The National Defense Authorization Act
for FY2012: Detainee Matters
Jennifer K. Elsea
Legislative Attorney
Michael John Garcia
Legislative Attorney
January 11, 2012
Congressional Research Service
7-5700
www.crs.gov
R42143
CRS Report for Congress
Pr
epared for Members and Committees of Congress
The National Defense Authorization Act for FY2012: 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, as enacted, largely adopts the detention provisions from the Senate bill, S.
1867, with several modified provisions from the House bill, H.R. 1540, along with a few
modifications inserted at conference in an effort to avoid a presidential veto. It 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 the Consolidated and Further Continuing Appropriations Act,
2012 (P.L. 112-55) and the Consolidated Appropriations Act, 2012 (P.L. 112-74)).
During floor debate on S. 1867, 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
provisions (ultimately included in the final version of the act) to clarify that the bill’s 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 FY2012 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. Notably, the conferees added a
statement to confirm that the provision mandating the military detention of certain categories of
persons does not affect existing authorities of domestic law enforcement agencies, even with
respect to persons held in military custody. 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. He declared that his Administration would implement the mandatory military
detention provision so as to preserve a maximum degree of flexibility, and that it would not
“adhere to a rigid across-the-board requirement for military detention.” He also criticized the
restrictions placed on Guantanamo detainee transfers, arguing that some applications might
violate constitutional separation of powers principles.
This report offers a brief background of the salient issues raised by the detainee provisions of the
FY2012 NDAA and provides a section-by-section analysis.
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The National Defense Authorization Act for FY2012: Detainee Matters
Contents
Introduction...................................................................................................................................... 1
Background...................................................................................................................................... 3
Scope of Detention Authority Conferred by the AUMF............................................................ 6
Status Determinations for Unprivileged Enemy Belligerents.................................................. 10
“Recidivism” and Restrictions on Transfer ............................................................................. 12
2012 NDAA: Summary and Analysis of Detainee Provisions ...................................................... 14
Detention Authority................................................................................................................. 14
Mandatory Military Detention................................................................................................. 17
Periodic Review of Detention of Persons at Guantanamo....................................................... 22
Status Determination of Wartime Detainees............................................................................ 23
Security Protocols for Guantanamo Detainees........................................................................ 25
Transfer or Release of Wartime Detainees into the United States ........................................... 25
Transfer or Release of Guantanamo Detainees to Foreign Countries...................................... 27
Consultation Requirement Regarding Terrorism Trials........................................................... 29
Military Commissions Act Revision........................................................................................ 30
General Counterterrorism Matters........................................................................................... 31
Contacts
Author Contact Information........................................................................................................... 31
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The National Defense Authorization Act for FY2012: Detainee Matters
Introduction
Each of the House and Senate bills that were under consideration as the National Defense
Authorization Act for FY2012 (2012 NDAA, P.L. 112-81) contained a subtitle addressing issues
related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba (Guantanamo), and more
broadly, hostilities against Al Qaeda and other entities.1 H.R. 1540, which passed the House of
Representatives May 26, 2011, addressed “counterterrorism” matters in subtitle D of Title X. A
companion bill in the Senate, S. 1253, was reported out of the Armed Services Committee June
22, 2011, and addressed “detainee matters” in subtitle D of Title X. A second companion bill, S.
1867, was reported out of the Armed Services Committee on November 15, 2011, in an effort to
resolve disputes over the detainee provisions that had kept S. 1253 from reaching the floor. On
December 1, 2011, the Senate passed S. 1867, as amended. The Senate subsequently passed H.R.
1540, with the Senate bill’s provisions inserted in place of the original language. The conference
report largely adopts the detainee provisions from the Senate bill, S. 1867, with some provisions
from the House bill, and a few modifications inserted at conference in an effort to avoid a
presidential veto. The 2012 NDAA was signed into law as P.L. 112-81 by President Obama on
December 31, 2011.
As enacted, 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; 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 the use of Department of Defense
(DOD) funds to transfer detainees from Guantanamo into the United States for trial or other
purposes, 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).2
During congressional deliberations over the House and Senate bills competing to become the
2012 NDAA, the White House criticized of each bill’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.”3 In particular, the
1 For further discussion of the competing House and Senate bills, including discussion of detainee provisions which
were not included in the final version of the 2012 NDAA, see CRS Report R41920, Detainee Provisions in the
National Defense Authorization Bills, by Jennifer K. Elsea and Michael John Garcia.
2 Chapter 47a of Title 10, U.S. Code.
3 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 (Nov. 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.
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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 reported out of conference and 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.
The Obama Administration then lifted its veto threat,4 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.5 Among other things, he 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. He also 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.
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.
4 See Charlie Savage, Obama Drops Veto Threat Over Military Authorization Bill After Revisions, N.Y. TIMES, Dec.
14, 2011, at A30, available online at http://www.nytimes.com/2011/12/15/us/politics/obama-wont-veto-military-
authorization-bill.html?_r=3.
5 White House, Office of the Press Secretary, Statement by the President on H.R. 1540, Dec. 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.
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Background
At the heart of the consideration of both houses’ 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 (P.L. 107-40) (AUMF), 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
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 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
6 To date there have been six convictions by military commissions, four of which were procured by plea agreement. 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.
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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
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. A U.S.-operated facility in Parwan, Afghanistan, holds an even larger
number of detainees, most of whom were captured in Afghanistan.10 Neither of these two
detention facilities, 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.11
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 a legal permanent resident alien who
had never been to the Afghanistan zone of combat, but was alleged to have been an Al Qaeda
“sleeper agent” who was planning to engage in terrorist activities on behalf of the organization
9 Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) (quoting the Military Commissions Act of 2006, P.L. 109-
366, §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
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, Aug. 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 has
caused the transfer to be delayed. See Kevin Sieff, Afghan prison transfer delayed, WASH. POST, Aug. 12, 2011, at
http://www.washingtonpost.com/world/asia-pacific/afghan-prison-transfer-delayed/2011/08/12/
gIQApCGMBJ_story.html (reporting that the transfer is unlikely to occur until U.S. troops are scheduled to leave
Afghanistan in 2014, although efforts to increase the capacity of the Afghan judicial system are continuing).
11 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.
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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.12
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 high-
profile 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.13 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)
extend this prohibition through the entirety of FY2012.14 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
12 al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (per curiam), cert. granted by 129 S.Ct. 680 (2008), vacated and
remanded for dismissal on mootness grounds by al-Marri v. Spagone, 129 S.Ct. 1545 (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).
13 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.
14 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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months for interrogation by military and intelligence personnel.15 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,16 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,17 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 2021 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
15 Peter Finn and Karen DeYoung, In Detention Case, a Blend of Two Systems, WASH. POST, Jul. 6, 2011, at A02,
available online at http://www.washingtonpost.com/national/national-security/in-somali-terror-suspects-case-
administration-blends-military-civilian-systems/2011/07/06/gIQAQ4AJ1H_story.html.
16 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. 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.
17 See Jeremy Pelofsky, US Lawmaker Wants Accused Iraqis sent to Guantanamo, REUTERS NEWS, June 14, 2011.
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coalition partners, including any person who has committed a belligerent act, or has directly
supported hostilities, in aid of such enemy armed forces.18
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 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.19 In its 2009 brief, the government declined to
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.”20
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.”21 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.22 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.23
18 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.
19Compare 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 Al-
Bihani 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).
20 Government Brief, supra footnote 18, 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.
21 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.”)
22 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).
23 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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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.24 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.25 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.26
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,27 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.”28
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
24 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).
25 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).
26 See Government Brief, supra footnote 18, 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.
27 532 F.3d 834 (D.C. Cir. 2008) (court challenge under now defunct Detainee Treatment Act judicial review process).
28 Id. at 843 (citations omitted).
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“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.’”29 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.”30 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.31 In another case, the
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.32 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.33 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.34 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
extent to 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 that the
AUMF authorizes the detention of any person who is functionally part of Al Qaeda, though this
29 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. & note 4.
30 Id.
31 See Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010).
32 Khan v. Obama, 646 F. Supp. 2d 6 (D.D.C. 2009).
33 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).
34 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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view has been espoused so far only in cases involving non-U.S. citizens who have been captured
outside the United States.35 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
who were designated as enemy combatants by the executive branch.36 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.37 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.38 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.39 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.40 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.”41 CSRTs confirmed the status of 539 enemy combatants between July 30, 2004,
and February 10, 2009.42 Although the CSRT process has been largely defunct since 2007 due to
35 See 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’ al-
Qaida when captured”).
36 Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005); al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008).
37 Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008), vacated by al-Marri v. Spagone, 129 S.Ct. 1545 (2009).
38 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”).
39 For analysis of historical practice relating to the wartime detention of U.S. citizens, see CRS Report RL31724,
Detention of American Citizens as Enemy Combatants, by Jennifer K. Elsea.
40 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.
41 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.
42 See Department of Defense, Combatant Status Review Tribunal Summary, Feb. 10, 2009 [hereinafter “CSRT
Summary”], available online at http://www.defense.gov/news/csrtsummary.pdf. Nearly all CSRT proceedings were
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the fact that so few detainees have been brought to Guantanamo since that time,43 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.44 Moreover,
whereas the Supreme Court has held that the constitutional writ of habeas extends to non-citizens
held at Guantanamo,45 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.46
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,47 which continues to
apply at the new detention facility in Parwan.48 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.49
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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.
43See Guantanamo Review Task Force, Final Report 1, Jan. 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 42.
44 See generally, Maqaleh v. Gates, 604 F. Supp. 2d 205, 226-228 (D.D.C. 2009)(comparing CSRT process with that
employed at Bagram 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., Jun. 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).
45 Boumediene v. Bush, 553 U.S. 723 (2008).
46 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).
47 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.
48 See Daniel, supra footnote 10.
49 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 11. Admiral McRaven indicated that captures outside a theater of
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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.50 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
detention and introduce evidence on his own behalf, must 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.
“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.”51 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
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
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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.
50 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”].
51 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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criticism of U.S. detention policies).52 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.53 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
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.54 In 2009, the Pentagon reported that one
in seven, or 74 of the 534 prisoners transferred from Guantanamo were believed to have
subsequently engaged in terrorism or militant activity.55
The Intelligence Authorization Act for FY2010 (P.L. 111-259), which was enacted in October
2010, required the Director of National Intelligence (DNI) to make publicly available 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 was released in December 2010, and
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.”56 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 13492,57 2 are confirmed and 3 are suspected of participating
52 Department of Defense, “Former Guantanamo Detainees Who Have Returned to the Fight,” news release, July 12,
2007.
53 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.
54 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.
55 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).
56 Office of the Director of National Intelligence, Summary of the Reengagement of Detainees Formerly Held at
Guantanamo Bay, Cuba (December 2010) [hereinafter “DNI Recidivism Summary”], available at http://www.dni.gov/
electronic_reading_room/
120710_Summary_of_the_Reengagement_of_Detainees_Formerly_Held_at_Guantanamo_Bay_Cuba.pdf.
57 Exec. Order No. 13,492, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and
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in terrorist or insurgent activities.58 The report does not include detainees solely on the basis of
anti-U.S. statements or writings,59 but the accuracy or significance of the numbers has
nevertheless been challenged. 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%.60 Because the
intelligence data forming the basis for the DNI’s report remains classified, it is not possible to
explain the discrepancy between the report’s estimate 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.
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,61 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.62
(...continued)
Closure of Detention Facilities, 74 Fed. Reg. 4,897 (Jan. 22, 2009).
58 DNI Recidivism Summary, supra footnote 56.
59 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.
60 See Peter Bergen, Katherine Tiedemann, and Andrew Lebovich, How Many Gitmo Alumni Take Up Arms?, FOREIGN
POLICY online, Jan. 11, 2011, available at http://www.foreignpolicy.com/articles/2011/01/11/
how_many_gitmo_alumni_take_up_arms.
61 See supra, discussion in “Scope of Detention Authority Conferred by the AUMF.”
62 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
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Section 1021 states that dispositions under the law of war “may include” several options:
• 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.63
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
have expressly barred U.S. citizens from long-term military detention on account of enemy
belligerent status was considered and rejected.64 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.”65
This language, which remains in the final version of the act,66 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
(...continued)
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 (Nov. 15, 2011, 3:19 PM), http://thecaucus.blogs.nytimes.com/
2011/11/15/levin-and-mccain-strike-deal-over-detainee-handling/.
63 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).
64 S.Amdt. 1126 (seeking to bar the long-term military detention of U.S. citizens) (not agreed to by a vote of 45-55).
65 S.Amdt. 1456.
66 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 respect to those who engaged in relevant hostilities overseas, but not with respect to those captured in
other circumstances. The D.C. Circuit, however, has not required proof that a detainee actually engaged in hostilities in
order to affirm detention authority, and would likely apply the same definitional analysis to U.S. citizens and resident
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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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
has not been definitively adjudicated.67 Section 1021 does not attempt to clarify the circumstances
in which a U.S. citizen, 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 2001.68
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.”
When signing the 2012 NDAA into law, President Obama claimed that Section 2012 “breaks no
new ground and is unnecessary,” as it “solely codifies established authorities”69—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.
67 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.”
68 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.
69 Presidential Signing Statement on 2012 NDAA, supra footnote 5. 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 1, at 1-2. When S. 1867 was reported out of 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 U.S. 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”).
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
transfer requirements established in Section 1028 of the act,70 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
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.71
70 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 (Nov.15, 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 75 (noting potential implications for the capture of suspected Al Qaeda members during U.S.
operations in Iraq or Afghanistan).
71 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.
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Section 1022 applies both to members of Al Qaeda and “associated forces.”72 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.73 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.
Under this reading, hypothetically, captured Afghan insurgents suspected of involvement in
efforts to dislodge local government officials could be turned over to the Afghan government
without undergoing the certification process in Section 1028 (so long as no Al Qaeda cooperation
is suspected), while a member of the same militia engaged with Al Qaeda in planning an attack
would be subject to mandatory detention and restrictions on transfer. In any event, Section 1022
would not apply to a “lone wolf” terrorist with no ties to Al Qaeda or any associated force.
What conduct constitutes an “attack ... against the United States coalition partners” is not further
clarified. 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
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,74 the Nigerian suspect
72 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 note 1.
73 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.
74 See, e.g., 157 CONG. REC. S 8097 (daily ed. Dec. 1, 2011) (statement of Sen. Ayotte); White House Statement on S.
1867, supra footnote 1, 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.”).
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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).75 This may raise questions if, for example, Ali
Musa Daqduq is 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.76 He is suspected of being 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.77 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 FY2012 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 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
75 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, Jan. 9, 2012, at A4 (reporting that President Karzai has 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).
76 See Charlie Savage, U.S. Transfers Its Last Prisoner in Iraq to Iraqi Custody, NY TIMES, Dec. 17, 2011, at A11,
available online at http://www.nytimes.com/2011/12/17/world/middleeast/us-transfers-last-prisoner-to-iraqi-
government.html?_r=1&hp.
77 Id.
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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 1022.78 The bill 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.79 Section
1022 does not prevent Article III trials of covered persons,80 although any time spent in military
custody could complicate the prosecution of a covered defendant.81
The Obama Administration has opposed this provision, even as the language was revised.82
During Senate deliberation concerning S. 1867, the White House claimed that its mandatory
78 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.
79 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 non-
citizen detainees held by the United States in Afghanistan).
80 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.
81 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.
82 For example, during Senate consideration of S. 1867, 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
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 70.
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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.”83
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.84 Section 1022, as it emerged from conference, provides that it is
not to be construed “to affect the existing criminal enforcement and national security 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,85 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.”86
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.”87
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.”88 Nonetheless, the President characterized the Section 1022 as providing “the
minimally acceptable amount of flexibility to protect national security,” and claimed that he
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-the-
83 See White House Statement on S. 1867, supra footnote 3, at 2.
84 White House Press Briefing by Press Secretary Jay Carney, Dec. 15, 2011, available at http://www.whitehouse.gov/
the-press-office/2011/12/15/press-briefing-press-secretary-jay-carney-12152011.
85 See FBI Oversight, Hearing before the Senate Committee on the Judiciary, 112th Cong. 2d Sess. (Dec. 14,
2011)(Statement of FBI Director Robert Mueller), transcript available at 2011 WL 6202873.
86 Statement from the White House Press Secretary on the NDAA Bill, Dec. 14, 2011, printed in National Defense
Authorization Act for Fiscal Year 2012-Conference Report, 157 CONG. REC. S8632-01, S8664 (2011).
87 Id.
88 Presidential Signing Statement on 2012 NDAA, supra footnote 5.
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board 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.89
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,90 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,91
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
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
• 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.
89 Id.
90 Among other things, the review process contemplated by Section 1036 of H.R. 1540, as initially passed by the
House, 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
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 1, at 2-3.
91 H.R. 1540 (as initially passed by the House) § 1036.
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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.92
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.
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.”93
Status Determination of Wartime Detainees
Section 1024 of the 2012 NDAA, which tracks a provision contained in S. 1867, 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
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.94
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:
92 White House Statement on S. 1867, supra footnote 3, at 2.
93 Presidential Signing Statement on 2012 NDAA, supra footnote 5.
94 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.
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(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).95 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).96 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 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 enactment.
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.97 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.
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.98 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 be entitled to be represented by military counsel or to have a
military judge preside at their status determination proceedings, if one is required.
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.”99 When signing the 2012
95 See supra citations contained in footnote 44.
96 See supra section headed “Status Determinations for Unprivileged Enemy Belligerents.”
97 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.”
98 H.Rept. 112-329 at 160.
99 White House Statement on S. 1867, supra footnote 3, at 3.
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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.”100
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
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.101
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
control of the Department of Defense.” Substantially similar restrictions are contained in the 2012
Minibus and 2012 CAA.102
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.103
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
100 Presidential Signing Statement on 2012 NDAA, supra footnote 5.
101 Id.
102 2012 Minibus, P.L. 112-55, §533; 2012 CAA, P.L. 112-74, §§ 511, 8121.
103 The restriction also generally precludes the transfer or release of detainees to U.S. territories or possessions.
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still preserved executive discretion to transfer detainees into the country for purposes of criminal
prosecution.104 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.105 These restrictions 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
appear to have effectively made military commissions the only viable forum for the criminal
prosecution of Guantanamo detainees, at least until the end of FY2012.
During congressional deliberations over H.R. 1540, as originally passed by the House, the Obama
Administration issued a statement expressing opposition to the provision in the bill which barred
the transfer of detainees into the United States.106 While stating 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.107
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.”108 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 1028 would operate in a manner violating separation of powers principle, his
Administration would interpret the provision to avoid a constitutional conflict.
104 For further discussion of these limitations, see CRS Report R40754, Guantanamo Detention Center: Legislative
Activity in the 111th Congress, by Michael John Garcia.
105 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 Dec. 16,
2011, via Division D of the 2012 Minibus).
106 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/the-
press-office/2011/04/15/statement-president-hr-1473.
107 White House Statement on H.R. 1540, supra footnote 3, at 2.
108 Presidential Signing Statement on 2012 NDAA, supra footnote 5.
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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,109 both of which remain in effect for the duration of the 2012 fiscal year, 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. 112-10), which had been set to expire at the end of
FY2011.110 These restrictions appear motivated by congressional concern over possible
recidivism by detainees released from U.S. custody.111 Supporters of these funding restrictions
argue that they significantly reduce the chance that a detainee will reengage in terrorist activity if
released from U.S. custody, 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.
109 2012 CAA, P.L. 112-74, §8120.
110 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
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 via
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 Dec. 16, 2011).
111 The DNI reported in December 2010 that 13.5% of released Guantanamo detainees are “confirmed” and 11.5% “are
suspected” of “reengaging in terrorist or insurgent activities after transfer.” See DNI Recidivism Summary, supra
footnote 56.
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These certification requirements virtually mirror those contained in the 2011 NDAA and CAA,112
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.
Like other recent funding restrictions, Section 1028 also generally prohibits funds from being
used to transfer a Guantanamo detainee to the custody or control of a foreign government or
entity if there is a confirmed case that a former Guantanamo detainee who was transferred to that
government or entity subsequently engaged in terrorist activity.
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, that
alternative actions will substantially mitigate the risk.113 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,114 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 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).115
112 2011 NDAA, P.L. 111-383, §1033; 2011 CAA, P.L. 112-10, §1013.
113 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, though 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.
114 Section 1028(e)(2) defines “individual detained at Guantanamo” to exclude U.S. citizens and servicemembers from
its scope.
115See supra section describing §1022 (“Mandatory Military Detention”).
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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.116 In a statement made upon signing the 2012
NDAA into law, President Obama stated that the Section 1028:
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.117
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
116 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 3, at 2.
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 82.
117 Presidential Signing Statement on 2012 NDAA, supra footnote 5.
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assume unfamiliar roles and could cause delays in taking into custody individuals who pose
imminent threats to the nation’s safety.”118
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
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.119
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.120 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 pled guilty, as there
would have been no vote by commission members as to the defendant’s guilt. Section 1033 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.121
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.
§ 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. § 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.122 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.
118 White House Statement on H.R. 1540, supra footnote 3, at 3.
119 Presidential Signing Statement on 2012 NDAA, supra footnote 5.
120 2012 NDAA, P.L. 112-81, H.R. 1540, §1034 (amending 10 U.S.C. §949m(b)).
121 Id. (amending 10 U.S.C. §949i).
122 The Supreme Court may review by writ of certiorari a final judgments by the D.C. Circuit Court of Appeals. 10
U.S.C. §950G(e).
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General Counterterrorism Matters
Section 1032, 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 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.123
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.124 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.”
Author Contact Information
Jennifer K. Elsea
Michael John Garcia
Legislative Attorney
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
mgarcia@crs.loc.gov, 7-3873
123 H.Rept. 112-329 at 163.
124 10 U.S.C. §127b.
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