http://www.nytimes.com/2009/05/21/us/politics/21gitmo.html. The report noted that 27 of the former prisoners were
confirmed as having engaged in terrorism, while the remaining 47 were merely suspected of doing so. Id. (editor’s
note).
5862
Office of the Director of National Intelligence, Summary of the Reengagement of Detainees Formerly Held at
Guantanamo Bay, Cuba (December 2010) [hereinafter “2010 DNI Recidivism Summary”], available at
(continued...)
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or suspected recidivist detainees, the report stated that 13 are dead, 54 are in custody, and 83
remain at large. The summary also indicated that, of 66 detainees transferred from Guantanamo
since the implementation of Executive Order 13492,59 2 are confirmed and 3 are suspected of
participating in terrorist or insurgent activities.60 The report does not include detainees solely on
the basis of anti-U.S. statements or writings.61
In September 2011, Director of National Intelligence Lieutenant General James Clapper testified
in a congressional hearing that the number of former Guantanamo detainees who were either
suspected or confirmed to have engaged in terrorist or insurgent activities upon release had risen
to 27%.62http://www.dni.gov/electronic_reading_room/
120710_Summary_of_the_Reengagement_of_Detainees_Formerly_Held_at_Guantanamo_Bay_Cuba.pdf.
63
Exec. Order No. 13,492, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and
Closure of Detention Facilities, 74 Fed. Reg. 4,897 (January 22, 2009).
64
2010 DNI Recidivism Summary, supra footnote 62.
65
Id. The assessment defines “terrorist” or “insurgent” activities for its purposes as including “planning terrorist
operations, conducting a terrorist or insurgent attack against Coalition or host-nation forces or civilians, conducting a
suicide bombing, financing terrorist operations, recruiting others for terrorist operations, arranging for movement of
individuals involved in terrorist operations, etc.” but not communications on issues not related to terrorist operations or
“writing anti-U.S. books or articles, or making anti-U.S. propaganda statements.” Id.
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to 27%.66 In January 2012, the President signed into law the Intelligence Authorization Act of
FY2012 (P.L. 112-87), which required the DNI to release another unclassified summary of
intelligence relating to recidivism rates of current or former Guantanamo detainees, and to
provide periodic updates not less than every six months thereafter.6367 The first summary was
released in March 2012, and claimed that of the 599 detainees transferred out of Guantanamo by
the end of 2011, 95 detainees (15.9%) were “confirmed of reengaging” in terrorist or insurgent
activities, and 72 detainees (12.0%) were “suspected of reengaging” in such activities.6468 Of the 67
detainees transferred since the implementation of Executive Order 13492, 3 arewere confirmed and 2
arewere suspected of participating in terrorist or insurgent activities.6569 As with the earlier DNI
estimate, the report does not identify detainees as “reengaging” in terrorist or insurgent activity
solely on the basis of anti-U.S. statements, or on account of communications with persons or
organizations that are unrelated to terrorist operations. A newAn estimate released in July 2012
shows shows
an increase of three in the total number of released detainees and an increase of one in the
“suspected of reengaging” category.66
(...continued)
http://www.dni.gov/electronic_reading_room/
120710_Summary_of_the_Reengagement_of_Detainees_Formerly_Held_at_Guantanamo_Bay_Cuba.pdf.
59
Exec. Order No. 13,492, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and
Closure of Detention Facilities, 74 Fed. Reg. 4,897 (January 22, 2009).
60
2010 DNI Recidivism Summary, supra footnote 58.
61
Id. The assessment defines “terrorist” or “insurgent” activities for its purposes as including “planning terrorist
operations, conducting a terrorist or insurgent attack against Coalition or host-nation forces or civilians, conducting a
suicide bombing, financing terrorist operations, recruiting others for terrorist operations, arranging for movement of
individuals involved in terrorist operations, etc.” but not communications on issues not related to terrorist operations or
“writing anti-U.S. books or articles, or making anti-U.S. propaganda statements.” Id.
6270 The latest estimate, released in March 2013, shows one
more detainee was released and one detainee added to the category of “suspected of reengaging”
who is not currently in custody.71
The accuracy or significance of the numbers provided by DNI and other government entities has
been questioned by some observers. In response to the release of the 2010 DNI estimate, the New
America Foundation analyzed publicly available Pentagon reports and other documents and
estimated that the actual figure of released detainees who went on to pose a threat to the United
States or its interests is closer to 6%.72 Some have raised similar criticisms with respect to the
accuracy of more recent DNI estimates.73 Because the intelligence data forming the basis for the
DNI’s reports remain classified, it is not possible to explain the discrepancy between their
estimates of detainee recidivism numbers and those estimates deriving from publicly available
sources. At any rate, there seems to be broad agreement that the number of detainees who engage
in activities related to terrorism after their release has grown.
66
Lt. Gen. James Clapper, Director of National Intelligence, The State of Intelligence Reform 10 Years After 9/11, Joint
Hearing of the Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence, U.S.
House of Representatives, September 13, 2011. See also U.S. Congress, House Committee on Armed Services,
Subcommittee on Oversight and Investigations, Leaving Guantanamo: Policies, Pressures, and Detainees Returning to
the Fight (January 2012), available at http://armedservices.house.gov/index.cfm/files/serve?File_id=24338661-2a6d49c6-b9a5-bb0721825a69/.
6367
Intelligence Authorization Act of FY2012, P.L. 112-87, §307.
6468
Office of the Director of National Intelligence, Summary of the Reengagement of Detainees Formerly Held at
Guantanamo Bay, Cuba (March 2012), available at http://dni.gov/reports/
March%202012%20Summary%20of%20Reengagement.pdf.
6569
Id.
6670
Office of the Director of National Intelligence, Summary of the Reengagement of Detainees Formerly Held at
Guantanamo Bay, Cuba (Julyas of July 19, 2012) [hereinafter “2012 DNI Recidivism Summary”], available at
http://www.dni.gov/
files/documents/Newsroom/Reports%20and%20Pubs/Reports%20and%20Pubs%202012/
Summary%20of%20the%20Reengagement%20of%20Detainees%20Formerly%20Held%20at%20GTMO.pdf.
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The accuracy or significance of the numbers provided by DNI and other government entities has
been questioned by some observers. In response to the release of the 2010 DNI estimate, the New
America Foundation analyzed publicly available Pentagon reports and other documents and
estimated that the actual figure of released detainees who went on to pose a threat to the United
States or its interests is closer to 6%.67 Some have raised similar criticisms with respect to the
accuracy of more recent DNI estimates.68 Because the intelligence data forming the basis for the
DNI’s reports remain classified, it is not possible to explain the discrepancy between their
estimates of detainee recidivism numbers and those estimates deriving from publicly available
sources. At any rate, there seems to be broad agreement that the number of detainees who engage
in activities related to terrorism after their release has grown.
71
Office of the Director of National Intelligence, Summary of the Reengagement of Detainees Formerly Held at
Guantanamo Bay, Cuba (as of January 14, 2013), available at http://www.dni.gov/files/documents/
March%202013%20GTMO%20Reengagement%20Release.pdf.
72
See Peter Bergen, Katherine Tiedemann, and Andrew Lebovich, How Many Gitmo Alumni Take Up Arms?, FOREIGN
POLICY online, January 11, 2011, available at http://www.foreignpolicy.com/articles/2011/01/11/
how_many_gitmo_alumni_take_up_arms.
73
See Andy Worthington, Future of Freedom Foundation, Guantánamo and Recidivism: The Media’s Ongoing Failure
to Question Official Statistics, March 13, 2012, available at http://www.fff.org/comment/com1203k.asp.
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2012 NDAA: Summary and Analysis of
Detainee Provisions
Detention Authority
Section 1021 affirms that the AUMF includes authority for the U.S. Armed Forces to detain
“covered persons” pending disposition under the law of war. The provision generally tracks the
language of Senate-passed S. 1867. Combining the express language of the AUMF with the
language the Obama Administration has employed to describe its detention authority in habeas
litigation involving Guantanamo detainees,6974 the 2012 NDAA defines “covered persons” in
Section 1021(b) as including two categories of persons:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred
on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or
associated forces that are engaged in hostilities against the United States or its coalition
partners, including any person who has committed a belligerent act or has directly supported
such hostilities in aid of such enemy forces.7075
Section 1021 states that dispositions under the law of war “may include” several options:
67
See Peter Bergen, Katherine Tiedemann, and Andrew Lebovich, How Many Gitmo Alumni Take Up Arms?, FOREIGN
POLICY online, January 11, 2011, available at http://www.foreignpolicy.com/articles/2011/01/11/
how_many_gitmo_alumni_take_up_arms.
68
See Andy Worthington, Future of Freedom Foundation, Guantánamo and Recidivism: The Media’s Ongoing Failure
to Question Official Statistics, March 13, 2012, available at http://www.fff.org/comment/com1203k.asp.
69
See supra, discussion in “Scope of Detention Authority Conferred by the AUMF.”
70
•
detention without trial until the end of hostilities authorized by the 2001 AUMF;
•
trial by military commission;
•
transfer for trial by another court or tribunal with jurisdiction; or
•
transfer to the custody or control of a foreign country or foreign entity.
The provision uses the language “may include” with respect to the above options, which could be
read as permission to add other options or negate any of the listed options.76
Section 1021 does not expressly clarify whether U.S. citizens or lawful resident aliens may be
determined to be “covered persons.” The potential application of an earlier version of Section
1021 found in S. 1867 (in that bill numbered Section 1031) to U.S. citizens and other persons
within the United States was the subject of significant floor debate. An amendment that would
74
See supra, discussion in “Scope of Detention Authority Conferred by the AUMF.”
The earlier version of Section 1021 contained in S. 1253 (in that bill numbered Section 1031) had included similar
language defining “covered persons,” but rather than “affirming” detention authority under the AUMF, it directly
authorized the Armed Forces to detain covered persons “captured in the course of hostilities authorized by the [AUMF]
as unprivileged enemy belligerents,” and permitted their detention until “the end of hostilities against the nations,
organizations, and persons subject to the [AUMF].” The White House reportedly objected to the language “captured in
the course of hostilities” because it could be read to limit detentions to those captured during military operations and
not persons who are arrested under other circumstances. See Charlie Savage, Levin and McCain Strike Deal Over
Detainee Handling, THE CAUCUS (BLOG) NY TIMES (November 15, 2011, 3:19 PM),
http://thecaucus.blogs.nytimes.com/2011/11/15/levin-and-mccain-strike-deal-over-detainee-handling/.
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•
detention without trial until the end of hostilities authorized by the 2001 AUMF;
•
trial by military commission;
•
transfer for trial by another court or tribunal with jurisdiction; or
•
transfer to the custody or control of a foreign country or foreign entity.
The provision uses the language “may include” with respect to the above options, which could be
read as permission to add other options or negate any of the listed options.71
Section 1021 does not expressly clarify whether U.S. citizens or lawful resident aliens may be
determined to be “covered persons.” The potential application of an earlier version of Section
1021 found in S. 1867 (in that bill numbered Section 1031) to U.S. citizens and other persons
within the United States was the subject of significant floor debate. An amendment that would
76
During the Senate floor debate over S. 1867, an amendment offered by Senator Sessions to clarify that an acquittal
by a federal court or military commission would not preclude continued detention under the law of war was not
adopted. S.Amdt. 1274 (not agreed to by a vote of 41-59).
75
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have expressly barred U.S. citizens from long-term military detention on account of enemy
belligerent status was considered and rejected.7277 Ultimately, an amendment was adopted that
added the following proviso: “Nothing in this section shall be construed to affect existing law or
authority relating to the detention of United States citizens, lawful resident aliens of the United
States, or any other persons who are captured or arrested in the United States.”7378
This language, which remains in the final version of the act,7479 along with a separate clause which
provides that nothing in Section 1021 “is intended to limit or expand the authority of the
President or the scope of the Authorization for the Use of Military Force,” makes clear that the
provision is not intended to either expand or limit the executive’s existing authority to detain U.S.
citizens and resident aliens, as well as other persons captured in the United States. Such
detentions have been rare and subject to substantial controversy, without achieving definitive
resolution in the courts. While the Supreme Court in Hamdi recognized that persons captured
while fighting U.S. forces in Afghanistan could be militarily detained in the conflict with Al
Qaeda potentially for the duration of hostilities, regardless of their citizenship, the circumstances
in which persons captured in the United States may be subject to preventive military detention
71
During the Senate floor debate over S. 1867, an amendment offered by Senator Sessions to clarify that an acquittal
by a federal court or military commission would not preclude continued detention under the law of war was not
adopted. S.Amdt. 1274 (not agreed to by a vote of 41-59).
72
have not been definitively adjudicated.80 Section 1021 does not attempt to clarify the
circumstances in which a U.S. citizen, lawful resident alien, or other person captured within the
United States may be held as an enemy belligerent in the conflict with Al Qaeda. Consequently, if
the executive branch decides to hold such a person under the detention authority affirmed in
Section 1021, it is left to the courts to decide whether Congress meant to authorize such detention
when it enacted the AUMF in 2001.81
77
S.Amdt. 1126 (seeking to bar the long-term military detention of U.S. citizens) (not agreed to by a vote of 45-55).
73
S.Amdt. 1456.
7479
The language was amended slightly in conference by adding commas. With or without the commas, it is unclear
whether U.S. citizens or lawful resident aliens are meant to be covered only if they are captured or arrested in the
United States, or whether the place of arrest is important only with respect to “other persons.” Accordingly, the
provision might be interpreted as conferring broader detention authority with respect to U.S. citizens and lawful
resident aliens who are captured abroad than what was originally included in the AUMF (though Section 1021(d) of
the 2012 NDAA states that Section 1021 is not intended to limit or expand either the President’s authority to detain
persons or scope of the authority conferred by the AUMF) . The Hamdi decision seems to establish clear detention
authority with . The Court of Appeals for the Second Circuit has interpreted
the phrase to cover U.S. citizens and lawful resident aliens irrespective of location. Hedges v. Obama, — F.3d —, 2013
WL 3717774 (2d Cir. 2013). The Supreme Court’s decision in Hamdi seems to establish clear detention authority with
respect to those who engaged in relevant hostilities overseas, but not with respect to those captured in
other other
circumstances. The D.C. Circuit, however, has not required proof that a detainee actually engaged in hostilities in
order order
to affirm detention authority, and would likely apply the same definitional analysis to U.S. citizens and resident
aliens aliens
that it has applied to aliens detained at Guantanamo. U.S. persons detained under the authority would be able to
challenge their detention by petitioning for habeas corpus, even if they are detained abroad outside of Guantanamo.
Whether the courts will accord U.S. citizens or resident aliens the same procedural rights that the D.C. Circuit has
deemed appropriate for aliens detained at Guantanamo remains to be seen, if in fact any such persons are detained
under the provision.
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have not been definitively adjudicated.75 Section 1021 does not attempt to clarify the
circumstances in which a U.S. citizen, lawful resident alien, or other person captured within the
United States may be held as an enemy belligerent in the conflict with Al Qaeda. Consequently, if
the executive branch decides to hold such a person under the detention authority affirmed in
Section 1021, it is left to the courts to decide whether Congress meant to authorize such detention
when it enacted the AUMF in 2001.76
80
In separate rulings, the U.S. Court of Appeals for the Fourth Circuit upheld the military detention of a U.S. citizen
and a resident alien captured in the United States and designated as enemy combatants by the executive branch. Padilla
v. Hanft, 423 F.3d 386, 390-391 (4th Cir. 2005)(holding that U.S. citizen captured in the United States could be
detained pursuant to the AUMF because he had been, prior to returning to the country, “‘armed and present in a combat
zone’ in Afghanistan as part of Taliban forces during the conflict there with the United States”); al-Marri v. Pucciarelli,
534 F.3d 213 (4th Cir. 2008), vacated by al-Marri v. Spagone, 129 S.Ct. 1545 (2009). In each case, the detainee was
transferred to civilian law enforcement custody for criminal prosecution before the Supreme Court could consider the
merits of the case. See also “Scope of Detention Authority Conferred by the AUMF.”
81
In the case of a resident alien detained on the basis of activity conducted within the United States that could bring the
person within the purview of the mandatory detention provision in Section 1022, the President may have to first
determine whether the detention is constitutional in order to establish whether military custody is in fact mandated
(continued...)
78
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In restating the definitional standard the Administration uses to characterize its detention
authority, Section 1021 does not attempt to provide additional clarification for terms such as
“substantial support,” “associated forces,” or “hostilities.” For that reason, it may be subject to an
evolving interpretation that effectively permits a broadening of the scope of the conflict. The
provision does require the Secretary of Defense to brief Congress on how it is applied, including
with respect to “organizations, entities, and individuals considered to be ‘covered persons’ under
section 1021(b).” This language may be read to require an ongoing accounting of which entities
are considered to be “associated forces” or a description of what constitutes “substantial support.”
Although Section 1021 provides that it does not modify any existing detention authority
concerning “lawful resident aliens,” neither the NDAA nor any other federal statute provides a
definition of this term.7782 It is possible that the drafters of the NDAA intended this category to
refer to the classification of aliens known as legal permanent residents (LPRs). Aliens with LPR
status are allowed to permanently reside in the United States, unless such status terminates as a
result of a final order of removal or exclusion. On the other hand, it is possible that the drafters of
the NDAA intended the term “lawful resident alien” to also include other aliens who are lawfully
present in the United States on a long-term basis but who do not have LPR status (e.g., an alien
lawfully present in the United States for an extended period pursuant to a student visa).
When signing the 2012 NDAA into law, President Obama claimed that Section 1021 “breaks no
new ground and is unnecessary,” as it “solely codifies established authorities”78—namely,
75
In separate rulings, the U.S. Court of Appeals for the Fourth Circuit upheld the military detention of a U.S. citizen
and a resident alien captured in the United States and designated as enemy combatants by the executive branch. Padilla
v. Hanft, 423 F.3d 386, 390-391 (4th Cir. 2005)(holding that U.S. citizen captured in the United States could be
detained pursuant to the AUMF because he had been, prior to returning to the country, “‘armed and present in a combat
zone’ in Afghanistan as part of Taliban forces during the conflict there with the United States”); al-Marri v. Pucciarelli,
534 F.3d 213 (4th Cir. 2008), vacated by al-Marri v. Spagone, 129 S.Ct. 1545 (2009). In each case, the detainee was
transferred to civilian law enforcement custody for criminal prosecution before the Supreme Court could consider the
merits of the case. See also “Scope of Detention Authority Conferred by the AUMF.”
76
In the case of a resident alien detained on the basis of activity conducted within the United States that could bring the
person within the purview of the mandatory detention provision in Section 1022, the President may have to first
determine whether the detention is constitutional in order to establish whether military custody is in fact mandated
pursuant to Section 1022. See infra.
7783—namely,
detention authority conferred by the AUMF, as interpreted by the Supreme Court and lower court
decisions. President Obama also announced that he would “not authorize the indefinite military
detention without trial of American citizens,” regardless of whether such detention would be
permissible under the AUMF or the 2012 NDAA.
(...continued)
pursuant to Section 1022.
82
Although the Immigration and Nationality Act (INA) contains a definition of “residence” for immigration purposes
and the Internal Revenue Code defines “resident alien” for tax purposes, these definitions are not coextensive. Compare
8 U.S.C. §1101(a)(33) with 26 U.S.C. §7701(b)(1)(A). It is unclear whether the drafters of the NDAA had either of
these definitions in mind when they used the term “lawful resident alien.” The 2012 NDAA is not the first instance
where legislation has used the term “lawful resident alien.” For example, a few legislative proposals introduced in the
mid-1990s but not enacted into law used the term to refer to a particular category of aliens eligible for government
benefits. See, e.g., H.R. 999, the Welfare Reform and Consolidation Act of 1995 (104th Cong.); H.R. 3960, the
American Health Security Act of 1994 (103rd Cong.). However, these bills defined “lawful resident aliens” differently
from one another, which seems to affirm the view that the term has no generally understood meaning.
7883
Presidential Signing Statement on 2012 NDAA, supra footnote 4. The White House had previously expressed
concern that congressional attempts to codify existing detention authorities was “unnecessary and poses some risk.” See
White House Statement on S. 1867, supra footnote 2, at 1-2. When S. 1867, 112th Cong., was reported out of committee, the Obama
(continued...)
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detention authority conferred by the AUMF, as interpreted by the Supreme Court and lower court
decisions. President Obama also announced that he would “not authorize the indefinite military
detention without trial of American citizens,” regardless of whether such detention would be
permissible under the AUMF or the 2012 NDAA.
committee, the Obama Administration expressed concern about a provision corresponding to Section 1021 in the
enacted 2012 NDAA, cautioning that
Congress must be careful not to open a whole new series of legal questions that will distract from
our efforts to protect the country. While the current language minimizes many of those risks, future
legislative action must ensure that the codification in statute of express military detention authority
does not carry unintended consequences that could compromise our ability to protect the American
people.
Id.
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Mandatory Military Detention
The provision that appears to have evoked the most resistance on the part of the Administration,
Section 1022, generally requires at least temporary military custody for certain Al Qaeda
members and members of certain “associated forces” who are taken into the custody or brought
under the control of the United States as of 60 days from the date of enactment. This provision
does not apply to all persons who are permitted to be detained as “covered persons” under Section
1021, but only those captured during the course of hostilities who meet certain criteria. It
expressly excludes U.S. citizens from its purview, although it applies to lawful resident aliens
(albeit with the caveat that if detention is based on conduct taking place within the United States,
such detention is mandated only “to the extent permitted by the Constitution of the United
States”).7984 Moreover, the President is authorized to waive the provision’s application if he submits
a certification to Congress that “such a waiver is in the national security interests of the United
States” (for discussion of executive’s implementation of Section 1022, including its exercise of
waiver authority, see infra at “Developments Since the Enactment of the 2012 NDAA”).
The mandatory detention requirement applies to covered persons captured in the course of
hostilities authorized by the AUMF, defining “covered persons” for its purposes as a person
subject to detention under Section 1021 who is determined
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination
with or pursuant to the direction al al-Qaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted
attack against the United States or its coalition partners.
Persons described above are required to be detained by military authorities pending “disposition
under the law of war,” as defined in Section 1021, except that additional requirements must first
be met before the detainee can be transferred to another country. Accordingly, such persons may
be (1) held in military detention until hostilities under the AUMF are terminated; (2) tried before
a military commission; (3) transferred from military custody for trial by another court having
jurisdiction; or (4) transferred to the custody of a foreign government or entity, provided the
(...continued)
Administration expressed concern about a provision corresponding to Section 1021 in the enacted 2012 NDAA,
cautioning that
Congress must be careful not to open a whole new series of legal questions that will distract from
our efforts to protect the country. While the current language minimizes many of those risks, future
legislative action must ensure that the codification in statute of express military detention authority
does not carry unintended consequences that could compromise our ability to protect the American
people.
Id.
79
transfer requirements established in Section 1028 of the act,85 discussed infra, are satisfied. If the
Administration wishes to prosecute a person covered by Section 1022 in a civilian trial, Section
1029 requires the Attorney General to first consult with the National Director of Intelligence and
84
As discussed supra, the term “lawful resident alien” is not defined by the 2012 NDAA or other federal statute, and
there may be some ambiguity as to who falls under this category.
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transfer requirements established in Section 1028 of the act,80 discussed infra, are satisfied. If the
Administration wishes to prosecute a person covered by Section 1022 in a civilian trial, Section
1029 requires the Attorney General to first consult with the National Director of Intelligence and
85
Section 1022 provides that persons subject to mandatory detention may be transferred to foreign countries only so
long as such transfers are “consistent with the requirements of section 1028” of the bill, which bars the transfer of
Guantanamo detainees to foreign countries unless certain certification requirements are met. Arguably, the interplay
between these two provisions could be read to mean that no person subject to the mandatory detention requirement of
Section 1022 may be transferred a foreign country unless the Secretary of Defense certifies that the transfer complies
with the criteria described under Section 1028, regardless of the current location of the person’s detention. The
Department of Defense appears to construe the interplay of Sections 1022 and 1028 in this fashion. See Letter from the
Secretary of Defense to Senator Carl Levin (November15, 2011) (hereinafter “DOD Letter”)(discussing relationship
between corresponding provisions in S. 1867), available at http://www.politico.com/static/
PPM229_111115_dodletter.html. On the other hand, it is possible that the certification requirement is only intended to
apply to those persons who are subject to mandatory detention under Section 1022 who are also currently being held at
Guantanamo. See also infra text accompanying footnote 91 (noting potential implications for the capture of suspected
Al Qaeda members during U.S. operations in Iraq or Afghanistan).
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the Secretary of Defense to determine whether a military commission is more appropriate and
whether the individual should be held in military custody pending trial.8186
Section 1022 applies both to members of Al Qaeda and “associated forces.”8287 The provision
further specifies that covered forces are ones that “act in coordination with or pursuant to the
direction of al-Qaeda.” The omission of any express reference to the Taliban in Section 1022
seems to indicate that it need not be treated as a force associated with Al Qaeda, at least unless its
actions are sufficiently coordinated or directed by Al Qaeda.8388 A question might arise if an
associated force acts largely independently but coordinates some activity with Al Qaeda. Would
all of its members be subject to mandatory detention, or only those involved in units which
coordinate their activities with Al Qaeda? Perhaps this determination can be made with reference
to the specific attack the individual is determined to have attempted, planned, or engaged. In any
event, Section 1022 would not apply to a “lone wolf” terrorist with no ties to Al Qaeda or any
associated force.
80
Section 1022 provides that persons subject to mandatory detention may be transferred to foreign countries only so
long as such transfers are “consistent with the requirements of section 1028” of the bill, which bars the transfer of
Guantanamo detainees to foreign countries unless certain certification requirements are met. Arguably, the interplay
between these two provisions could be read to mean that no person subject to the mandatory detention requirement of
Section 1022 may be transferred a foreign country unless the Secretary of Defense certifies that the transfer complies
with the criteria described under Section 1028, regardless of the current location of the person’s detention. The
Department of Defense appears to construe the interplay of Sections 1022 and 1028 in this fashion. See Letter from the
Secretary of Defense to Senator Carl Levin (November15, 2011) (hereinafter “DOD Letter”)(discussing relationship
between corresponding provisions in S. 1867), available at http://www.politico.com/static/
PPM229_111115_dodletter.html. On the other hand, it is possible that the certification requirement is only intended to
apply to those persons who are subject to mandatory detention under Section 1022 who are also currently being held at
Guantanamo. See also infra text accompanying footnote 86 (noting potential implications for the capture of suspected
Al Qaeda members during U.S. operations in Iraq or Afghanistan).
81
What conduct constitutes an “attack ... against the United States coalition partners” is not further
clarified.89 It could be read to cover only the kinds of attacks carried out in a military theater of
operations against armed forces, where the law of war is generally understood to permit the
military detention of such persons. This reading may be bolstered by the limitation of the
provision to persons who are “captured during the course of hostilities.” On the other hand, the
term “attack” might be interpreted to apply more broadly to cover terrorist acts directed against
civilian targets elsewhere, although the application of the law of war to such circumstances is
much less certain. It is unclear whether an effort to bring down a civilian airliner, for example,
necessarily constitutes an “attack against the United States.” The reference to the possibility that
lawful resident aliens may be detained based on conduct taking place in the United States
86
The consultation requirement also applies to the trial of any other person in military detention overseas under the
authority described in Section 1021, which could presumably apply to U.S. citizens.
8287
Although the final version of the 2012 NDAA uses “associated forces” (the same terminology that has been used to
define detention authority in habeas litigation), an earlier version of the defense authorization bill would have applied
to members of “affiliated entities.” S. 1253, §1032. “Affiliated entity” does not appear to have a set definition. The
recently released 2011 National Strategy for Counterterrorism (2011 Strategy), http://www.whitehouse.gov/sites/
default/files/counterterrorism_strategy.pdf distinguishes between “affiliates,” which are defined as “groups that have
aligned with” Al Qaeda, and “adherents,” which are “individuals who have formed collaborative relationships with, act
on behalf of, or are otherwise inspired to take action in furtherance of the goals of al-Qa‘ida—the organization and the
ideology—including by engaging in violence regardless of whether such violence is targeted at the United States, its
citizens, or its interests.” 2011 Strategy at 3. The 2011 Strategy also distinguishes “affiliates” from “associated forces”:
Affiliates is not a legal term of art. Although it includes Associated Forces, it additionally includes
groups and individuals against whom the United States is not authorized to use force based on the
authorities granted by the [AUMF]. The use of Affiliates in this strategy is intended to reflect a
broader category of entities against whom the United States must bring various elements of national
power, as appropriate and consistent with the law, to counter the threat they pose. Associated
Forces is a legal term of art that refers to cobelligerents of al-Qa‘ida or the Taliban against whom
the President is authorized to use force (including the authority to detain) based on the [AUMF]. Id.
at footnote 1.
8388
According to the conference report, the conferees agreed that the Taliban is covered by Section 1021 but not 1022.
H.Rept. 112-329 at 159.
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What conduct constitutes an “attack ... against the United States coalition partners” is not further
clarified.84 It could be read to cover only the kinds of attacks carried out in a military theater of
operations against armed forces, where the law of war is generally understood to permit the
military detention of such persons. This reading may be bolstered by the limitation of the
provision to persons who are “captured during the course of hostilities.” On the other hand, the
term “attack” might be interpreted to apply more broadly to cover terrorist acts directed against
civilian targets elsewhere, although the application of the law of war to such circumstances is
much less certain. It is unclear whether an effort to bring down a civilian airliner, for example,
necessarily constitutes an “attack against the United States.” The reference to the possibility that
lawful resident aliens may be detained based on conduct taking place in the United States
89
The presidential policy directive announcing procedures implementing Section 1022 defines an “attack” as “an act of
violence or the use of force that involves serious risk to human life,” with no further specification as to whether such an
act must occur in a military theater of operations. Presidential Directive on Section 1022, supra footnote 5, at 2.
However, it limits the scope of application of the procedures for implementing Section 1022 to persons arrested or
otherwise taken into custody by the FBI or other law enforcement agencies, id., suggesting that a broader interpretation
of “attack” may have been adopted.
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supports the broader reading of “attack.” Some proponents have suggested that the provision is
intended to cover cases such as that of Umar Farouk Abdulmutallab,8590 the Nigerian suspect
accused of trying to destroy an airliner traveling from Amsterdam to Detroit on Christmas Day
2009, although he was arrested by domestic law enforcement authorities, which suggests that the
bill is intended to consider future similar occurrences as “attacks against the United States” that
involve captures during the “course of hostilities.”
Because the mandatory detention requirement is related to hostilities authorized by the AUMF, it
would not seem to apply to insurgents who carried out attacks against U.S. or coalition targets in
Iraq (though it might be argued that the provision would apply to any perpetrators believed to be
members of Al Qaeda or an associated force).8691 This may raise questions if, for example, Ali
Musa Daqduq were to be extradited from Iraq to the United States. Daqduq, a suspected
Hezbollah militant from Lebanon, had been detained by the United States in Iraq prior to the end
of the formal U.S. military presence there, at which time an agreement with Iraq provided for the
transfer of detainees to Iraqi custody.8792 He is suspected of having orchestrated an attack against
U.S. soldiers in Iraq. Earlier suggestions on the part of the Administration that Daqduq might be
transferred for trial by military commission in the United States met with resistance in Congress,
some of whose Members advocated his transfer to Guantanamo in the event the United States
84
The presidential policy directive announcing procedures implementing Section 1022 defines an “attack” as “an act of
violence or the use of force that involves serious risk to human life,” with no further specification as to whether such an
act must occur in a military theater of operations. Presidential Directive on Section 1022, supra footnote 5, at 2.
However, it limits the scope of application of the procedures for implementing Section 1022 to persons arrested or
otherwise taken into custody by the FBI or other law enforcement agencies, id., suggesting that a broader interpretation
of “attack” may have been adopted.
85regains custody.93 Whether Section 1022 would apply to him if he comes into the custody of the
United States appears to depend on whether Hezbollah is an “associated force” within the
meaning of the AUMF that coordinates its activities sufficiently with Al Qaeda to meet the
requirements of Section 1022 and whether he is considered to have been captured during the
course of hostilities authorized by the AUMF (as opposed to the separate authorities applicable to
the conflict in Iraq).
In response to Administration objections to the mandatory detention provision originally found in
S. 1253, 112th Congress, a new requirement was established in S. 1867, 112th Congress, which
was ultimately included in the enacted version of the 2012 NDAA, that the President must submit
to Congress, within 60 days of enactment, a report describing the procedures for implementing
the mandatory detention provision. The procedural requirements were added to respond to
90
See, e.g., 157 CONG. REC. S8097 (daily ed. December 1, 2011) (statement of Sen. Ayotte). See also White House
Statement on S. 1867, supra footnote 2, at 2 (“Moreover, applying this military custody requirement to individuals
inside the United States, as some Members of Congress have suggested is their intention, would raise serious and
unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not
patrol our streets.”).
8691
Prior to the departure of most U.S. forces from Iraq, such persons would likely have been detained and turned over to
the Iraqi government for prosecution, in which case Section 1022 might have impeded such transfers to Iraq authorities
of any insurgent believed to be part of Al Qaeda, potentially hampering U.S.-Iraq relations. The application of the
provision in Afghanistan may have similar implications as the United States seeks to turn over detention operations to
the Afghan government. See Sieff, supra footnote 10 (describing efforts to transfer prisoners to Afghan judicial system
and eventually transfer control of Parwan detention facility altogether); Matthew Rosenberg, Karzai’s Ultimatum
Complicates U.S. Exit Strategy, NY TIMES, January 9, 2012, at A4 (reporting that President Karzai demanded that the
United States immediately cede control of the facility to his government after an Afghan commission documented
abuses, although most abuses apparently took place at the portion of the prison run by Afghan authorities).
87; US military
transfers Parwan detention centre to Afghan government control, GUARDIAN (UK), March 25, 2013, at
http://www.guardian.co.uk/world/2013/mar/25/us-military-parwan-prison-afghanistan (reporting that a new agreement
has permitted the handover to take place).
92
See Charlie Savage, U.S. Transfers Its Last Prisoner in Iraq to Iraqi Custody, NY TIMES, December 17, 2011, at
A11, available online at http://www.nytimes.com/2011/12/17/world/middleeast/us-transfers-last-prisoner-to-iraqigovernment.html?_r=1&hp.
93
Id.
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criticism that the measure would interfere with law enforcement and interrogation efforts, among
other perceived risks. The submission was required to include procedures for designating who is
authorized to determine who is a covered person for the purpose of the provision and the process
by which such determinations are to be made. Other procedures to be described include those for
preventing the interruption of ongoing surveillance or intelligence gathering with regard to
persons not already in the custody or control of the United States; precluding implementation of
the determination process until after any ongoing interrogation session is completed and
precluding the interruption of an interrogation session; precluding application of the provision in
the case of an individual who remains in the custody of a third country, where U.S. government
officials are permitted access to the individual; and providing for an exercise of waiver authority
to accomplish the transfer of a covered person from a third country, if necessary. This requirement
applies only to persons taken into custody on : Detainee Matters
regains custody.88 Whether Section 1022 would apply to him if he comes into the custody of the
United States appears to depend on whether Hezbollah is an “associated force” within the
meaning of the AUMF that coordinates its activities sufficiently with Al Qaeda to meet the
requirements of Section 1022 and whether he is considered to have been captured during the
course of hostilities authorized by the AUMF (as opposed to the separate authorities applicable to
the conflict in Iraq).
In response to Administration objections to the mandatory detention provision originally found in
S. 1253, a new requirement was established in S. 1867, which was ultimately included in the
enacted version of the 2012 NDAA, that the President must submit to Congress, within 60 days of
enactment, a report describing the procedures for implementing the mandatory detention
provision. The procedural requirements were added to respond to criticism that the measure
would interfere with law enforcement and interrogation efforts, among other perceived risks. The
submission is required to include procedures for designating who is authorized to determine who
is a covered person for the purpose of the provision and the process by which such determinations
are to be made. Other procedures to be described include those for preventing the interruption of
ongoing surveillance or intelligence gathering with regard to persons not already in the custody or
control of the United States; precluding implementation of the determination process until after
any ongoing interrogation session is completed and precluding the interruption of an interrogation
session; precluding application of the provision in the case of an individual who remains in the
custody of a third country, where U.S. government officials are permitted access to the individual;
and providing for an exercise of waiver authority to accomplish the transfer of a covered person
from a third country, if necessary. This requirement applies only to persons taken into custody on
or after the 2012 NDAA’s date of enactment.
It is not clear how these procedures will interact with those contemplated under Section 1024
(discussed more fully infra), which requires DOD to submit to Congress procedures for status
determinations for persons detained pursuant to the AUMF for purposes of Section 1021. If the
procedures required by Section 1022 are meant to determine whether a person is detainable under
the AUMF (per Section 1021) as an initial matter (as opposed to determining the appropriate
disposition under the law of war), then it would seem necessary for that determination to take
place prior to the procedures for determining whether a person’s detention is required under
Section 1022.8994 The act does not appear to preclude the implementation of more than one process
for making the determination that someone qualifies as a covered person subject to mandatory
military detention, perhaps depending on whether the person is initially in military custody or the
custody of law enforcement officials. Nor does it seem to preclude the use of a single procedure
to determine whether a person is covered by Section 1022 and the appropriate disposition under
the law of war, which could obviate the necessity for transferring a person to military custody.
Whatever process is adopted to make any of these determinations would likely implicate
constitutional due process requirements, at least if the detainee is located within the United States
or is a U.S. citizen, and would likely be subject to challenge by means of habeas corpus.9095 Section
88
Id.1022 does not prevent Article III trials of covered persons,96 although any time spent in military
custody could complicate the prosecution of a covered defendant.97
94
If the Administration concludes that existing law and authority with respect to persons arrested within the United
States does not support their treatment as persons detainable under the AUMF as described under Section 1021, it may
be able to avoid determining whether any who are non-U.S. citizens are subject to the provisions of Section 1022.
9095
The ability of a detainee to bring a habeas petition under Section 1036 may depend upon his location. Compare
Boumediene v. Bush, 553 U.S. 723 (2008) (constitutional writ of habeas extends to non-citizen detainees held at
Guantanamo) with Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010) (writ of habeas does not presently extend to noncitizen detainees held by the United States in Afghanistan).
89
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1022 does not prevent Article III trials of covered persons,91 although any time spent in military
custody could complicate the prosecution of a covered defendant.92
The Obama Administration has opposed this provision, even as the language was revised.93
During Senate deliberation concerning S. 1867, the White House claimed that its mandatory
military detention requirement constituted an “unnecessary, untested, and legally controversial
restriction of the President’s authority to defend the Nation from terrorist threats” that would “tie
the hands of our intelligence and law enforcement professionals.”9496
No funds authorized to be appropriated under the 2012 NDAA were permitted to be used to transfer detainees to the
United States from Guantanamo for trial. Subsequent appropriations and authorization enactments effectively extended
the bar on detainee transfers through FY2013. See FY2013 Consolidated and Full Year Continuing Appropriations Act,
P.L. 113-6, Div. B, §530 and Div. C., §8109; 2013 NDAA, P.L. 112-239, §1027.
97
There has been one case of an individual who was transferred from Guantanamo to the United States for prosecution
on terrorism charges. Ahmed Khalfan Ghailani was indicted in 1998 and charged with conspiracy in connection with
the bombing of the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. He was arrested in
Pakistan in 2004 and turned over to U.S. custody to be held and interrogated by Central Intelligence Agency (CIA)
officials. In 2006, he was transferred to DOD custody and held as an enemy combatant at Guantanamo. He was
transferred to the Southern District of New York for trial in 2009, and was subsequently convicted and sentenced to life
imprisonment, despite his efforts to quash the prosecution on numerous grounds related to his detention. For more
information, see CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court
(continued...)
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The Obama Administration opposed this provision, even as the language was revised.98 During
Senate deliberation concerning S. 1867, 112th Congress, the White House claimed that its
mandatory military detention requirement constituted an “unnecessary, untested, and legally
controversial restriction of the President’s authority to defend the Nation from terrorist threats”
that would “tie the hands of our intelligence and law enforcement professionals.”99
However, a new proviso was added in conference, which, along with a shift of waiver authority
from the Secretary of Defense to the President, apparently reduced Administration concerns to the
extent necessary to avert a veto.95100 Section 1022, as it emerged from conference, provides that it is
is not to be construed “to affect the existing criminal enforcement and national security authorities
authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency
with regard
to a covered person, regardless whether such covered person is held in military
custody.” While
FBI Director Robert Mueller expressed concern that the provision, even as
revised in conference,
could create confusion as to the FBI’s role in responding to a terrorist
attack,96101 the White House
issued a statement explaining that, as a result of changes made in
conference (as well as some that
had been made prior to Senate passage): “[W]e have concluded
that the language does not
challenge or constrain the President’s ability to collect intelligence,
incapacitate dangerous
terrorists, and protect the American people, and the President’s senior
advisors will not
recommend a veto.”97
91
No funds authorized to be appropriated under the act may be used to transfer detainees to the United States from
Guantanamo for trial. Moreover, no FY2012 funds authorized to be appropriated under any Act may be used for that
purpose under the 2012 Minibus, P.L. 112-55, §532.
92
There has been one case of an individual who was transferred from Guantanamo to the United States for prosecution
on terrorism charges. Ahmed Khalfan Ghailani was indicted in 1998 and charged with conspiracy in connection with
the bombing of the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. He was arrested in
Pakistan in 2004 and turned over to U.S. custody to be held and interrogated by Central Intelligence Agency (CIA)
officials. In 2006, he was transferred to DOD custody and held as an enemy combatant at Guantanamo. He was
transferred to the Southern District of New York for trial in 2009, and was subsequently convicted and sentenced to life
imprisonment, despite his efforts to quash the prosecution on numerous grounds related to his detention. For more
information, see CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court
Rulings, by Jennifer K. Elsea and Michael John Garcia.
93
For example, during Senate consideration of S. 1867, Secretary of Defense Panetta expressed doubt that its
recommend a veto.”102
However, the statement also warned that “if in the process of implementing this law we determine
that it will negatively impact our counterterrorism professionals and undercut our commitment to
the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to
correct these problems.”103
When signing the 2012 NDAA into law, President Obama expressed strong disapproval of
Section 1022, describing it as “ill-conceived and … [doing] nothing to improve the security of the
United States.”104 Nonetheless, the President characterized the Section 1022 as providing “the
minimally acceptable amount of flexibility to protect national security,” and claimed that he
(...continued)
Rulings, by Jennifer K. Elsea and Michael John Garcia.
98
For example, during Senate consideration of S. 1867, 112th Cong., Secretary of Defense Panetta expressed doubt that
its mandatory military detention provision offered any advantage to DOD or to U.S. national security interests, predicting
predicting instead that it would restrain the executive branch’s option to make effective use of all available
counterterrorism tools.
Moreover, Secretary Panetta objected to the provision’s failure to clearly limit its scope to
persons captured abroad;
complained that the qualification to “associated force” (limiting mandatory detention to
members of such groups that
coordinate with or act under the direction of Al Qaeda) unnecessarily complicates the
Department’s ability to interpret
and implement the restriction; and viewed as inappropriate the possible extension of
the transfer certification
requirements of Section 1033 (now Section 1028) to those covered by Section 1032 (now
Section 1022) who are not
currently detained at Guantanamo. See DOD Letter, supra footnote 80.
9485.
99
See White House Statement on S. 1867, supra footnote 2, at 2.
95100
White House Press Briefing by Press Secretary Jay Carney, December 15, 2011, available at
http://www.whitehouse.gov/the-press-office/2011/12/15/press-briefing-press-secretary-jay-carney-12152011.
96101
See FBI Oversight, Hearing before the Senate Committee on the Judiciary, 112th Cong. 2d Sess. (December 14,
2011)(Statement of FBI Director Robert Mueller), transcript available at 2011 WL 6202873.
97102
Statement from the White House Press Secretary on the NDAA Bill, December 14, 2011, printed in National
Defense Authorization Act for Fiscal Year 2012-—Conference Report, 157 CONG. REC. 157 CONG. REC. S8632-01,
S8664 (2011).
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However, the statement also warned that “if in the process of implementing this law we determine
that it will negatively impact our counterterrorism professionals and undercut our commitment to
the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to
correct these problems.”98
When signing the 2012 NDAA into law, President Obama expressed strong disapproval of
Section 1022, describing it as “ill-conceived and … [doing] nothing to improve the security of the
United States.”99 Nonetheless, the President characterized the Section 1022 as providing “the
minimally acceptable amount of flexibility to protect national security,” and claimed that he
S8664 (2011).
103
Id.
104
Presidential Signing Statement on 2012 NDAA, supra footnote 4.
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would interpret and apply it so as to best preserve executive discretion when determining the
appropriate means for dealing with a suspected terrorist in U.S. custody:
Specifically, I have signed this bill on the understanding that section 1022 provides the
executive branch with broad authority to determine how best to implement it, and with the
full and unencumbered ability to waive any military custody requirement, including the
option of waiving appropriate categories of cases when doing so is in the national security
interests of the United States. As my Administration has made clear, the only responsible
way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the
factual and legal complexities of each case and the relative strengths and weaknesses of each
system. Otherwise, investigations could be compromised, our authorities to hold dangerous
individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result,
and under no circumstances will my Administration accept or adhere to a rigid across-theboard requirement for military detention. I will therefore interpret and implement section
1022 in the manner that best preserves the same flexible approach that has served us so well
for the past 3 years and that protects the ability of law enforcement professionals to obtain
the evidence and cooperation they need to protect the Nation.100105
On February 28, 2012, President Obama issued a directive concerning the implementation of
Section 1022, and announcing circumstances in which the mandatory detention requirements
would be waived. This directive is discussed in more detail infra at “Developments Since the
Enactment of the 2012 NDAA.”
Periodic Review of Detention of Persons at Guantanamo
Section 1023 addresses Executive Order 13567, pertaining to detention reviews at Guantanamo.
Unlike H.R. 1540, as originally passed by the House of Representatives,101 the corresponding
98
Id.
Presidential Signing Statement on 2012 NDAA, supra footnote 4.
100
Id.
101
106 the corresponding
Senate provision incorporated into the enacted 2012 NDAA does not seek to replace the periodic
review process established by the order, as a corresponding House provision would have done,107
but instead seeks to clarify aspects of the process. Section 1023 requires the Secretary of Defense,
within 180 days of enactment, to submit to the congressional defense and intelligence committees
105
Id.
Among other things, the review process contemplated by Section 1036 of H.R. 1540, as initially passed by the
House during the 112th Congress, would have required that the initial review panel consist of military officers rather
than senior officials from
multiple agencies; imposed more detailed and stringent criteria for assessing whether an
individual’s continued
detention is no longer warranted; and limited the assistance private counsel may provide to
detainees. Section 1036 also
would have required the establishment of an interagency review board, composed of
senior officials of the Department
of State, the Department of Defense, the Department of Justice, the Department of
Homeland Security, the Joint Chiefs
of Staff, and the Office of the Director of National Intelligence. The interagency
review board was to be responsible for
reviewing the military panel’s review for clear error. In a written statement
regarding H.R. 1540, the White House
identified Section 1036 as one of several provisions within the bill that might
contribute to a decision to veto. It
asserted that the periodic review process established by Section 1036
undermines the system of periodic review established by the President’s ... Executive Order by
(continued...)
99
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Senate provision incorporated into the enacted 2012 NDAA does not seek to replace the periodic
review process established by the order, as a corresponding House provision would have done,102
but instead seeks to clarify aspects of the process. Section 1023 requires the Secretary of Defense,
within 180 days of enactment, to submit to the congressional defense and intelligence committees
substituting a rigid system of review that could limit the advice and expertise of critical intelligence
and law enforcement professionals, undermining the Executive branch’s ability to ensure that these
decisions are informed by all available information and protect the full spectrum of our national
security interests. It also unnecessarily interferes with DOD’s ability to manage detention
operations.
White House Statement on H.R. 1540, supra footnote 2, at 2-3.
107
H.R. 1540 (as initially passed by the House, 112th Cong.) §1036.
106
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a report setting forth procedures to be employed by review panels established pursuant to
Executive Order 13567. The provision requires that these new review procedures to
•
clarify that the purpose of the periodic review is not to review the legality of any
particular detention, but to determine whether a detainee poses a continuing
threat to U.S. security;
•
clarify that the Secretary of Defense, after considering the results and
recommendations of a reviewing panel, is responsible for any final decision to
release or transfer a detainee and is not bound by the recommendations; and
•
ensure that appropriate consideration is given to a list of factors, including the
likelihood the detainee will resume terrorist activity or rejoin a group engaged in
hostilities against the United States; the likelihood of family, tribal, or
government rehabilitation or support for the detainee; the likelihood the detainee
may be subject to trial by military commission; and any law enforcement interest
in the detainee.
The Administration had objected to this provision because it said it would shift to the Defense
Department the responsibility for what had been a collaborative, interagency review process.103108
The provision was modified in conference to clarify that the procedures apply to “any individual
who is detained as an unprivileged enemy belligerent at Guantanamo at any time on or after the
date of enactment” of the act.
The conference report for the 2012 NDAA explains that the conferees understood that the review
process
established by the Executive Order is not a legal proceeding and does not create any
discovery rights in the detainee, his personal representative, or private counsel. For this
reason, the conferees expect the procedures established under this section to provide that: (1)
the compilation of information for the review process should be conducted in good faith, but
does not create any rights on behalf of the detainee; (2) the mitigating information to be
provided to the detainee is information compiled in the course of this good faith compilation
effort; (3) the decision whether to permit the calling of witnesses and the presentation of
statements by persons other than the detainee is discretionary, and not a matter of right; and
(4) access to classified information on the part of private counsel is subject to national
security constraints, clearance requirements, and the availability of resources to review and
clear relevant information.
(...continued)
substituting a rigid system of review that could limit the advice and expertise of critical intelligence
and law enforcement professionals, undermining the Executive branch’s ability to ensure that these
decisions are informed by all available information and protect the full spectrum of our national
security interests. It also unnecessarily interferes with DOD’s ability to manage detention
operations.
White House Statement on H.R. 1540, supra footnote 2, at 2-3.
102
H.R. 1540 (as initially passed by the House) §1036.
103
White House Statement on S. 1867, supra footnote 2, at 2.
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In a statement issued upon signing the 2012 NDAA into law, President Obama characterized this
provision as “needlessly interfere[ing] with the executive branch’s processes for reviewing the
status of detainees.”104109
Status Determination of Wartime Detainees
Section 1024 of the 2012 NDAA, which tracks a provision contained in S. 1867, 112th Congress,
requires the
Secretary of Defense, within 90 days of enactment, to submit a report to
congressional defense
and intelligence committees explaining the procedures for determining the status of persons
108
109
White House Statement on S. 1867, supra footnote 2, at 2.
Presidential Signing Statement on 2012 NDAA, supra footnote 4.
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status of persons detained under the AUMF for purposes of Section 1021 of the Senate bill. It is
not clear whether
the status determination “for purposes of section 1021” means determination of
whether a
detained individual is a “covered person” subject to Section 1021, or whether it is
meant to refer
to the disposition of such a person under the law of war, or to both.105110
In the case of any unprivileged enemy belligerent who will be held in long-term detention, clause
(b) of the provision requires the procedures to provide the following elements:
(1) A military judge shall preside at proceedings for the determination of status of an
unprivileged enemy belligerent.
(2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented
by military counsel at proceedings for the determination of status of the belligerent.
The requirements of this provision apply without regard to the location where the detainee is held.
It would appear to afford detainees held by the United States in Afghanistan greater privileges
during status determination hearings than they currently possess (at least in circumstances where
the United States intends to place them in “long-term detention,” in which case the requirements
of Section 1024(b) are triggered).106111 It is not clear what effect this provision would have upon
detainees currently held at Guantanamo, who were designated as “enemy combatants” subject to
military detention using a status review process that did not fully comply with the requirements of
Section 1024(b).107112 The version of Section 1024 reported out of conference modified the
provision to explain that the procedures applicable in the case of long-term detention need not
apply to persons for whom habeas corpus review is available in federal court, which suggests it
does not apply to Guantanamo detainees. According to the explanatory material in the conference
report, the Secretary of Defense is authorized to determine what constitutes “long-term detention”
as well as the “the extent, if any, to which such procedures will be applied to detainees for whom
status determinations have already been made prior to” the date of enactment.
104
Presidential Signing Statement on 2012 NDAA, supra footnote 4.The provision does not explain, in the case of new captures, how it is to be determined prior to
the status hearing whether a detainee is one who will be held in long-term detention and whose
hearing is thus subject to special requirements, but “long-term detention” could be interpreted
with reference to law of war principles to refer to enemy belligerents held for the duration of
hostilities to prevent their return to combat, a permissible “disposition under the law of war”
under Sections 1021 and 1022 of the bill.113 This reading, however, suggests that the disposition
determination is to be made prior to a status determination, which seems counterintuitive, or that
a second status determination is required for those designated for long-term detention.
110
The language of Section 1024 largely mirrors that originally found in Section 1036 of S. 1253. The revised language
omits reference to “unprivileged enemy belligerent” to modify “status” in the heading, but this alteration does not
appear to affect the meaning of the provision itself. The original version applied to persons captured in the course of
hostilities authorized by the AUMF rather than those detained pursuant to it, which seemed to indicate that it was meant
to be an initial status determination only for those newly captured. On the other hand, explanatory language in the
conference report described the Senate provision, Section 1036, as requiring the Secretary of Defense “to establish
procedures for determining the status of persons captured in the course of hostilities authorized by [the AUMF],”
H.Rept. 112-329 at 160 (emphasis added), which suggests that conferees did not attach much significance to the phrase
“captured in the course of hostilities” as a limitation on the provision’s coverage.
106111
See supra citations contained in footnote 46.
107
See supra section headed “Status Determinations for Unprivileged Enemy Belligerents.”
105
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The provision does not explain, in the case of new captures, how it is to be determined prior to
the status hearing whether a detainee is one who will be held in long-term detention and whose
hearing is thus subject to special requirements, but “long-term detention” could be interpreted
with reference to law of war principles to refer to enemy belligerents held for the duration of
hostilities to prevent their return to combat, a permissible “disposition under the law of war”
under Sections 1021 and 1022 of the bill.108 This reading, however, suggests that the disposition
determination is to be made prior to a status determination, which seems counterintuitive, or that
a second status determination is required for those designated for long-term detention.
49.
112
See supra section headed “Status Determinations for Unprivileged Enemy Belligerents.”
113
Unlike the corresponding provision in S. 1253, Section 1031 of S. 1867 does not use “long-term” to modify
“detention under the law of war.”
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Explanatory material in the conference report indicates that the long-term procedures might not
be triggered by an initial review after capture, but might be triggered by subsequent reviews, at
the discretion of the Secretary of Defense. This remark suggests that both the initial determination
that a person may be detained as well as any subsequent process for determining the appropriate
disposition of the detainee are meant to be covered, but that the requirement for additional rights
for long-term detainees may apply only in limited circumstances.109114 Captured unprivileged enemy
belligerents destined for trial by military commission or Article III court, or to be transferred to a
foreign country or entity, would not appear to be entitled to be represented by military counsel or
to have a military judge preside at their status determination proceedings.
The White House has expressed disapproval of this provision. Prior to enactment, the Obama
Administration claimed that the provision would establish “onerous requirements [and] conflict[]
with procedures for detainee reviews in the field that have been developed based on many years
of experience by military officers and the Department of Defense.”110115 When signing the 2012
NDAA into law, President Obama declared that, “consistent with congressional intent as detailed
in the Conference Report,” the executive branch would “interpret section 1024 as granting the
Secretary of Defense broad discretion to determine what detainee status determinations in
Afghanistan are subject to the requirements of this section.”111116
Security Protocols for Guantanamo Detainees
Section 1025 contains a modified requirement that originated as Section 1035 in the House bill,
which would have required the Secretary of Defense to submit a detailed “national security
protocol” pertaining to the communications of each individual detained at Guantanamo within 90
days of enactment. The conference report amended the provision to require a single protocol, to
be submitted within 180 days, covering the policy and procedures applicable to all detainees at
Guantanamo. The protocol is required to describe an array of limitations or privileges applicable
to detainees regarding access to military or civilian legal representation, communications with
counsel or any other person, receipt of information, possession of contraband and the like, as well
as applicable enforcement measures. The provision specifically requires a description of
monitoring procedures for legal materials or communications for the protection of national
security while also preserving the detainee’s privilege to protect such materials and
communications in connection with a military commission trial or habeas proceeding. In
108
Unlike the corresponding provision in S. 1253, Section 1031 of S. 1867 does not use “long-term” to modify
“detention under the law of war.”
109
H.Rept. 112-329 at 160.
110
White House Statement on S. 1867, supra footnote 2, at 3.
111
Presidential Signing Statement on 2012 NDAA, supra footnote 4.
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President Obama’s signing statement for the 2012 NDAA, he characterized this provision as
needlessly interfering with executive branch processes for reviewing the status of detainees.112117
Transfer or Release of Wartime Detainees into the United States
While not directly limiting the transfer or release of detainees into the United States, Section 1026
prohibits the use of any funds made available to the Department of Defense for FY2012 to
construct or modify any facility in the United States, its territories, or possessions to house an
individual detained at Guantanamo for “detention or imprisonment in the custody or under the
114
H.Rept. 112-329 at 160.
White House Statement on S. 1867, supra footnote 2, at 3.
116
Presidential Signing Statement on 2012 NDAA, supra footnote 4.
117
Id.
115
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control of the Department of Defense.” Substantially similar restrictions are contained in the 2012
Minibus and 2012 CAA113CAA118 (these restrictions have beenwere effectively extended until March 27,
2013, by the 2013 CAR114) 2013, by
the 2013 CAR,119 and until the end of FY2013 by the 2013 NDAA and the FY2013 Consolidated
and Full Year Continuing Appropriations Act)120.
Section 1027 prohibits the expenditure of DOD funds for FY2012 from being used to transfer or
assist in the transfer of detainees from Guantanamo into the United States. It is derived from a
much broader restriction in Section 1039 of the House bill, which would have limited the transfer
or release into the United States of any non-citizen detainees held abroad in U.S. military
custody.115121
Section 1027 is a continuation of transfer restrictions from prior legislation. In response to the
Obama Administration’s stated plan to close the Guantanamo detention facility and transfer at
least some detainees into the United States, Congress has enacted several funding measures
intended to limit executive discretion to transfer or release Guantanamo detainees into the United
States. Initially, these measures barred detainees from being released into the United States, but
still preserved executive discretion to transfer detainees into the country for purposes of criminal
prosecution.116122 However, more recent funding limitations, including those contained in the 2012
Minibus and the 2012 CAA, prohibit the transfer of Guantanamo detainees into the United States
for any purpose, including criminal prosecution.117 These restrictions123 This version of the restriction has been
extended until the end of FY2013 by the 2013 NDAA.124 The measures appear to have been
motivated in part by the Administration’s plans to transfer Khalid Sheik Mohammed and several
other Guantanamo detainees to the United States to stand trial in an Article III court. As no
civilian court operates at Guantanamo, the 2012 Minibus, 2012 CAA, and the 2012 NDAA
appearlegislation appears to have effectively made military
commissions the only viable forum for the criminal
prosecution of Guantanamo detainees, at least
until the end of FY2012FY2013.
During congressional deliberations over H.R. 1540, as originally passed by the House, the
during the
112th Congress, the Obama Administration issued a statement expressing opposition to the
provision in the bill which
barred the transfer of detainees into the United States.118125 While stating its opposition to the release
112
Id.
118
2012 Minibus, P.L. 112-55, §533; 2012 CAA, P.L. 112-74, §§511, 8121.
114
Continuing Appropriations Resolution, P.L. 112-175 (generally extending funding for various agencies subject to
the same conditions and restrictions imposed by the 2012 CAA or 2012 Minibus).
115120
P.L. 112-239, §1022.
121
The restriction also generally precludes the transfer or release of detainees to U.S. territories or possessions.
116122
For further discussion of these limitations, see CRS Report R40754, Guantanamo Detention Center: Legislative
Activity in the 111th Congress, by Michael John Garcia.
117123
2012 Minibus, P.L. 112-55, §532; 2012 CAA, P.L. 112-74, §§511, 8119. See also 2011 NDAA, P.L. 111-383,
§1032 (expired at the end of FY2011); 2011 CAA, P.L. 112-10, §1112 (extended beyond FY2011 and through
December 16, 2011, via Division D of the 2012 Minibus).
118
Upon signing the 2011 NDAA and CAA into law, which each imposed blanket restrictions on the transfer or release
(continued...)
113
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of detainees into the United States, the Obama Administration claimed that the measure would
unduly interfere with executive discretion to prosecute detainees in an Article III court located in
the United States. According to a White House statement, the restriction on any detainee transfers
124
2013 NDAA, P.L. 112-239, §1027; FY2013 Consolidated and Full Year Continuing Appropriations Act, P.L. 113-6,
Div. B, §530 and Div. C., §8109.
125
Upon signing the 2011 NDAA and CAA into law, which each imposed blanket restrictions on the transfer or release
of Guantanamo detainees into the United States, President Obama issued statements expressing his disapproval of the
restrictions they imposed upon executive discretion to bring detainees into the country for trial before an Article III
court. White House Office of the Press Secretary, Statement by the President on H.R. 6523, January 7, 2011, available
at http://www.whitehouse.gov/the-press-office/2011/01/07/statement-president-hr-6523; White House Office of the
Press Secretary, Statement by the President on H.R. 1473, April 15, 2011, available at http://www.whitehouse.gov/thepress-office/2011/04/15/statement-president-hr-1473.
119
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its opposition to the release of detainees into the United States, the Obama Administration
claimed that the measure would unduly interfere with executive discretion to prosecute detainees
in an Article III court located in the United States. According to a White House statement, the
restriction on any detainee transfers into the country would be
a dangerous and unprecedented challenge to critical Executive branch authority to determine
when and where to prosecute detainees, based on the facts and the circumstances of each
case and our national security interests. It unnecessarily constrains our Nation’s
counterterrorism efforts and would undermine our national security, particularly where our
Federal courts are the best—or even the only—option for incapacitating dangerous
terrorists.119126
The modification in conference to encompass only Guantanamo detainees, as previous legislation
had already done, rather than to all detainees in military custody abroad was apparently sufficient
to overcome the veto threat. Nonetheless, President Obama stated when signing the 2012 NDAA
that he remained opposed to the provision, as it intrudes upon “critical executive branch authority
to determine when and where to prosecute Guantanamo detainees.”120127 He also asserted that the
provision could, “under certain circumstances, violate constitutional separation of powers
principles,” but did not specify a situation where such a conflict may arise. He further claimed
that when Section 1027 would operate in a manner violating separation of powers principle, his
Administration would interpret the provision to avoid a constitutional conflict.
Transfer or Release of Guantanamo Detainees to Foreign Countries
Section 1028 limits funds made available to the DOD for the 2012 fiscal year from being used to
transfer or release of Guantanamo detainees to foreign countries or entities, except when certain
criteria are met. These limitations do not apply in cases where a Guantanamo detainee is
transferred or released to effectuate a court order (i.e., when a habeas court finds that a detainee is
not subject to detention under the AUMF and orders the government to effectuate his release from
custody). The restrictions established by Section 1028 largely mirror those contained in the 2012
CAA,121128 both of which remained in effect for the duration of the 2012 fiscal year (and which were
effectively extended by continuing resolution until March 27, 2013, by the 2013 CAR122), as well
CAR,129 and
until the end of FY2013 by the 2013 NDAA and the FY2013 Consolidated and Full Year
Continuing Appropriations Act130), as well as those restrictions which were contained in the Ike
Skelton National Defense Authorization Act
for FY2011 (2011 NDAA; P.L. 111-383) and the
Department of Defense and Full-Year
Continuing Appropriations Act, 2011 (2011 CAA; P.L. 112-1011210), which had been set to expire at
the end of FY2011.123 Congressional notification requirements relating to detainee transfers
(...continued)
of Guantanamo detainees into the United States, President Obama issued statements expressing his disapproval of the
restrictions they imposed upon executive discretion to bring detainees into the country for trial before an Article III
court. White House Office of the Press Secretary, Statement by the President on H.R. 6523, January 7, 2011, available
at http://www.whitehouse.gov/the-press-office/2011/01/07/statement-president-hr-6523; White House Office of the
Press Secretary, Statement by the President on H.R. 1473, April 15, 2011, available at http://www.whitehouse.gov/thepress-office/2011/04/15/statement-president-hr-1473.
119
131 Congressional notification
126
White House Statement on H.R. 1540, supra footnote 2, at 2.
120
Presidential Signing Statement on 2012 NDAA, supra footnote 4.
121128
2012 CAA, P.L. 112-74, §8120.
122129
Continuing Appropriations Resolution, 2013 (P.L. 112-175) (generally extending funding restrictions imposed by
2012 CAA or 2012 Minibus until March 27, 2013).
123
Most of the applicable restrictions on detainee transfers contained in the 2011 NDAA and CAA concern funds made
(continued...)
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which were subsequently established by the Intelligence Authorization Act for FY2012 (P.L. 11287) do not modify existing legislative restrictions on transfers from Guantanamo.124130
P.L. 112-239, §1028; FY2013 Consolidated and Full Year Continuing Appropriations Act, P.L. 113-6, Div. C.,
§8110.
131
Most of the applicable restrictions on detainee transfers contained in the 2011 NDAA and CAA concern funds made
available for FY2011 (which ended on September 30, 2011). However, the 2011 NDAA’s prohibition on the transfer of
detainees to any country where there has been a confirmed case of recidivism by a previously transferred detainee
expired in January 2012. 2011 NDAA, P.L. 111-383, §1333(c) (specifying that prohibition lasts for a one-year period
beginning on the date of enactment). The restrictions contained in the 2011 CAA were temporarily extended via
(continued...)
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requirements relating to detainee transfers which were subsequently established by the
Intelligence Authorization Act for FY2012 (P.L. 112-87) do not modify existing legislative
restrictions on transfers from Guantanamo.132
Restrictions on Guantanamo detainee transfers appear motivated by congressional concern over
possible recidivism by persons released from U.S. custody.125133 Supporters of these funding
restrictions argue that they significantly reduce the chance that a detainee will reengage in
terrorist activity if released, while critics argue that they are overly stringent and hamper the
executive’s ability to transfer even low-risk detainees from U.S. custody. In any event, no
Guantanamo detainee has been transferred or released from U.S. custody since the 2011 NDAA
and CAA went into effect, though the degree to which these restrictions are responsible for the
lack of subsequent detainee transfers is unclear.
Under the requirements of Section 1028, in order for a transfer to occur, the Secretary of Defense
must first certify to Congress that the destination country or entity
•
is not a designated state sponsor of terrorism or terrorist organization;
•
maintains control over each detention facility where a transferred detainee may
be housed;
•
is not facing a threat likely to substantially affect its ability to control a
transferred detainee;
•
has agreed to take effective steps to ensure that the transferred person does not
pose a future threat to the United States, its citizens, or its allies;
•
has agreed to take such steps as the Secretary deems necessary to prevent the
detainee from engaging in terrorism; and
•
has agreed to share relevant information with the United States related to the
transferred detainee that may affect the security of the United States, its citizens,
or its allies.
These certification requirements virtually mirror those contained in the 2011 NDAA and CAA,126134
as well as those currently in place pursuant to the 2012 CAA. A House provision that would have
established an additional requirement that the receiving foreign entity agree to permit U.S.
authorities to have access to the transferred individual was not included in the conference report.
(...continued)
available for FY2011 (which ended on September 30, 2011). However, the 2011 NDAA’s prohibition on the transfer of
detainees to any country where there has been a confirmed case of recidivism by a previously transferred detainee
expires in January 2012. 2011 NDAA, P.L. 111-383, §1333(c) (specifying that prohibition lasts for a one-year period
beginning on the date of enactment). The restrictions contained in the 2011 CAA were temporarily extended viaSection 1028 also generally prohibits transfers from Guantanamo to any foreign country or entity
if there is a confirmed case of a detainee previously transferred to that place or entity who has
(...continued)
continuing resolution beyond the 2011 fiscal year. 2012 Minibus, P.L. 112-55, Div. D (generally extended funding for
federal agencies pursuant to the terms and conditions of the 2011 CAA through December 16, 2011).
124132
Intelligence Authorization Act for FY2012, P.L. 112-87, §308 (requiring congressional notification 30 days before a
Guantanamo detainee may be transferred or released to a foreign country, and specifying that this requirement does not
modify transfer restrictions established by the 2012 NDAA).
125133
The DNI reported in December 2010 that 13.5% of released Guantanamo detainees were “confirmed” and 11.5%
were “suspected” of “reengaging in terrorist or insurgent activities after transfer.” 2010 DNI Recidivism Summary,
supra footnote 5862. A subsequent report released in July 2012 claimed that 15.8% were confirmed and 12.1% were
suspected of reengaging in terrorist or insurgent activities. 2012 DNI Recidivism Summary, supra footnote 66.
12670.
134
2011 NDAA, P.L. 111-383, §1033; 2011 CAA, P.L. 112-10, §1013.
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: Detainee Matters
Section 1028 also generally prohibits transfers from Guantanamo to any foreign country or entity
if there is a confirmed case of a detainee previously transferred to that place or entity who has
subsequently engaged in any terrorist activity. The prohibition does not apply in the case of
detainees who are being transferred pursuant to either a pretrial agreement in a military
commission case, if entered prior to the enactment, or a court order.
Both the certification requirement and the bar related to recidivism may be waived if the
Secretary of Defense determines, with the concurrence of the Secretary of State and in
consultation with the Director of National Intelligence, that alternative actions will be taken to
address the underlying purpose of the measures, or that, in the event that agreements or actions on
the part of the receiving state or entity cannot be certified as eliminating all relevant risks,
alternative actions will substantially mitigate the risk.127135 In the case of a waiver of the provision
barring transfers anywhere recidivism has occurred, the Secretary may issue a waiver if
alternative actions will be taken to mitigate the risk of recidivism. Any transfer pursuant to a
waiver must be determined to be in the national security interests of the United States. Not later
than 30 days prior to the transfer, copies of the determination and the waiver must be submitted to
the congressional defense committees, together with a statement of the basis for regarding the
transfer as serving national security interests; an explanation why it is not possible to certify that
all risks have been eliminated (if applicable); and a summary of the alternative actions
contemplated.
The transfer restrictions in Section 1028 generally apply to any “individual detained at
Guantanamo,” other than a U.S. citizen or servicemember;128136 a detainee transferred pursuant to a
court order; or a detainee transferred pursuant to a military commission pretrial agreement
entered prior to the 2012 NDAA’s enactment. This term appears broad enough in scope to cover
foreign refugees brought to the Migrant Operations Center at Guantanamo after being interdicted
at sea while attempting to reach U.S. shores. Whether Section 1028 or successive legislation
would be interpreted so
broadly as to cover such persons remains to be seen. The “requirements”
of the section also apply
to persons subject to mandatory detention under Section 1022, but not to
all “covered persons”
within the meaning of Section 1021 (who are not detained at
Guantanamo).129137
During congressional deliberations over the House and Senate bills competing to become the
2012 NDAA, the White House and Department of Defense expressed disapproval of the transfer
certification requirements contained in each bill.130138 In a statement made upon signing the 2012
NDAA into law, President Obama stated that the Section 1028
127
135
While the funding restrictions on detainee transfers contained in the 2011 NDAA and CAA afforded the Secretary
of Defense limited waiver authority, they did not permit the waiver of certification requirements. Moreover, although
the Section 1028 permits the Secretary to waive the prohibition on the transfer of detainees where there is a confirmed
case of recidivism, it establishes more stringent requirements for the exercise of this authority than the 2011 NDAA or
CAA. See 2011 NDAA, P.L. 111-383, §1033; 2011 CAA, P.L. 112-10, §1113.
128136
Section 1028(e)(2) defines “individual detained at Guantanamo” to exclude U.S. citizens and servicemembers from
its scope.
129137
See supra section describing §1022 (“Mandatory Military Detention”).
130138
The White House expressed disapproval of the restrictions on detainee transfers established by Section 1040 of the
bill initially passed by the House, claiming that the provision’s certification requirements unduly interfere with the
executive’s ability
to make important foreign policy and national security determinations regarding whether and under
what circumstances such transfers should occur. The Administration must have the ability to act
swiftly and to have broad flexibility in conducting its negotiations with foreign countries. White
House Statement on H.R. 1540, supra footnote 2, at 2.
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modifies but fundamentally maintains unwarranted restrictions on the executive branch’s
authority to transfer detainees to a foreign country. This hinders the executive’s ability to
carry out its military, national security, and foreign relations activities and like section 1027
[concerning detainee transfers into the United States], would, under certain circumstances,
violate constitutional separation of powers principles. The executive branch must have the
flexibility to act swiftly in conducting negotiations with foreign countries regarding the
circumstances of detainee transfers. In the event that the statutory restrictions in sections
1027 and 1028 operate in a manner that violates constitutional separation of powers
principles, my Administration will interpret them to avoid the constitutional conflict.131139
Consultation Requirement Regarding Terrorism Trials
Section 1029, which originated as Section 1042 of the House bill and has not appeared in prior
legislation, requires consultation among the Attorney General, Deputy Attorney General, or
Assistant Attorney General for the Criminal Division, and the Director of National Intelligence
and the Secretary of Defense prior to the initiation of any prosecution in certain cases. The
original provision applied to the trial of any non-citizen for an offense for which the defendant
could be tried by military commission. The version that emerged from conference applies only to
persons covered by the mandatory detention requirement in Section 1022 and any other person
held in military detention pursuant to authority affirmed by Section 1021. As amended in
conference, the consultation requirement does not apply to persons arrested in the United States
unless they are non-citizens who meet the criteria for mandatory detention. However, it does
seem to apply to any case of a U.S. citizen who may be detained abroad pursuant to the AUMF
authority affirmed in Section 1021.
The consultation is to involve a discussion of whether the prosecution should take place in a U.S.
district court or before a military commission, and whether the individual should be transferred
into military custody for purposes of intelligence interviews. The White House expressed
opposition to this provision in its original form, claiming that robust interagency coordination
already exists between federal agencies in terrorism-related prosecutions, and asserting that the
provision “would undermine, rather than enhance, this coordination by requiring institutions to
assume unfamiliar roles and could cause delays in taking into custody individuals who pose
imminent threats to the nation’s safety.”132140
When signing the 2012 NDAA into law, President Obama claimed that Section 1029
represents an intrusion into the functions and prerogatives of the Department of Justice and
offends the longstanding legal tradition that decisions regarding criminal prosecutions should
be vested with the Attorney General free from outside interference. Moreover, section 1029
could impede flexibility and hinder exigent operational judgments in a manner that damages
our security. My Administration will interpret and implement section 1029 in a manner that
preserves the operational flexibility of our counterterrorism and law enforcement
(...continued)
House Statement on H.R. 1540, supra footnote 2, at 2.professionals, limits delays in the investigative process, ensures that critical executive branch
(...continued)
The Department of Defense likewise disapproved of the certification provision in S. 1867, although the
Secretary expressed gratitude that the provision was not made permanent (as in S. 1253). See DOD Letter,
supra footnote 93.
13198.
139
Presidential Signing Statement on 2012 NDAA, supra footnote 4.
132140
White House Statement on H.R. 1540, supra footnote 2, at 3.
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professionals, limits delays in the investigative process, ensures that critical executive branch
functions are not inhibited, and preserves the integrity and independence of the Department
of Justice.133141
Military Commissions Act Revision
Section 1030 amends the Military Commissions Act of 2009 (MCA) to expressly permit guilty
pleas in capital cases brought before military commissions, so long as military commission panel
members vote unanimously to approve the sentence.134142 As previously written, the MCA clearly
permits the death penalty only in cases where all military commission members present vote to
convict and concur in the sentence of death. This requirement had been interpreted by many as
precluding the imposition of the death penalty in cases where the accused has pledpleaded guilty, as there
there would have been no vote by commission members as to the defendant’s guilt. Section 1033 also
also amends the MCA to address pre-trial agreements, specifically permitting such agreements to
allow for a reduction in the maximum sentence, but not to permit a sentence of death to be
imposed by a military judge alone.135143
Section 1034 contains several technical amendments to the MCA that were inserted into the
Senate version of the FY2012 Act prior to conference. The first change amends 10 U.S.C. Section
949A(b)(2)(c) to provide that the right to representation by counsel attaches at the time at which
charges are “sworn” rather than “preferred.” Several changes amend the language describing the
composition of the Court of Military Commission Review to clarify that the judges on the court
need not remain sitting appellate judges on another military appellate court to remain qualified to
serve on the Court of Military Commission Review. Another change clarifies that the review
authority of the U.S. Court of Appeals for the D.C. Circuit is limited to determinations of matters
of law, apparently to resolve ambiguity in 10 U.S.C. Section 950G., which designates the
appellate court for the D.C. Circuit as having exclusive jurisdiction to review final military
commission judgments and defines the scope and nature of such review.136144 A final change
modifies language in the same section describing the deadline for seeking review at the appellate
court, apparently in order to clarify an ambiguity which suggested that only the accused (and not
the government) could petition for review.
General Counterterrorism Matters
Section 1032 of the 2012 NDAA, derived from Section 1045 of the House bill, addresses the
perceived need for improved interagency strategic planning for measures to deny safe havens to
Al Qaeda and affiliated groups and to strengthen “at-risk states.” It requires the President to issue
planning guidance identifying and analyzing geographic areas of concern and to provide a set of
goals for each area and a description of various agency roles as well as gaps in U.S. capabilities
that may have to be filled through coordination with other entities. The provision also requires
agencies involved in carrying out the guidance to enter into a memorandum of understanding
covering a list of criteria. Although a requirement to submit copies of each new or updated
133
141
Presidential Signing Statement on 2012 NDAA, supra footnote 4.
2012 NDAA, P.L. 112-81, H.R. 1540, §1034 (amending 10 U.S.C. §949m(b)).
135143
Id. (amending 10 U.S.C. §949i).
136144
The Supreme Court may review by writ of certiorari a final judgmentsjudgment by the D.C. Circuit Court of Appeals. 10
U.S.C. §950G(e).
134142
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guidance document to Congress within 15 days after its issuance was dropped in conference, the
conferees noted their expectation to be briefed on the guidance.137145
Section 1033 extends for two years the authority to make rewards up to $5 million to individuals
who provide information or non-lethal assistance to the U.S. government or an ally in connection
with a military operation outside the United States against international terrorism or to assist with
force protection.138146 The original authority expired on September 30, 2011. The provision also
moves the related annual reporting requirement to February rather than December. The provision,
which originated as Section 1034 of the House bill, was amended in conference to modify the
annual reporting requirement, adding a description of program implementation for each
geographic combatant command, a description of efforts to “de-conflict the authority” to make
such awards with similar U.S. government rewards programs, and an “assessment of the
effectiveness of the program in meeting its objectives.”
Developments Since the Enactment of the
2012 NDAA
The full implications of the 2012 NDAA upon U.S. detention policy are still unknown, though
some effects are already apparent. The Department of Defense has published guidelines for the
implementation of the periodic
review process established for Guantanamo detainees via
executive order, which was required by
Section 1023 of the NDAA, and the Executive has also
announced that periodic review boards will soon begin for 71 of
the detainees.147 The Executive also submitted a report to congressional committees regarding
implementation of the status
determination process for wartime detainees required under Section
1024 of the act. Restrictions
on Guantanamo detainee transfers contained in the 2012 NDAA and prior
prior and subsequent legislative enactments
are widely believed to have constrained executive
efforts to transfer detainees to foreign
custody.139148
Prior to the enactment of the 2012 NDAA, it had been exceedingly rare for U.S. authorities to
transfer a suspected terrorist from civilian to military custody. Section 1022 of the act, which
generally requires foreign members of Al Qaeda or associated forces to be transferred (at least
temporarily) to military custody, was seen by some observers as potentially having a profound
impact on existing practice. When signing the 2012 NDAA into law, President Obama expressed
opposition to the provision, and stated that his Administration would interpret and implement
Section 1022 in a manner “that best preserves the same flexible approach that has served us so
well for the past 3 years.”140 He further mentioned the provision’s inclusion of authority for the
President to waive its transfer requirements when he certified to Congress that it was in the
national security interest of the United States to do so.
137
H.Rept. 112-329 at 163.
10 U.S.C. §127b.
139
Of the 166 detainees remaining at Guantanamo, 56 have reportedly been cleared by executive authorities for transfer
145
H.Rept. 112-329 at 163.
10 U.S.C. §127b.
147
Rosenberg, supra footnote 54. Those to receive periodic review board hearings include 46 detainees who had been
designated too dangerous to release but not prosecutable and 25 other detainees who were previously listed as
candidates for trial by military commission or civilian court.
148
Of the 166 detainees remaining at Guantanamo at the end of 2012, 56 have reportedly been cleared by executive
authorities for transfer pending negotiations with potential recipient countries, while another 30 detainees from Yemen
could be repatriated if
conditions there improve. Another 46 detainees have been determined to be too dangerous to
permit release, but are not
being considered for military commission trial. Three of the detainees have been convicted,
charges are pending against
seven, and 24 detainees are under review for possible prosecution. See GAOGovernment
Accountability Office (GAO) Report 13-31, Guantánamo Bay
Detainees: Facilities and Factors for Consideration If
Detainees Were Brought to the United States 9 (November 2012). In July 2013, the Department of Defense announced
that two detainees are to be transferred to Algeria. See U.S. Intends to Send Two Guantanamo Detainees to Algeria, NY
TIMES, July 26, 2013, http://www.nytimes.com/reuters/2013/07/26/world/americas/26reuters-usa-guantanamo.html?
partner=rss&emc=rss&_r=0.
146(November 2012).
140
Presidential Signing Statement on 2012 NDAA, supra footnote 4.
138
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well for the past 3 years.”149 He further mentioned the provision’s inclusion of authority for the
President to waive its transfer requirements when he certified to Congress that it was in the
national security interest of the United States to do so.
: Detainee Matters
Section 1021 of the 2012 NDAA has continued to draw criticism on the basis that it permits
detention without trial of certain individuals, possibly including U.S. citizens and others in the
United States. A federal judge enjoined the detention of persons on the basis of providing support
to or associating with belligerent parties under one prong of the definition,141150 but the injunction
has been stayed pending the government’s appeal.was reversed on appeal due to lack of standing.151
Presidential Policy Directive 14
On February 28, 2012, the White House issued a presidential policy directive describing how it
would implement Section 1022 and waiving the mandatory military detention requirement for
several categories of persons.142152 The directive reiterates that Section 1022 will be implemented in
a manner that enables the executive to largely preserve existing policies involving the handling of
terrorist suspects,143153 and states that the FBI will continue to have “lead responsibility for
investigations of terrorist acts or terrorist threats by individuals or groups within the United
States, as well as for related intelligence collection activities within the United States.”144154
The directive declares that, acting pursuant to the statutory waiver authority provided under
Section 1022, the President has waived application of the provision’s military transfer
requirements when
•
a person in U.S. custody is a lawful permanent resident alien (i.e., green-card
holder) who is arrested in the United States on the basis of conduct occurring
inside the country;
•
a person has been arrested by a federal agency in the United States on charges
other than terrorism, unless he is subsequently charged with a terrorism offense
and held in federal custody on such charges;
•
a person is arrested by state or local law enforcement, pursuant to state or local
authority,145 and is thereafter transferred to federal custody;
•
placing a foreign country’s nationals or residents in U.S. military detention would
impede counterterrorism cooperation, including on matters related to
intelligence-sharing or assistance in the investigation or prosecution of suspected
terrorists;
•
a foreign government indicates that it will not extradite or otherwise transfer a
person to the United States if he would be placed in military custody;
141
Hedges v. Obama, No. 12-CV-331 (S.D.N.Y September 12,155 and is thereafter transferred to federal custody;
149
Presidential Signing Statement on 2012 NDAA, supra footnote 4.
Hedges v. Obama, 890 F. Supp. 2d 424 (S.D.N.Y. 2012). For a discussion of this case, see CRS Report
R42337,
Detention of U.S. Persons as Enemy Belligerents, by Jennifer K. Elsea.
142151
Hedges v. Obama, — F.3d —, 2013 WL 3717774 (2d Cir. 2013).
152
Presidential Policy Directive on Section 1022, supra footnote 5.
143153
The White House has stated that the “procedures are intended to ensure that the executive branch can continue to
utilize all elements of national power—including military, intelligence, law enforcement, diplomatic, and economic
tools—to effectively confront the threat posed by al-Qa’ida and its associated … and will retain the flexibility to
determine how best to apply those tools to the unique facts and circumstances we face in confronting this diverse and
evolving threat.” White House, Fact Sheet: Procedures Implementing Section 1022 of the National Defense
Authorization Act for Fiscal Year 2012 (February 28, 2012), available at http://www.whitehouse.gov/sites/default/files/
ndaa_fact_sheet.pdf.
144154
Presidential Directive on Section 1022, supra footnote 5, at 9-10.
145155
The specification that the person is arrested “pursuant to state or local authority” suggests that this waiver may not
be applicable when a state or local authority arrests a person for a violation of federal law.
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•
placing a foreign country’s nationals or residents in U.S. military detention would
impede counterterrorism cooperation, including on matters related to
intelligence-sharing or assistance in the investigation or prosecution of suspected
terrorists;
•
a foreign government indicates that it will not extradite or otherwise transfer a
person to the United States if he would be placed in military custody;
•
: Detainee Matters
•
transferring a person to military custody could interfere with efforts to secure the
person’s cooperation or confession; or
•
transferring a person to military custody could interfere with efforts to jointly
prosecute the individual with others who are either not subject to military custody
or whose prosecution in a federal or state court had already been determined to
proceed.146156
Some of these waivers apply to relatively definitive categories of individuals, such as the waiver
covering legal permanent residents who have been arrested for domestic activities and the waiver
applying to persons originally in state or local custody. The applicability of other waivers may
depend upon more individualized determinations, including the impact that a person’s military
transfer would have upon ongoing law enforcement activities or foreign relations.
The directive then establishes procedures for determining whether a person coming into U.S.
custody must be transferred to military detention as a “covered person” under Section 1022,
which requires at least temporary detention of any non-citizen whose detention is authorized by
the AUMF who is determined to be part of Al Qaeda or an associated force and to have
participated in the planning or carrying out of an actual or attempted attack against the United
States or its coalition partners. The procedures established by the directive do not apply when a
suspect is initially taken into custody by the DOD; in such circumstances, the relevant
requirements of Section 1022 are interpreted as having “been satisfied … regardless of the
authorities under which the individual is captured, detained, or otherwise taken into custody.”147157
The directive also interprets Section 1022 as being inapplicable to individuals while they are in
the custody of state or local authorities or a foreign government. If a waiver applies, there is no
need to make a final determination as to whether an individual is a “covered person” under
Section 1022.
Before an individual may be transferred from a federal agency to military custody, the directive
mandates that a multi-level review process must first occur. When a person is initially taken into
federal law enforcement custody, and there is probable cause to believe the individual is a
“covered person” under Section 1022, the arresting agency is required to notify the Attorney
General. The Attorney General then makes a separate determination as to whether there is
sufficient information to conclude that probable cause exists to believe that Section 1022 applies
to the arrestee and that he is not exempted from the provision’s application by waiver. If probable
cause is found to be absent or an existing national security waiver is deemed applicable, no
further action is necessary. Otherwise, the Attorney General, in coordination with senior national
security officials, undertakes a closer review to determine whether Section 1022 applies to the
arrestee.148158 If the Attorney General finds that there is clear and convincing evidence that the
individual falls under the auspices of Section 1022 (a higher evidentiary standard than employed
by the government when assessing whether someone may be detained as an enemy belligerent
under the AUMF149) and no waiver applies, a final determination may then be made that the
146156
Presidential Directive on Section 1022, supra footnote 5, at 4-5.
Id. at 3.
148158
Id. at 7. Appropriate agencies are required to assist in the collection of relevant information, including information
pertaining to the citizenship or immigration status of the arrestee.
149
In habeas litigation involving Guantanamo detainees, the executive branch has argued that it may satisfy its
evidentiary burden in support of a person’s detention when its factual claims are supported by a preponderance of
evidence, and reliance on this standard has been upheld by the D.C. Circuit Court of Appeals. See, e.g., Al Odah v.
(continued...)
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individual falls under the auspices of Section 1022 (a higher evidentiary standard than employed
by the government when assessing whether someone may be detained as an enemy belligerent
under the AUMF159) and no waiver applies, a final determination may then be made that the
person is a “covered individual” with the concurrence of the Secretary of State, Secretary of
Defense, Secretary of Homeland Security, and Director of National Intelligence.
The directive also delegates authority to the Attorney General to waive Section 1022 “on an
individual, case-by-case basis” in the event that none of the blanket waivers applies. Such a
waiver must be consistent with the statutory requirement that it be in the national security interest
of the United States. A waiver can be issued without a final determination that an individual is a
“covered person” under Section 1022. The directive lists several factors that the Attorney General
is to take into account when determining whether such a waiver is warranted, including, inter
alia:
•
the legal and evidentiary strength of any criminal charges that may be brought
against the person;
•
the impact on intelligence collection which results from maintaining the person
in law enforcement custody;
•
“the risk associated with litigation concerning the legal authority to detain the
individual pursuant to the 2001 AUMF”; and
•
whether the prosecution of the individual in federal, state, or foreign court will
otherwise best protect U.S. national security interests.150160
Even assuming that a person is determined to be covered by Section 1022 and that no waiver will
issue, his transfer to military custody may not be immediate. The directive specifies that, in the
event that a person is determined to be covered by Section 1022, the federal law enforcement
agency that took the arrestee into custody shall, in consultation with the Attorney General and
Secretary of Defense, take steps to ensure that the transfer does not result in the interruption of an
interrogation or compromise a national security investigation. The directive also provides that
In no event may a Covered Person arrested in the United States or taken into custody … [by
a federal law enforcement agency] be transferred to military custody unless and until the
Director of the FBI or his designee has determined such a transfer will not interrupt any
ongoing interrogation, compromise any national security investigation, or interrupt any
ongoing surveillance or intelligence gathering with regard to persons not already in the
custody or control of the United States…. For these purposes, and to ensure that vital
intelligence is not lost, an “interrogation” is not limited to a single interview session and
extends until the interrogating agency or agencies determine that all necessary intelligence
gathering efforts have been exhausted.151
The 2012 NDAA permits the President to waive Section 1022’s military transfer requirements
only when “such a waiver is in the national security interests of the United States.”152 Some
(...continued)(...continued)
pertaining to the citizenship or immigration status of the arrestee.
159
In habeas litigation involving Guantanamo detainees, the executive branch has argued that it may satisfy its
evidentiary burden in support of a person’s detention when its factual claims are supported by a preponderance of
evidence, and reliance on this standard has been upheld by the D.C. Circuit Court of Appeals. See, e.g., Al Odah v.
United States, 611 F.3d 8 (D.C. Cir. 2010) (upholding government’s use of preponderance of evidence standard and
specifically rejecting petitioner’s argument that more rigorous clear and convincing evidence should be employed
instead), cert. denied, 131 S. Ct. 1812 (2011). The “preponderance of evidence standard” is generally interpreted to
require that the evidence presented by both sides taken together makes the facts in question more likely true than not.
See 29 AM. JUR. 2d Evid. §173. The “clear and convincing evidence” standard is somewhat more rigorous, requiring
that a proposition is highly probable, but not requiring that the evidence negate all reasonable doubt. Id.
150
Id. at 5.
151
Presidential Directive on Section 1022, supra footnote 5, at 8-9.
152
P.L. 112-81, §1022(a)(4)160
Id. at 5.
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extends until the interrogating agency or agencies determine that all necessary intelligence
gathering efforts have been exhausted.161
The 2012 NDAA permits the President to waive Section 1022’s military transfer requirements
only when “such a waiver is in the national security interests of the United States.”162 Some
: Detainee Matters
observers have questioned whether all of the waivers issued or authorized under the directive are
consistent with this statutory requirement.153163 In any event, significant procedural barriers—
including standing and political question concerns—may impede a legal suit challenging the
propriety of a waiver, making judicial settlement of the matter appear unlikely. If Members of
Congress disagree with the President’s implementation of Section 1022, further legislative action
may be considered.
The directive also provides that it is not intended to create any right or benefit enforceable by any
party against the United States. The directive also asserts that a determination that clear and
convincing evidence is lacking to subject a person to mandatory military detention is “without
prejudice to the question of whether the individual may be subject to detention under the 2001
AUMF, as informed by the laws of war, and affirmed by Section 1021 of the NDAA.”154164
Presumably, this is in part because the evidentiary standard employed by the Executive for
assessing whether a person is subject to mandatory military detention under Section 1022 is
heavier than the standard used by the executive when determining whether someone may be held
as an enemy belligerent under the AUMF.155165
FY2013 NDAA Bills: Detainee Provisions
Despite presidential assurances that no U.S. citizens will be detained indefinitely, concern that
Section 1021 of the 2012 NDAA authorizes the detention of U.S. citizens has continued to arise.
The House and Senate versions address these concerns in a different manner. Both bills also
continue some of the restrictions on detainee transfers as well as other provisions. The House bill,
H.R. 4310, was passed in May 2012. The Senate passed its version, S. 3254, as a substitute for
the House bill on December 4, 2012. The Obama Administration has threatened to veto both bills
due to the restrictions on detainee transfers from Guantanamo, among other provisions.156
H.R. 4310
Recognition of habeas rights for detainees in United States: H.R. 4310, the National Defense
Authorization Act for FY2013, as passed by the House, contains a section setting forth
congressional findings with respect to detention authority under the AUMF and 2012 NDAA
(§1031) and a section setting forth findings with respect to habeas corpus (§1032). Section 1033,
153Detainee Provisions
The House version of the 2013 NDAA, H.R. 4310, was passed in May 2012. The Senate passed
its version, S. 3254, as a substitute for the House bill on December 4, 2012. The House bill
contained a number of restrictions on detainee transfers and requirements to submit detailed
reports on such matters. The Senate bill contained extensions of certain restrictions from the 2012
NDAA. The bills addressed the issue of detention of U.S. persons inside the United States in
different ways. The Obama Administration had threatened to veto both bills due to the restrictions
on detainee transfers from Guantanamo, among other provisions.166 The House and Senate met in
161
Presidential Directive on Section 1022, supra footnote 5, at 8-9.
P.L. 112-81, §1022(a)(4).
163
See, e.g., Jeremy Pelofsky and Laura MacInnis, Obama Lays out Detention Rules for al Qaeda Suspects, Reuters
(February 28, 2012)(quoting joint statement by Senators Ayotte, McCain, and Graham that some aspects of the
directive “may contradict the intent” of the 2012 NDAA); Greg McNeal, How President Obama Plans to Implement
the NDAA’s Military Custody Provisions, Forbes Online (February 29, 2012) (expressing skepticism that some of the
waivers, including those applying to persons arrested by state or local authorities, implicate U.S. national security
interests), available at http://www.forbes.com/sites/gregorymcneal/2012/02/29/how-president-obama-plans-toimplement-the-ndaas-military-custody-provisions/.
154164
Presidential Policy Directive on Section 1022, supra footnote 5, at 10.
155165
See text accompanying footnote 149159, supra. Section 1022 detainees are also a limited subset of those detainable
under sectionSection 1021. Unlike those whose military detention is required, non-mandatory detainees need not have
participated in an attack or attempted attack.
156166
See Statement of Administration Policy on H.R. 4310 – —National Defense Authorization Act for FY 2013, May 15,
2012, available online at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/
saphr4310r_20120515.pdf; Statement of Administration Policy on S. 3254 – —National Defense Authorization Act for
FY 2013, Nov.November 29, 2012, available online at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/
112/
saps3254s_20121129.pdf.
162
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conference to resolve differences between the competing bills, with the result that the detainee
measures from the House version were largely adopted. The version of the 2013 NDAA that was
reported from conference was subsequently approved by the House and Senate, and was
presented to the President on December 30, 2012. The 2013 NDAA became law on January 2,
2013 (P.L. 112-239).
Military trials for foreign terrorist suspects: The conference committee eliminated a provision
adopted during House consideration of H.R. 4310167 that would have required that a foreign
national who “engages or has engaged in conduct constituting an offense relating to a terrorist
attack” on a U.S. target, and who is subject to trial for the offense before a military commission,
must be charged before a military commission rather than in federal court. An identical provision
was found in the version of the 2012 NDAA originally passed by the House, but it was excised
from the enacted version.168
Detainee transfers from Guantanamo: Many provisions in the 2012 NDAA affecting detainees
at Guantanamo were scheduled to expire at the end of the fiscal year (though similar restrictions
concerning the transfer of Guantanamo detainees are found in appropriations enactments in effect
beyond that date). The 2013 NDAA effectively extends several of these provisions in the 2012
NDAA through FY2013, including the blanket funding bar on the transfer of Guantanamo
detainees into the country (§1027);169 the prohibition on using funds to construct or modify
facilities to house these detainees in the United States (§1026); and certification requirements and
restrictions on the transfer of Guantanamo detainees to foreign countries (§1028).170 These three
provisions were found in the versions of the bill passed by both the House and Senate. A
provision from the House bill that was not retained in the enacted version of the 2013 NDAA
would have barred any Guantanamo detainee who is “repatriated” to the former U.S. territories of
Palau, Micronesia, or the Marshall Islands from traveling to the United States.171
Detainees held elsewhere abroad: The 2013 NDAA establishes new certification and
congressional notification requirements relating to the transfer or release of non-U.S. or nonAfghan nationals held at the detention facility in Parwan, Afghanistan.172 The 2013 NDAA also
167
H.Amdt. 1105 to H.R. 4310, 112th Cong. (§1088 of the engrossed bill).
See H.R. 1540 §1046 (as passed by the House of Representatives, 112th Cong.). For an analysis of the provision, see
CRS Report R41920, Detainee Provisions in the National Defense Authorization Bills, by Jennifer K. Elsea and
Michael John Garcia.
169
The Senate version, as amended on the floor, would have expanded Section 1027 of the 2012 NDAA to all
appropriated funds. S.Amdt. 3245.
170
Section 1043 of the House bill would have changed the deadline for certifications or waivers of requirements from
30 to 90 days prior to the transfer. The version ultimately passed by Congress keeps the 30-day deadline from the 2012
NDAA. Other new requirements added by the House would have called for an “assessment of the likelihood that the
individual to be transferred will engage in terrorist activity after the transfer takes place” and a “detailed summary... of
the individual’s history of associations with foreign terrorist organizations and the individual’s record of cooperation
while in the custody of or under the effective control of the Department of Defense.” These requirements were omitted
in conference.
171
Section 1035 of H.R. 4310 (engrossed in the House) is substantially similar to H.R. 1540 Section 1043 (as passed by
the House of Representatives, 112th Cong.), which was omitted during conference. For an analysis of the provision, see
CRS Report R41920, Detainee Provisions in the National Defense Authorization Bills. H.R. 4310, as originally passed
by the House, differed from the previous version in that it would deprive individuals only of rights named in Section
141 of the applicable Compact of Free Association.
172
The measure appears to be a modified version of Section 1041 of the House-passed bill.
168
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establishes reporting requirements relating to recidivism by former detainees in Afghanistan.173
Specifically, it requires a report to be filed within 120 days describing the “estimated recidivism
rates and the factors that appear to contribute to the recidivism of individuals formerly detained at
the Detention Facility at Parwan, Afghanistan, who were transferred or released, including the
estimated total number of individuals who have been recaptured on one or more occasion.” This
is similar to Section 1042 of the House-passed bill, which had no analogous provision in the
Senate version.174
The enacted version of the 2013 NDAA also retained a provision to require the Secretary of
Defense to submit a report regarding the use of naval vessels to detain persons pursuant to the
AUMF, and require congressional notification whenever such detention occurs.175 This provision
is presumably a response to the situation in 2011 when a Somali national was reportedly detained
on a U.S. vessel for two months and interrogated by military and intelligence personnel before
being brought into the United States to face criminal trial.176
Detention of persons in United States: Despite the President’s assurances that the
Administration would not indefinitely detain Americans in the United States pursuant to the
detention authorization in the 2012 NDAA, that provision has continued to draw criticism from
some. The Senate adopted a measure that would have clarified that authorizations to use force are
not to be construed to permit detention of U.S. citizens or lawful permanent residents in the
United States unless Congress passes a law expressly authorizing such detention. This measure
was eliminated from the bill reported out of conference.177 An amendment to remove military
detention as an optional “disposition under the law of war” for persons in the United States was
proposed during floor debates in the House, but failed to garner sufficient votes for adoption.178
Instead, Section 1029 of the enacted version of the 2013 NDAA adopts a modified version of the
House provision on habeas corpus rights.179 It provides that nothing in the AUMF or 2012 NDAA
is to be construed as denying “the availability of the writ of habeas corpus” or denying “any
Constitutional rights in a court ordained or established by or under Article III of the Constitution”
with respect to persons who are inside the United States who would be “entitled to the availability
of such writ or to such rights in the absence of such laws.” The original provision from the
House-passed bill, as amended on the floor,180 would have covered only persons who are lawfully
present in the United States when detained pursuant to the AUMF. Under the floor amendment,
173
P.L. 112-239 §1026.
Section 1042 of the House-passed version would have required an assessment of “recidivism rates and the factors
that cause or contribute to the recidivism of individuals formerly detained at the Detention Facility at Parwan,
Afghanistan, who are transferred or released, with particular emphasis on individuals transferred or released in
connection with reconciliation efforts or peace negotiations”; and “a general rationale of the Commander, International
Security Assistance Force, as to why such individuals were released.”
175
Section 1024 of H.R. 4310 (conference report) originated as Section 1040 of the House bill, which would have
required notification within five days rather than 30.
176
See supra footnote 20 and accompanying text.
177
The measure, S.Amdt. 3018, is similar to S. 2003 and a companion bill, H.R. 3702, entitled the Due Process
Guarantee Act of 2011, and would have amended the Non-Detention Act, 18 U.S.C. §4001(a). For background of the
Non-Detention Act and the legislation introduced to amend it, see CRS Report R42337, Detention of U.S. Persons as
Enemy Belligerents, by Jennifer K. Elsea.
178
H.Amdt. 1127.
179
Section 1033 of H.R. 4310 (engrossed in the House, 112th Cong.).
180
H.Amdt. 1126.
174
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the provision would also have required the President to notify Congress within 48 hours of the
detention of such a person, and established a requirement that such persons be permitted to file
for habeas corpus “not later than 30 days after the person is placed in military custody.”
The 2013 NDAA does not contain substantive clarification of which U.S. persons are lawfully
subject to detention under the AUMF. Sections from the House bill setting forth congressional
findings with respect to detention authority under the AUMF and 2012 NDAA and with respect to
habeas corpus were omitted from the final version. Consequently, ambiguity with respect to who
can be lawfully detained in the United States appears to have been preserved, but the enacted
version of the 2013 NDAA provides reassurance that access to a court to petition for habeas
corpus will remain available to those who are detained in the United States pursuant to the
AUMF.
FY2014 NDAA Detainee Provisions
The House of Representatives passed the National Defense Authorization Act for FY2014, H.R.
1960, on June 14, 2013. The Senate Armed Services Committee ordered its version of the 2014
NDAA, S. 1197, to be favorably reported out of committee on June 20, 2013.181
AUMF authority: The House bill would require an assessment of “affiliates and adherents” of Al
Qaeda operating outside the United States (§1036). In addition to requiring the identity of such
organizations, the bill would require a summary of information about (1) the groups’ engagement
(or demonstrated interest in engaging) in lethal or significant operations, fund-raising, or
recruitment, when these activities occur outside of the locations where the groups ordinarily
operate; (2) the extent of the groups’ connection with senior Al Qaeda leadership; and (3) whether
the group has attacked or planned an attack on U.S. persons or entities, or is likely to do so in the
future. It would also require an assessment of whether each group is “part of or substantially
supporting al-Qaeda and the Taliban,” or constitutes an associated force for the purpose of the
AUMF. The report would be required to list criteria used to measure the groups’ relationship to Al
Qaeda.
Guantanamo detainees: The House bill would essentially extend the status quo with respect to
Guantanamo detainees until December 31, 2014. It continues transfer restrictions (§1033), the
ban on building or modifying facilities in the United States to house such detainees (§1032), and
the prohibition on transferring detainees from Guantanamo to the United States (§1034). The bill
would ban the transfer of any detainees to Yemen until December 31, 2014 (§1040D). The bill
would also prohibit DOD from spending funds to provide new or improved recreational facilities
for the detainees (§1040C). However, the bill would require the Secretary of Defense to designate
a senior official to be responsible for facilitating the transfer of detainees from Guantanamo
(§1037).
The House bill would require a report within 120 days by the Secretary of Defense and Secretary
of State describing the capability of Yemen to detain, rehabilitate, or prosecute detainees who
might be transferred there, as well as an assessment of humanitarian issues that might be
encountered if transfers to Yemen resume (§1039).
181
S.Rept. 113-44.
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It would also require a report within 90 days describing what rights might attach to detainees if
they are transferred to the United States (§1040). Specifically, the Attorney General and Secretary
of Defense would be required to include in the report the possibility of eligibility for relief from
removal from the United States, a requirement to release an individual from immigration
detention, the grant of asylum or withholding of removal, or any additional constitutional right.
The report would further require a description of the reasoning behind any determination that
such eligibility or right would become available on the transfer of a detainee and an explanation
of the nature of the right. The Secretary of Defense would also be required to make public a
report summarizing information relating to any detainee who has been transferred or released
from Guantanamo and later became involved in the leadership structure of a foreign terrorist
group (§1040A). The House rejected an amendment to provide a framework for the closure of the
Guantanamo detention facility by December 1, 2014.182
The Senate bill, S. 1197, does not contain a provision extending the current limitation on using
funds to construct or modify facilities in the United States to house Guantanamo detainees. It
would also permit funds to be used to transfer detainees into the United States in limited
circumstances. Specifically, it would provide for limited authority to transfer detainees
temporarily to the United States for medical treatment under certain circumstances, subject to
conditions that are intended to ensure that the detainee would not be permitted to make use of any
procedure to apply for asylum or admission into the United States, or obtain any other right or
privilege not otherwise available to detainees at Guantanamo (§1032). The bill would continue
the prohibition on releasing Guantanamo detainees into the United States, but would permit
transfers for the purpose of detention and trial (§1033). Such a transfer could be made only if the
Secretary of Defense determines that the transfer is in the national security interest of the United
States and possible risks to public safety are properly addressed, and Congress is notified
beforehand.
The Senate bill takes a new approach with respect to detainee transfers from Guantanamo to other
countries. It would permit the transfer of detainees who are assessed by a PRB as no longer
posing any threat to the United States, detainees who have been ordered released by a competent
U.S. court, and detainees who have been tried either in federal court or military commission and
acquitted or found guilty and completed serving the sentence (§1031). Such transfers would be
permitted only if the Secretary of Defense has determined that the transfer is in the interest of
national security and actions have been or will be taken to substantially mitigate the risk of
recidivism. The provision sets forth a number of factors to be taken into consideration, including
the recommendations of the Guantanamo Detainee Review Task Force or PRB; whether any
detainees who have been transferred to the same country have reengaged in terrorist other hostile
activity; actions taken by the United States or the proposed receiving country, or changed
circumstances, that reduce the risk of recidivism by the transferred individual; assurances by the
foreign government that it will maintain control over any detention facility where the transferee
may be held, or take other action to mitigate the risk of recidivism, and an assessment of the
capacity of the foreign country to meet such assurances; and any record of cooperation by the
individual to be transferred with U.S. intelligence or law enforcement authorities or plans for
continued cooperation after the transfer. A detailed notification to Congress of any such transfer
would be required 30 days prior to its commencement.
182
H.Amdt. 168.
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Parwan detainees: Section 1035 of the House bill would require an unclassified report to be
made public of information about individuals in DOD custody at the detention facility in Parwan,
including what organizations the individual is affiliated with and whether the individual has ever
been in such custody previously or is directly linked to the death of a U.S. servicemember or
government employee. The Senate bill does not address Parwan detainees.
Military commissions: Section 1030 of the House bill would clarify procedures for the use of
alternate members on military commissions by permitting the convening authority to designate
alternate members to replace primary (voting) members if necessary due to an excused absence of
such members. The Senate bill contains a substantially identical provision (§1034). Section 1038
of the House bill would require that the chief defense counsel in military commissions must have
the same rank as the chief prosecutor.
Detention of persons in the United States: As result of a floor amendment,183 the House bill
contains a provision similar to that in the 2013 NDAA which stated that those apprehended
pursuant to the AUMF in the United States were not barred from seeking habeas relief, except
that this provision applies only to U.S. citizens (§1040B(a)). The section further provides that in
cases where U.S. citizens apprehended within the United States petition for habeas corpus, the
“government shall have the burden of proving by clear and convincing evidence that such citizen
is an unprivileged enemy belligerent and there shall be no presumption that any evidence
presented by the government as justification for the apprehension and subsequent detention is
accurate and authentic” (§1040B(b)). This evidentiary standard appears to be higher than that
which the courts of the D.C. Circuit have applied to cases involving Guantanamo detainees. In
those cases, the government need only prove detention is lawful by a preponderance of the
evidence, and there is a presumption that official government records submitted as evidence are
authentic.184
A floor amendment185 was added to the House bill to require an annual report on U.S. citizens
subject to military detention, including the name of each such citizen, the legal justification
supporting the detention, and the “steps taken to provide judicial process for or to release” each of
them (§1080). While the floor debate surrounding the provision makes it apparent that it is meant
to cover civilian citizens detained pursuant to the AUMF, it also appears to cover servicemembers
in military custody for whatever reason.
The House rejected a floor amendment to eliminate indefinite military detention under the AUMF
for any person within the United States by providing immediate transfer to trial under an Article
III court or state court.186 The amendment would have repealed Section 1022 of the 2012 NDAA
(which provided for mandatory military custody of covered persons).
183
H.Amdt. 150.
See supra footnote 159; CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major
Court Rulings, by Jennifer K. Elsea and Michael John Garcia.
185
H.Amdt. 151.
186
H.Amdt. 152 (failed by a vote of 200-226).
184
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Author Contact Information
Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
Congressional Research Service
Michael John Garcia
Legislative Attorney
mgarcia@crs.loc.gov, 7-3873
44: Detainee Matters
as amended prior to passage,157 provides that nothing in the AUMF or 2012 NDAA is to be
construed as denying “the availability of the writ of habeas corpus” or denying “any
Constitutional rights in a court ordained or established by or under Article III of the Constitution,”
but only with respect to persons who are “lawfully in the United States when detained [pursuant
to the AUMF]” and who are “otherwise entitled to the availability of such writ or such rights.” It
would also require the President to notify Congress within 48 hours of the detention of such a
person, and establish a requirement that such persons be permitted to file for habeas corpus “not
later than 30 days after the person is placed in military custody.” The bill does not contain
substantive clarification of which U.S. persons are lawfully subject to detention under the AUMF.
Although the findings reiterate that the 2012 NDAA did not change the law in this regard, the
new language could be interpreted to recognize or establish that persons arrested in the United
States who meet the definition of “covered person” under Section 1021 of the 2012 NDAA are
indeed subject to detention.
It is not clear what class of persons is meant to be excluded from Section 1033 as falling outside
the scope of persons who are “lawfully in the United States when detained” under AUMF
authority. The language may apply to noncitizens who enter the United States without a valid visa
or to those who later become deportable by violating visa conditions or whose visas otherwise
become subject to revocation. It could perhaps apply to permanent resident aliens or even
naturalized citizens who are later found to have procured their respective status or citizenship
through fraud.
The 30-day access provision in Section 1033(c) may raise some interpretive difficulties in the
case of persons whose lawful presence in the United States is undisputed. The language “not later
than 30 days” is typically employed to set a deadline for a required action rather than a beginning
point for permitting activity. Read literally, the provision could be interpreted to permit a
custodian to prevent a detainee from filing a habeas petition for up to 30 days. On the other hand,
the language “shall be allowed ... not later than” suggests that a detainee would no longer be
allowed to file a habeas petition after 30 days from the time custody began.
The House rejected an amendment that would have barred indefinite military detention pursuant
to the AUMF within the United States.158
Military trials for foreign terrorist suspects: During floor deliberation on H.R. 4310, an
amendment159 was adopted requiring that, in the event that a foreign terrorist attacks a U.S. target
and may be subject to trial for the offense before a military commission, the accused must be
charged before a military commission rather than in federal court. An identical provision was
found in the version of the 2012 NDAA originally passed by the House, but it was excised from
the enacted version.160
157
H.Amdt. 1126.
H.Amdt. 1127, an amendment to remove detention without trial as an optional disposition for covered persons under
Section 1021 of the 2012 NDAA, was not adopted.
159
H.Amdt. 1105 to H.R. 4310 (§1088 of the engrossed bill).
160
See H.R. 1540 §1046 (as passed by the House of Representatives, 112th Cong.). For an analysis of the provision, see
CRS Report R41920, Detainee Provisions in the National Defense Authorization Bills, by Jennifer K. Elsea and
Michael John Garcia.
158
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Detainee Transfers from Guantanamo: Many provisions in the 2012 NDAA affecting detainees
at Guantanamo are scheduled to expire at the end of the fiscal year. H.R. 4310 would effectively
extend several of these provisions through FY2013, including the blanket funding bar on the
transfer of Guantanamo detainees into the country (§1027); the prohibition on using funds to
construct facilities to house these detainees in the United States (§1026); and (with minor
changes)161 certification requirements and restrictions on the transfer of Guantanamo detainees to
foreign countries. The bill also contains a provision that was part of the House version of the
2012 NDAA, but which was not included in the final act, that bars any Guantanamo detainee who
is “repatriated” to the former U.S. territories of Palau, Micronesia, or the Marshall Islands from
traveling to the United States.162 The bill would also establish additional reporting requirements163
relating to recidivism by former Guantanamo detainees.
Detainees held elsewhere abroad: Although legislative activity on detainee matters has
primarily involved persons held at Guantanamo or within the United States, the vast majority of
detainees are held by U.S. forces in Afghanistan. H.R. 4310 would establish certification and
congressional notification requirements relating to the transfer or release of non-U.S. or nonAfghan nationals held at the detention facility in Parwan, Afghanistan, and require the Secretary
of Defense to submit a report on the recidivism of former Parwan detainees. The bill would also
require the Secretary of Defense to submit a report regarding the use of naval vessels to detain
persons pursuant to the AUMF, and require congressional notification whenever such detention
occurs. This provision is presumably a response to the situation last year when a Somali national
was reportedly detained on a U.S. vessel for two months and interrogated by military and
intelligence personnel before being brought into the United States to face criminal trial.164
S. 3254
Transfer restrictions: Section 1031 of S. 3254, as reported out of the Armed Services
Committee, extends two provisions of the 2012 NDAA. The first is Section 1026, a provision
prohibiting the use of any funds made available to the Department of Defense for FY2012 to
construct or modify any facility in the United States, its territories, or possessions to house an
individual detained at Guantanamo for “detention or imprisonment in the custody or under the
control of the Department of Defense.” The second provision to be extended is Section 1028 of
the 2012 NDAA, which prohibits expenditures for detainee transfers to foreign countries or
161
Section 1043 of the bill changes the deadline for certifications or waivers of requirements from 30 to 90 days prior
to the transfer, and adds new requirements for an “assessment of the likelihood that the individual to be transferred will
engage in terrorist activity after the transfer takes place” and a “detailed summary... of the individual’s history of
associations with foreign terrorist organizations and the individual’s record of cooperation while in the custody of or
under the effective control of the Department of Defense.”
162
Section 1035 of H.R. 4310 (engrossed) is substantially similar to H.R. 1540 Section 1043 (as passed by the House of
Representatives, 112th Cong.). For an analysis of the provision, see CRS Report R41920, Detainee Provisions in the
National Defense Authorization Bills. H.R. 4310 differs from the previous version in that it would deprive individuals
only of rights named in Section 141 of the applicable Compact of Free Association.
163
Section 1042 of the bill requires an assessment of “recidivism rates and the factors that cause or contribute to the
recidivism of individuals formerly detained at the Detention Facility at Parwan, Afghanistan, who are transferred or
released, with particular emphasis on individuals transferred or released in connection with reconciliation efforts or
peace negotiations”; and “a general rationale of the Commander, International Security Assistance Force, as to why
such individuals were released.”
164
See supra footnote 17 and accompanying text.
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entities unless the Department of Defense first makes certain certifications with respect to the
destination country or entity.165
One floor amendment related to Guantanamo was adopted by the Senate during floor
consideration of the bill. S.Amdt. 3245 would essentially extend Section 1027 of the 2012 NDAA
to 2013, while expanding it to cover all 2013 appropriations. Section 1027 prohibits the
expenditure of DOD funds for FY2012 from being used to transfer or assist in the transfer of any
detainee from Guantanamo into the United States.
Detention of U.S. persons in the United States: S.Amdt. 3018 addresses concerns about the
application of detention authority from Section 1021 of the 2012 NDAA within the United States.
It would provide that wartime detention authority under an authorization of force or declaration of
war does not extend to U.S. citizens or lawful permanent resident aliens (LPRs). The amendment,
introduced by Senator Feinstein, would not directly alter the language of either the AUMF or
Section 1021 of the 2012 NDAA. It is similar to S. 2003 and a companion bill, H.R. 3702,
entitled the Due Process Guarantee Act of 2011, and would amend the Non-Detention Act.166 If
enacted, the provision would mandate that an authorization to use military force or similar
measure is not to be construed as an act of Congress authorizing the detention of U.S. citizens
who are arrested in the United States, unless express authority for such detention is given. The
amendment also covers lawful permanent resident aliens in the United States. It would add new
sections to 18 U.S.C. Section 4001:
(b)(1) An authorization to use military force, a declaration of war, or any similar authority
shall not authorize the detention without charge or trial of a citizen or lawful permanent
resident of the United States apprehended in the United States, unless an Act of Congress
expressly authorizes such detention.
(2) Paragraph (1) applies to an authorization to use military force, a declaration of war,
or any similar authority enacted before, on, or after the date of the enactment of the National
Defense Authorization Act For Fiscal Year 2013.
(3) Paragraph (1) shall not be construed to authorize the detention of a citizen of the
United States, a lawful permanent resident of the United States, or any other person who is
apprehended in the United States.
The amendment appears intended to affirm the Hamdi decision167 with respect to U.S. citizens
captured overseas, but to prevent the extension of that decision to cover U.S. citizens and
permanent resident aliens arrested in the United States. Paragraph three of the amended language
may be read to preserve existing ambiguity with respect to U.S. citizens and permanent resident
aliens apprehended abroad, as well as aliens apprehended in the United States who do not have
permanent resident status, possibly in order to avoid a construction whereby detention of such
persons is deemed authorized by implication by any authorization to use military force (in the
same way as similar language is employed in paragraph (e) of Section 1021 of the 2012 NDAA).
165
See supra “Transfer or Release of Guantanamo Detainees to Foreign Countries.”
18 U.S.C. § 4001(a). For background of the Non-Detention Act, see CRS Report R42337, Detention of U.S. Persons
as Enemy Belligerents, by Jennifer K. Elsea.
167
Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004). For a description of the holding, see supra “Scope of Detention
Authority Conferred by the AUMF.”
166
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The amendment does not extend protection to lawful aliens without permanent resident (green
card) status, including foreigners in the United States with valid tourist or student visas, and
would not include aliens without legal status. Such persons would nevertheless be covered by the
Constitution’s due process provisions, and would be entitled to seek habeas corpus review of their
detention. It appears that the Alien Enemy Act168 would remain available as an express
authorization for the President to order the internment of “natives, citizens, denizens or subjects”
of a foreign country or government in the event of an armed invasion or declared war.
During floor debate on the amendment, several Senators expressed the view that its enactment
would have no effect on the government’s ability to detain U.S. citizens under the law of war,
whether the arrest were to take place within the United States or abroad.169 Because the Supreme
Court has already interpreted the AUMF as “explicitly authorizing” such detention in satisfaction
of the Non-Detention Act’s requirement for “an act of Congress” authorizing the detention of a
U.S. citizen without trial, Senator Levin argued that under the Non-Detention Act as proposed to
be amended, the AUMF would likewise be interpreted to provide the requisite “express”
congressional authorization. On the other hand, the amendment could be read as a congressional
disapproval of the Hamdi plurality’s interpretation of the AUMF, to the extent it could be
extended to permit detention of covered persons apprehended in the United States, in favor of a
rule of construction that would require a clear statement of congressional authorization.
Author Contact Information
Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
168
169
Michael John Garcia
Legislative Attorney
mgarcia@crs.loc.gov, 7-3873
50 U.S.C. §21.
158 CONG REC. S7183-88 (Daily ed. November 30, 2012) (Statements of Senators Levin, Graham, and Ayotte).
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