Wartime Detention Provisions
in Recent Defense Authorization Legislation
Jennifer K. Elsea
Legislative Attorney
Michael John Garcia
Legislative Attorney
May 28, 2015
Congressional Research Service
7-5700
www.crs.gov
R42143
Wartime Detention Provisions in Recent Defense Authorization Legislation
Summary
In recent years, Congress has included provisions in annual defense authorization bills 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. The National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 112-81) arguably
constituted the most significant legislation informing wartime detention policy since the 2001
Authorization for the Use of Military Force (AUMF; P.L. 107-40), which serves as the primary
legal authority for U.S. operations against Al Qaeda and associated forces. Much of the debate
surrounding passage of the 2012 NDAA centered on what appeared to be an effort to confirm or,
as some observers view it, expand the detention authority that Congress implicitly granted the
President via the AUMF in the aftermath of the terrorist attacks of September 11, 2001. But the
2012 NDAA addressed other issues as well, including the continued detention of persons at
Guantanamo. Both the 2013 NDAA (P.L. 112-239) and the 2014 NDAA (P.L. 113-66) also
contain subtitles addressing U.S. detention policy, though neither act addresses detention matters
as comprehensively as did the 2012 NDAA. The 2015 NDAA (P.L. 113-291) and the
Consolidated and Further Continuing Appropriations Act, 2015 (2015 Cromnibus; P.L. 113-235),
essentially maintain the status quo.
The 2012 NDAA authorizes the detention of certain categories of persons and requires the
military detention of a subset of them (subject to waiver); regulates status determinations for
persons held pursuant to the AUMF; regulates periodic review proceedings concerning
Guantanamo detainees; and continued funding restrictions on Guantanamo detainee transfers.
During floor debate, 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. The act clarified that its affirmation of detention authority under
the AUMF is not intended to affect existing authorities relating to the detention of U.S. citizens or
lawful resident aliens, or any other persons arrested in the United States. When signing the 2012
NDAA into law, President Obama stated that he would “not authorize the indefinite military
detention without trial of American citizens.”
The 2012 NDAA and subsequent defense authorization enactments also included provisions
concerning the transfer or release of detainees currently held at Guantanamo. Both the 2012 and
2013 NDAAs extended the existing prohibition on the release of detainees into the United States
for any purpose, as well as restrictions upon the transfer of such Guantanamo detainees to foreign
countries. The 2014 NDAA extends the blanket prohibition on transferring Guantanamo detainees
to the United States, but allows the Executive greater flexibility in determining whether to
transfer detainees to foreign custody. Both policies are continued in the 2015 NDAA and the 2015
Cromnibus, and the Obama Administration has stepped up the transfer of detainees to foreign
countries. The proposed 2016 NDAA passed by the House (H.R. 1735), however, may reinstate
more stringent transfer requirements, while the Senate Armed Services Committee bill, S. 1376,
would provide a potential avenue for closing the detention facility.
This report offers a brief background of the salient issues raised by the detainee provisions of the
FY2012 NDAA, provides a section-by-section analysis, and discusses executive interpretation
and implementation of the act’s mandatory military detention provision. It also addresses detainee
provisions in subsequent defense authorization legislation, as well as those under consideration
during the House and Senate deliberations of the 2016 NDAA. An earlier version of this report
was entitled The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters.
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Wartime Detention Provisions in Recent Defense Authorization Legislation
Contents
Background ...................................................................................................................................... 3
Scope of Detention Authority Conferred by the AUMF ............................................................ 8
Status Determinations for Unprivileged Enemy Belligerents .................................................. 12
“Recidivism” and Restrictions on Transfer ............................................................................. 14
2012 NDAA: Summary and Analysis of Detainee Provisions ...................................................... 17
Detention Authority ................................................................................................................. 17
Mandatory Military Detention ................................................................................................. 20
Periodic Review of Detention of Persons at Guantanamo ....................................................... 25
Status Determination of Wartime Detainees ............................................................................ 26
Security Protocols for Guantanamo Detainees ........................................................................ 28
Transfer or Release of Wartime Detainees into the United States ........................................... 28
Transfer or Release of Guantanamo Detainees to Foreign Countries ...................................... 30
Consultation Requirement Regarding Terrorism Trials ........................................................... 32
Military Commissions Act Revision........................................................................................ 33
Developments Since the Enactment of the 2012 NDAA ............................................................... 34
Presidential Policy Directive 14 .............................................................................................. 35
FY2013 NDAA Detainee Provisions ............................................................................................. 38
FY2014 NDAA Detainee Provisions ............................................................................................. 41
FY2015 NDAA Detainee Provisions ............................................................................................. 44
FY2016 NDAA Detainee Provisions ............................................................................................. 44
H.R. 1735................................................................................................................................. 44
S. 1376 ..................................................................................................................................... 46
Contacts
Author Contact Information........................................................................................................... 48
Congressional Research Service
Wartime Detention Provisions in Recent Defense Authorization Legislation
n recent years, Congress has included provisions in annual defense authorization bills
addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba,
Iand, more broadly, the disposition of persons captured in the course of hostilities against Al
Qaeda and associated forces. The National Defense Authorization Act for FY2012 (2012 NDAA;
P.L. 112-81) arguably constituted the most significant legislation informing wartime detention
policy since the 2001 Authorization for the Use of Military Force (AUMF; P.L. 107-40), which
serves as the primary legal authority for U.S. operations against Al Qaeda and associated forces.
Key Takeaways of This Report
•
Provisions in recent defense authorization enactments have addressed the detention of persons captured in
the conflict with Al Qaeda, and in particular those held at the Guantanamo detention facility.
•
The 2012 NDAA specifically authorized the detention of categories of persons captured in the conflict with
Al Qaeda, required the military detention of a subset (subject to a broad waiver), and established other
requirements related to the continued detention, transfer, or release of wartime detainees.
•
Subsequent defense authorization and appropriations enactments have largely maintained the status quo,
including annual extensions of the prohibition on transfers of Guantanamo detainees into the United States.
•
Some provisions of the defense authorization enactments, including restrictions on the transfer of
Guantanamo detainees into the United States, generally expire at the end of the pertinent fiscal or calendar
year. Other provisions, including the 2012 NDAA’s provisions concerning the scope of detention authority,
and the 2013 NDAA’s relaxation of restrictions on Guantanamo detainee transfers to foreign countries, do
not sunset.
•
Post-2012 NDAA legislative developments concerning wartime detention have primarily concerned the
degree of discretion afforded to the Executive in deciding whether to transfer or release Guantanamo
detainees to the custody of foreign governments. The 2014 NDAA loosened transfer restrictions, resulting
in an uptick in Guantanamo detainee transfers.
•
The House-passed version of the 2016 NDAA would reimpose earlier, more stringent restrictions on
detainee transfers, and also add further limitations. The version of the 2016 NDAA reported by the Senate
Armed Services Committee would also tighten restrictions on Guantanamo detainee transfers to foreign
countries, but allow limited transfers to the United States for emergency medical treatment. However, the
Senate bill would relax transfer restrictions in the event that Congress approved a plan by the Executive to
close the detention facility.
Both the National Defense Authorization Acts for FY2013 (2013 NDAA; P.L. 112-239) and
FY2014 (2014 NDAA; P.L. 113-66) contain subtitles addressing U.S. detention policy,
particularly with respect to persons held at Guantanamo, though neither act addresses detention
matters as comprehensively as the 2012 NDAA. The FY2015 NDAA (P.L. 113-291) essentially
maintains the status quo established by the 2014 NDAA.
During congressional deliberations over the House and Senate bills competing to become the
2012 NDAA, the White House criticized each version’s detainee provisions, and threatened to
veto any legislation “that challenges or constrains the President’s critical authorities to collect
intelligence, incapacitate dangerous terrorists, and protect the Nation.”1 In particular, the
1 See Exec. Office of the Pres., Statement of Administration Policy on H.R. 1540 (May 24, 2011) (hereinafter “White
House Statement on H.R. 1540”), available at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/
saphr1540r_20110524.pdf; Exec. Office of the Pres., Statement of Administration Policy on S. 1867 (November 17,
2011) (hereinafter “White House Statement on S. 1867”), available at http://www.whitehouse.gov/sites/default/files/
omb/legislative/sap/112/saps1867s_20111117.pdf.
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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 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,2 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.3 Among other things, he criticized the blanket bar on Guantanamo
detainee transfers into the United States and the restrictions imposed on detainee transfers to
foreign countries, arguing that some applications of these provisions might violate constitutional
separation of powers principles. President Obama also announced that he would “not authorize
the indefinite military detention without trial of American citizens,” regardless of whether such
detention might be legally permissible under the AUMF or the 2012 NDAA. He further declared
that his Administration would not “adhere to a rigid across-the-board requirement for military
detention,” and suggested that he would exercise the statutory waiver of the mandatory military
detention provision when he deemed it appropriate. On February 28, 2012, President Obama
issued a directive describing circumstances in which the 2012 NDAA’s mandatory military
detention requirement would be waived.4
Both the 2013 and 2014 versions of the NDAA contain subtitles addressing U.S. detention policy,
particularly with respect to persons held at Guantanamo. While the detention provisions in the
2013 NDAA largely represented a continuation of existing policies, the 2014 NDAA saw some
2 See Charlie Savage, Obama Drops Veto Threat Over Military Authorization Bill After Revisions, N.Y. TIMES,
December 14, 2011, at A30, available at http://www.nytimes.com/2011/12/15/us/politics/obama-wont-veto-military-
authorization-bill.html?_r=3.
3 White House, Office of the Press Secretary, Statement by the President on H.R. 1540, December 31, 2011 (hereinafter
“Presidential Signing Statement on 2012 NDAA”), available at http://www.whitehouse.gov/the-press-office/2011/12/
31/statement-president-hr-1540.
4 Presidential Policy Directive, Procedures Implementing Section 1022 of the National Defense Authorization Act for
Fiscal Year (FY) 2012, February 28, 2012 (hereinafter “Presidential Policy Directive on Section 1022”), available at
http://www.justice.gov/opa/documents/ppd-14.pdf.
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relaxation of the long-standing restrictions imposed upon the transfer of Guantanamo detainees to
foreign countries. The 2015 NDAA did not modify the requirements established by the 2014
NDAA. The Consolidated and Further Continuing Appropriations Act, 2015 (2015 Cromnibus,
P.L. 113-235), extended through FY2015 the prohibition on the use of funds to transfer detainees
abroad unless the requirements of the 2014 NDAA are satisfied.5 The Obama Administration
subsequently stepped up transfers of cleared detainees to foreign countries.6 The Administration’s
noncompliance with a congressional notification requirement in the 2014 NDAA, in connection
with the transfer of five Taliban detainees in exchange for U.S. Army Sergeant Bowe Bergdahl in
2014, appears to have swayed some in Congress toward reinstating and strengthening the
previous set of requirements for transferring detainees to foreign countries.
This report offers a brief background of the salient issues and provides a section-by-section
analysis of the detainee provisions in the National Defense Authorization Act for FY2012. It also
discusses executive interpretation and implementation of the act’s mandatory military detention
provision. Finally, it addresses detainee provisions in subsequent national authorization
legislation, including the relevant measures under consideration for the 2016 NDAA.
Background
At the heart of the consideration of the detainee provisions in the 2012 NDAA appears to have
been an effort to confirm or, as some observers view it, expand the detention authority Congress
implicitly granted the President in the aftermath of the terrorist attacks of September 11, 2001. In
enacting the Authorization for Use of Military Force (AUMF; P.L. 107-40), Congress authorized
the President
to use all necessary and appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons, in order to prevent any
future acts of international terrorism against the United States by such nations, organizations
or persons.
Many persons captured during subsequent U.S operations in Afghanistan and elsewhere have
been placed in preventive detention to stop them from participating in hostilities or terrorist
activities. A few have been tried by military commission for crimes associated with those
hostilities,7 while many others have been tried for terrorism-related crimes in civilian court.
In the 2004 case of Hamdi v. Rumsfeld, a majority of the Supreme Court recognized that, as a
necessary incident to the AUMF, the President may detain enemy combatants captured while
5 Consolidated and Further Continuing Appropriations Act, 2015 (“2015 Cromnibus”), P.L. 113-235, Div. C, §8114.
6 See Missy Ryan and Adam Goldman, U.S. prepares to accelerate detainee transfers from Guantanamo Bay prison,
WASH. POST, December 24, 2014, available at http://www.washingtonpost.com/world/national-security/us-prepares-to-
ramp-up-transfers-from-guantanamo/2014/12/24/46685a86-8ab9-11e4-a085-34e9b9f09a58_story.html.
7 To date there have been six convictions by military commissions, four of which were procured by plea agreement,
and two additional guilty pleas have been entered, although one of these was rejected by the Convening Authority. Two
convictions have been reversed on appeal, and another appeal was reversed in part, with the remaining counts of the
conviction to be reheard by a panel of the U.S. Court of Appeals for the D.C. Circuit. The current status of military
commissions can be found at http://www.mc.mil/CASES/MilitaryCommissions.aspx. For more information about
military commissions, see CRS Report R40932, Comparison of Rights in Military Commission Trials and Trials in
Federal Criminal Court, by Jennifer K. Elsea.
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fighting U.S. forces in Afghanistan (including U.S. citizens), and potentially hold such persons
for the duration of hostilities.8 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.9 It remains to be seen whether any of these
rulings will be reviewed by the Supreme Court and, if such review occurs, whether the Court will
endorse or reject the circuit court’s understanding of the AUMF and the scope of detention
authority it confers.
Prior to the 2012 NDAA, Congress did not pass any legislation to directly assist the courts in
defining the scope of detention authority granted by the AUMF. The D.C. Circuit has, however,
looked to other post-AUMF legislation concerning the jurisdiction of military commissions for
guidance as to the categories of persons who may be subject to military detention. In 2010, the
circuit court concluded that the government had authority under the AUMF to detain militarily
persons subject to the jurisdiction of military commissions established pursuant to the Military
Commissions Acts of 2006 and 2009 (MCA); namely, those who are “part of forces associated
with Al Qaeda or the Taliban,” along with “those who purposefully and materially support such
forces in hostilities against U.S. Coalition partners.”10
Most of the persons detained under the authority of the AUMF are combatants picked up during
military operations in Afghanistan or arrested elsewhere abroad. Many of these individuals were
transported to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention in military custody,
although a few “high value” Guantanamo detainees were initially held at other locations by the
CIA for interrogation. The United States also held a larger number of detainees at a facility in
8 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.
9 See CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by
Jennifer K. Elsea and Michael John Garcia.
10 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.
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Parwan, Afghanistan.11 The United States agreed to hand over control of the facility to the Afghan
government, and transfer all Afghan detainees in its custody at Parwan to the Afghan authorities
by September 2012,12 though implementation of this agreement was delayed due to disagreement
between Afghan and U.S. authorities, with Afghan officials reportedly claiming that the United
States continued to hold several dozen Afghan detainees.13 The remaining Afghan prisoners were
turned over to Afghanistan in March 2013 after an agreement was reached whereby U.S. advisors
are to remain at the facility and Afghanistan agreed not to release prisoners the United States
considers particularly dangerous.14 Although several dozen non-Afghan detainees remained in
U.S. custody for some time thereafter, in December 2014 the Department of Defense (DOD)
announced that all remaining detainees in U.S. custody had been transferred to foreign custody,
and that it “no longer operates detention facilities in Afghanistan.... ”15 Neither the Guantanamo
facility nor any facility in Afghanistan appears to be considered a viable option for future captures
in the conflict authorized by the AUMF; the current practice in such cases seems to be ad hoc.16
In almost all instances, persons arrested in the United States who have been suspected of terrorist
activity on behalf of Al Qaeda or affiliated groups have not been placed in military detention
pursuant to the AUMF, but instead have been prosecuted in federal court for criminal activity.
There were two instances in which the Bush Administration transferred persons arrested in the
United States into military custody and designated them as “enemy combatants”—one a U.S.
citizen initially arrested by law enforcement authorities upon his return from Afghanistan, where
he had allegedly been part of Taliban forces, and the other an alien present in the United States on
a student visa who had never been to the Afghanistan zone of combat, but was alleged to have
been an Al Qaeda “sleeper agent” planning to engage in terrorist activities on behalf of the
organization within the United States. However, in both cases, the detainees were ultimately
transferred back to the custody of civil authorities and tried in federal court when it appeared that
the Supreme Court would hear their habeas petitions, leaving the legal validity of their prior
military detention uncertain.17
11 The Parwan detention facility took over detention operations previously conducted at the Bagram Theater Internment
Facility. See Lisa Daniel, Task Force Ensures Fair Detainee Treatment, Commander Says, American Forces Press
Service, August 6, 2010, available at http://www.defense.gov/News/NewsArticle.aspx?ID=103004. The detention
center had been slated to be turned over to Afghan authority by January, 2012, but rapid growth of the prisoner
population caused the transfer to be delayed. See Kevin Sieff, Afghan prison transfer delayed, WASH. POST, August 12,
2011, at http://www.washingtonpost.com/world/asia-pacific/afghan-prison-transfer-delayed/2011/08/12/
gIQApCGMBJ_story.html.
12 MOU on Parwan Transfer, supra footnote 11, at para. 6.
13 Pamela Constable, Karzai Orders “Full Afghanization” of U.S.-run Bagram Prison, WASH. POST, November 29,
2012, at http://www.washingtonpost.com/world/karzai-orders-full-afghanization-of-us-run-bagram-prison/2012/11/19/
39da5080-326e-11e2-92f0-496af208bf23_story.html.
14 Karen DeYoung, Parwan prison to be turned to Afghans, removing obstacle to long-term security agreement, WASH.
POST, March 23, 2013, at http://articles.washingtonpost.com/2013-03-23/world/37958352_1_parwan-prison-afghan-
officials-afghan-civilians.
15 Brian Bennett, U.S. shuts down its last detention center in Afghanistan, L.A. TIMES, December 10, 2014 (quoting
DOD Spokesman Mark Wright), at http://www.latimes.com/world/afghanistan-pakistan/la-fg-us-detention-center-
afghanistan-20141210-story.html.
16 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.
17 Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (per curiam), cert. granted by 555 U.S. 1066 (2008), vacated
(continued...)
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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.18 These restrictions have been extended through appropriations and defense
authorization legislation enacted in subsequent years,19 including pursuant to the 2015 NDAA and
the 2015 Cromnibus.20 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
(...continued)
and remanded for dismissal on mootness grounds by Al-Marri v. Spagone, 555 U.S. 1220 (2009); Padilla v. Hanft, 423
F.3d 386 (4th Cir. 2005). See also CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees:
Major Court Rulings, by Jennifer K. Elsea and Michael John Garcia (discussing Al-Marri and Padilla litigation); CRS
Report R42337, Detention of U.S. Persons as Enemy Belligerents, by Jennifer K. Elsea.
18 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.
19 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), extended this prohibition through the entirety of
FY2012. See 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); 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)). The restrictions were effectively extended again
until March 27, 2013, by the Continuing Appropriations Resolution, 2013 (2013 CAR; P.L. 112-175), and then for the
duration of the fiscal year by the FY2013 Consolidated and Full Year Continuing Appropriations Act (P.L. 113-6) and
the 2013 NDAA. See P.L. 113-6, Div. B, §530 and Div. C., §8109; 2013 NDAA, P.L. 112-239, §1027.
20 National Defense Authorization Act for Fiscal Year 2015 (2015 NDAA), P.L. 113-291, §1033; 2015 Cromnibus,
P.L. 113-235, Div. B, §528 and Div. C, §8112.
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months for interrogation by military and intelligence personnel.21 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,22 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,23 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 decision of U.S. authorities to bring criminal charges against
former Al Qaeda spokesman Sulaiman Abu Ghayth in civilian court following his arrest, rather
than transferring him to military custody at Guantanamo, was criticized by some lawmakers.24
Most recently, the capture of alleged Benghazi ringleader Ahmed Abu Khattalah has evoked calls
for holding him for interrogation at the Guantanamo Bay detention facility and for possibly
prosecuting him by military commission.25
Potential issues may also arise with respect to the application of the detainee provisions of
defense authorization legislation to U.S. operations against the Islamic State (which formerly
referred to itself as the Islamic State of Iraq and the Levant, and is also commonly known as IS,
ISIS, or ISIL). The Obama Administration has identified the 2001 AUMF as providing a legal
basis of U.S. military action against the Islamic State, because the Administration characterizes
the Islamic State as a successor to the version of Al Qaeda responsible for the terrorist attacks of
September 11, 2001.26 As of the date of this report, the United States does not appear to have
captured and detained any Islamic State members. However, if any Islamic State members are
apprehended and detained by U.S. authorities, policy makers (and possibly reviewing U.S. courts)
would likely have to assess whether and how the AUMF, along with those detainee provisions of
defense authorization legislation which reference the AUMF, apply.
21 Peter Finn and Karen DeYoung, In Detention Case, a Blend of Two Systems, WASH. POST, July 6, 2011, at A02,
available at http://www.washingtonpost.com/national/national-security/in-somali-terror-suspects-case-administration-
blends-military-civilian-systems/2011/07/06/gIQAQ4AJ1H_story.html. Warsame subsequently pleaded guilty to each
of the nine terrorism-related charges for which he was indicted. See Dept. of Justice, Press Release, “Manhattan U.S.
Attorney Announces Guilty Plea of Ahmed Warsame,” March 23, 2013, available at http://www.justice.gov/usao/nys/
pressreleases/March13/WarsameUnsealingPR.php?print=1 (announcing the unsealing of guilty plea made in December
2011).
22 Umar Farouk Abdulmutallab is a Nigerian national accused of trying to destroy an airliner traveling from Amsterdam
to Detroit on Christmas Day 2009. He was apprehended and interrogated by civilian law enforcement before being
charged in an Article III court, where he was sentenced to life imprisonment. Faisal Shahzad, a naturalized U.S. citizen
originally from Pakistan, was arrested by civilian law enforcement and convicted in federal court for his attempt to
detonate a bomb in New York’s Times Square in 2010.
23 See Jeremy Pelofsky, US Lawmaker Wants Accused Iraqis Sent to Guantanamo, REUTERS NEWS, June 14, 2011.
24 See Michael Martinez, Is Civilian or Military Justice Best for Osama bin Laden’s Son-in-Law?, CNN ONLINE, March
8, 2013 (quoting views of Senators McConnell, Graham, and Ayotte).
25 See CRS Legal Sidebar WSLG969, Can Ahmed Abu Khattalah be Held at Guantanamo or Tried by Military
Commission?, by Jennifer K. Elsea.
26 See White House, Office of Press Secretary, Letter from the President—War Powers Resolution Letter regarding
Military Action in Iraq, September 23, 2014, available at http://www.whitehouse.gov/the-press-office/2014/09/23/
letter-president-war-powers-resolution-regarding-iraq. For further discussion of the Administration’s position, see CRS
Report R43720, U.S. Military Action Against the Islamic State: Answers to Frequently Asked Legal Questions, by
Michael John Garcia and Jennifer K. Elsea.
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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 and subsequent defense
authorization legislation. The first section addresses the scope of detention authority under the
AUMF as the Administration views it and as it has developed in court cases. The following
section provides an overview of current practice regarding initial status determinations and
periodic reviews of detainee cases. The background ends with a discussion of recidivism concerns
underlying current restrictions on transferring detainees from Guantanamo.
Scope of Detention Authority Conferred by the AUMF
Prior to passage of the 2012 NDAA, the AUMF constituted the primary legal basis supporting the
detention of persons captured in the conflict with Al Qaeda and affiliated entities, but the scope of
the detention authority it confers is not made plain by its terms, and accordingly can be subject to
differing interpretations. Section 1021 of the 2012 NDAA appears intended to codify existing law,
as interpreted and applied by the executive branch and the D.C. Circuit, and expressly disavows
any construction that would limit or expand the President’s detention authority under the AUMF.
Accordingly, an understanding of the state of the law prior to passage may inform the
interpretation of the NDAA provisions relating to detention authority.
The Obama Administration framed its detention authority under the AUMF in a March 13, 2009,
court brief as follows:
The President has the authority to detain persons that the President determines planned,
authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,
and persons who harbored those responsible for those attacks. The President also has the
authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida
forces or associated forces that are engaged in hostilities against the United States or its
coalition partners, including any person who has committed a belligerent act, or has directly
supported hostilities, in aid of such enemy armed forces.27
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, 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.28 In its 2009 brief, the government declined to clarify
27 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.
28Compare 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).
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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.”29
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.”30 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.31 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.32
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.33 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.34 In its 2009
brief, the government explained that
29 Government Brief, supra footnote 27, 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.
30 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.”)
31 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).
32 See CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by
Jennifer K. Elsea and Michael John Garcia.
33 Hamdi v. Rumsfeld, 542 U.S. 507 (2004). A plurality of the Supreme Court stated,
The AUMF authorizes the President to use “all necessary and appropriate force” against “nations,
organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224.
There can be no doubt that individuals who fought against the United States in Afghanistan as part
of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible
for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that
detention of individuals falling into the limited category we are considering, for the duration of the
particular conflict in which they were captured, is so fundamental and accepted an incident to war
as to be an exercise of the “necessary and appropriate force” Congress has authorized the President
to use.
Id. at 518 (O’Connor, J., plurality opinion). See also id. at 587 (Thomas, J., dissenting) (agreeing with plurality that
AUMF authorizes the President to detain enemy forces).
34 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.”
(continued...)
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[The AUMF does not] limit the “organizations” it covers to just al-Qaida or the Taliban. In
Afghanistan, many different private armed groups trained and fought alongside al-Qaida and
the Taliban. In order “to prevent any future acts of international terrorism against the United
States,” AUMF, § 2(a), the United States has authority to detain individuals who, in
analogous circumstances in a traditional international armed conflict between the armed
forces of opposing governments, would be detainable under principles of co-belligerency.35
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,36 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.”37
The court did not find that the government’s evidence supported the second and third prongs, so it
found it unnecessary to reach the first. The government had defined “associated force” to be one
that “becomes so closely associated with al Qaida or the Taliban that it is effectively ‘part of the
same organization,’” in which case it argued ETIM is covered by the AUMF because that force
“thereby becomes the same ‘organization[ ]’ that perpetrated the September 11 attacks.” If the
definition asserted by the government in Parhat is adopted, then the term would seem to require a
close operational nexus in the current armed conflict. On the other hand, as the court noted,
“[t]his argument suggests that, even under the government’s own definition, the evidence must
establish a connection between ETIM and al Qaida or the Taliban that is considerably closer than
the relationship suggested by the usual meaning of the word ‘associated.’”38 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.”39 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
(...continued)
Id. at 514 (O’Connor, J., plurality opinion).
35 See Government Brief, supra footnote 27, 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.
36 532 F.3d 834 (D.C. Cir. 2008) (court challenge under now defunct Detainee Treatment Act judicial review process).
37 Id. at 843 (citations omitted).
38 Id. at 844. The court noted the following exchange that had taken place at an oral hearing:
Judge Sentelle: So you are dependent on the proposition that ETIM is properly defined as being
part of al Qaida, not that it aided or abetted, or aided or harbored al Qaida, but that it’s part of [?]
Mr. Katsas: Correct ... in order to fit them in the AUMF.
Id. and footnote 3.
39 Id.
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been found to be an “associated force” within the meaning of the AUMF.40 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.41 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.42 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.43 It is possible that Congress’s codification of the detention authority
as to “associated forces” in the 2012 NDAA may bring courts to interpret the term more broadly
than they have in the past in order to comport with the plain text meaning.
An issue of continuing uncertainty regarding the scope of detention authority conferred by the
AUMF concerns its application to persons captured outside of Afghanistan, and in particular
those who are U.S. citizens or otherwise have significant ties to the United States. While the
Supreme Court in Hamdi recognized that the AUMF permitted the detention of a U.S. citizen
captured while fighting U.S. coalition forces in Afghanistan, it did not address whether (or the
circumstances in which) persons captured outside of Afghanistan could be properly detained
under the AUMF. The U.S. Court of Appeals for the D.C. Circuit has apparently taken the view
that the AUMF authorizes the detention of any person who is functionally part of Al Qaeda,
though this view has been espoused so far only in cases involving non-U.S. citizens who have
been captured outside the United States.44 In separate rulings, the U.S. Court of Appeals for the
Fourth Circuit upheld the military detention of a U.S. citizen and a lawfully admitted alien
captured in the United States who were designated as enemy combatants by the executive
branch.45 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.46 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.47 Accordingly, the circumstances in which a
40 See Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010).
41 Khan v. Obama, 646 F. Supp. 2d 6 (D.D.C. 2009). See also Khan v. Obama, 655 F.3d 20 (D.C. Cir. 2011) (in review
of lower court ruling in same litigation, affirming district court’s determination that HIG is an “associated force” within
the meaning of the AUMF).
42 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).
43 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.
44 See, e.g., Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010) (recognizing that government might be able to lawfully
detain an Algerian citizen arrested by Bosnian authorities in 2001 and subsequently transferred to U.S. custody for
detention at Guantanamo, but remanding to lower court to assess sufficiency of government’s evidence that petitioner
was a member of Al Qaeda); Salahi v. Obama, 625 F.3d 745 (D.C. Cir. 2010) (in assessing whether person captured in
Mauritania was lawfully detained under the AUMF, “the relevant inquiry is whether [the petitioner] was ‘part of’ al-
Qaida when captured”).
45 Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005); Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008).
46 Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008), vacated and remanded for dismissal on mootness grounds by
Al-Marri v. Spagone, 555 U.S. 1220 (2009).
47 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”).
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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.48 Neither the 2012 NDAA nor subsequent
defense spending enactments 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.49 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.”50 CSRTs confirmed the status of 539 enemy combatants between July 30, 2004,
and February 10, 2009.51 Although the CSRT process has been largely defunct since 2007 due to
the fact that so few detainees have been brought to Guantanamo since that time,52 presumably any
new detainees who might be transported to the Guantanamo detention facility would go before a
CSRT. The CSRT process has been employed only with respect to persons held at Guantanamo.
Non-citizen detainees held by the United States in Afghanistan were subject to a different status
review process which provides detainees with fewer procedural rights.53 Moreover, whereas the
48 For analysis of historical practice relating to the wartime detention of U.S. citizens, see CRS Report R42337,
Detention of U.S. Persons as Enemy Belligerents, by Jennifer K. Elsea.
49 See Department of Defense Fact Sheet, “Combatant Status Review Tribunals,” available at
http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf. CSRT proceedings are modeled on the procedures
of Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees
(1997), which establishes administrative procedures to determine the status of detainees under the Geneva Conventions
and prescribes their treatment in accordance with international law. It does not include a category for “unlawful” or
“enemy” combatants, who would presumably be covered by the other categories.
50 See Department of Defense 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.
51 See Department of Defense, Combatant Status Review Tribunal Summary, February 10, 2009 [hereinafter “CSRT
Summary”], available at http://www.defense.gov/news/csrtsummary.pdf. Nearly all CSRT proceedings were held in
2004, another two dozen were held in 2005, none took place in 2006, fourteen were held in 2007 (likely the fourteen
“high-value” detainees, including Khalid Sheik Mohammed and others previously detained by the CIA), with numbers
dropping off significantly after that time. For more information about the CSRT rules and procedures, see CRS Report
RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and
Michael John Garcia.
52See Guantanamo Review Task Force, Final Report 1, January 22, 2010, available at http://www.justice.gov/ag/
guantanamo-review-final-report.pdf (reporting statistics related to arrivals at Guantanamo). CSRTs continue to be held
in the event that “new evidence” is received that may affect a detainee’s initial status determination, but these were
temporarily suspended in 2009 along with the suspension of the Annual Administrative Review process. See CSRT
Summary, supra footnote 51.
53 See generally, Maqaleh v. Gates, 604 F. Supp. 2d 205, 226-228 (D.D.C. 2009)(comparing CSRT process with that
employed at Bagram detention facility prior to 2009), vacated on other grounds and remanded by 605 F.3d 84 (D.C.
Cir. 2010); Jeff A. Bovarnick, Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy, ARMY
LAW., June 2010, at 9 (discussing evolution of the detainee review process used by the United States in Afghanistan);
(continued...)
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Supreme Court has held that the constitutional writ of habeas extends to non-citizens held at
Guantanamo,54 enabling Guantanamo detainees to challenge the legality of their detention in
federal court, existing lower court jurisprudence has not recognized that a similar privilege
extended to non-citizen detainees who were held by the United States in Afghanistan.55
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,56 which also applied at
the detention facility in Parwan.57 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.58
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.59 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
(...continued)
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).
54 Boumediene v. Bush, 553 U.S. 723 (2008).
55 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).
56 Karen DeYoung and Peter Finn, New Review System Will Give Afghan Prisoners More Rights, WASH. 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.
57 See Daniel, supra footnote 11.
58 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 would be transferred to that
country for detention. See McRaven Testimony, supra footnote 16. Admiral McRaven indicated that captures outside a
theater of operations like Iraq or Afghanistan are treated on a case-by-case basis, with detainees sometimes kept on
board a naval vessel until a decision is made, id. at 37, but did not indicate what if any process is used to determine the
detainee’s status as subject to detention under the AUMF in the first place.
59 Exec. Order No. 13,567, “Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to
Authorization to Use Military Force,” 76 Fed. Reg. 13,277 (March 10, 2011) [hereinafter “Executive Order on Periodic
Review”].
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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, was required to occur within a year of the
order’s issuance. The order requires a full review thereafter on a triennial basis and a file review
every six months in intervening years, which could, if significant new information is revealed
therein, result in a new full review. The order also specifies that the process it establishes is
discretionary; does not create any additional basis for detention authority or modify the scope of
authority granted under existing law; and is not intended to affect federal courts’ jurisdiction to
determine the legality of a person’s continued detention. The one-year deadline established by the
executive order for the initial review of covered persons’ continued detention was not met. In
May 2012, DOD issued a directive that establishes guidelines for the implementation of the
periodic review process, but it was not until July 2013 that it was announced that the first periodic
review boards would take place.60 An announcement of the completion of the first PRB process
occurred on January 9, 2014.61 As of the date of this report, 14 PRB determinations have been
made.62
“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.”63 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
criticism of U.S. detention policies).64 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
60 Carol Rosenberg, 71 Guantanamo prisoners will get parole-style hearings, Pentagon says, WASH. POST, July 22,
2013, at A4.
61 Department of Defense Press Release, “Completion of First Guantanamo Periodic Review Board,” January 9, 2014,
available at http://www.defense.gov/releases/release.aspx?releaseid=16473.
62 Current statistics are available at the Periodic Review Secretariat website at http://www.prs.mil/ReviewInformation/
FullReviewpage.aspx.
63 For an overview of restrictions, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the
111th Congress, by Michael John Garcia.
64 Department of Defense, “Former Guantanamo Detainees Who Have Returned to the Fight,” news release, July 12,
2007.
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information that would enable independent verification of the numbers.65 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.66 In 2009, the Pentagon reported that 1 in
7, or 74 of the 534 prisoners transferred from Guantanamo were believed to have subsequently
engaged in terrorism or militant activity.67
More recent estimates by the executive branch, sometimes made publicly available through
legislative action, have provided different numbers. In December 2010, pursuant to a requirement
contained in the Intelligence Authorization Act of FY2010 (P.L. 111-259), the Director of
National Intelligence (DNI) released an unclassified summary of intelligence relating to
recidivism rates of current or former Guantanamo detainees, as well as an assessment of the
likelihood that such detainees may engage in terrorism or communicate with terrorist
organizations. The report stated that of the 598 detainees transferred out of Guantanamo, the
“Intelligence Community assesses that 81 (13.5 percent) are confirmed and 69 (11.5 percent) are
suspected of reengaging in terrorist or insurgent activities after transfer.”68 Of the 150 confirmed
or suspected recidivist detainees, the report stated that 13 were dead, 54 were in custody, and 83
remained at large. The summary also indicated that, of 66 detainees transferred from Guantanamo
since the implementation of Executive Order 13492,69 2 were confirmed and 3 were suspected of
65 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.
66 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.
67 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).
68 Office of the Director of National Intelligence, Summary of the Reengagement of Detainees Formerly Held at
Guantanamo Bay, Cuba (December 2010) [hereinafter “2010 DNI Recidivism Summary”], available at
http://www.dni.gov/electronic_reading_room/
120710_Summary_of_the_Reengagement_of_Detainees_Formerly_Held_at_Guantanamo_Bay_Cuba.pdf.
69 Exec. Order No. 13,492, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and
Closure of Detention Facilities, 74 Fed. Reg. 4,897 (January 22, 2009).
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participating in terrorist or insurgent activities.70 The report did not include detainees solely on
the basis of anti-U.S. statements or writings.71
In September 2011, Director of National Intelligence Lieutenant General James Clapper testified
in a congressional hearing that the number of former Guantanamo detainees who were either
suspected or confirmed to have engaged in terrorist or insurgent activities upon release had risen
to 27%.72 In January 2012, the President signed into law the Intelligence Authorization Act of
FY2012 (P.L. 112-87), which required the DNI to release another unclassified summary of
intelligence relating to recidivism rates of current or former Guantanamo detainees, and to
provide periodic updates not less than every six months thereafter.73 The first summary was
released in March 2012, and claimed that of the 599 detainees transferred out of Guantanamo by
the end of 2011, 95 detainees (15.9%) were “confirmed of reengaging” in terrorist or insurgent
activities, and 72 detainees (12.0%) were “suspected of reengaging” in such activities.74 Of the 67
detainees transferred since the implementation of Executive Order 13492, 3 were confirmed and 2
were suspected of participating in terrorist or insurgent activities.75 As with the earlier DNI
estimate, the report does not identify detainees as “reengaging” in terrorist or insurgent activity
solely on the basis of anti-U.S. statements, or on account of communications with persons or
organizations that are unrelated to terrorist operations.
The latest DNI recidivism summary, released in March 2015, states that out of a total of 647
detainees who have been transferred or released, 116 detainees have been confirmed of
reengaging in terrorist or insurgent activity (raising the percentage of former detainees falling
under this category to 17.9%), and 69 former detainees fall into the “suspected of reengaging”
category (10.7% of former detainees).76
The accuracy or significance of the numbers provided by DNI and other government entities has
been questioned by some observers. In response to the release of the 2010 DNI estimate, the New
America Foundation analyzed publicly available Pentagon reports and other documents and
estimated that the actual figure of released detainees who went on to pose a threat to the United
70 2010 DNI Recidivism Summary, supra footnote 68.
71 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.
72 Lt. Gen. James Clapper, Director of National Intelligence, The State of Intelligence Reform 10 Years After 9/11, Joint
Hearing of the Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence, U.S.
House of Representatives, September 13, 2011. See also U.S. Congress, House Committee on Armed Services,
Subcommittee on Oversight and Investigations, Leaving Guantanamo: Policies, Pressures, and Detainees Returning to
the Fight (January 2012), available at http://armedservices.house.gov/index.cfm/files/serve?File_id=24338661-2a6d-
49c6-b9a5-bb0721825a69/.
73 Intelligence Authorization Act of FY2012, P.L. 112-87, §307.
74 Office of the Director of National Intelligence, Summary of the Reengagement of Detainees Formerly Held at
Guantanamo Bay, Cuba (March 2012), available at http://dni.gov/reports/
March%202012%20Summary%20of%20Reengagement.pdf.
75 Id.
76 Office of the Director of National Intelligence, Summary of the Reengagement of Detainees Formerly Held at
Guantanamo Bay, Cuba (as of Jan.15, 2014), available at http://www.dni.gov/files/documents/
Guantanamo%20Unclassified%20Release_March%202015_FINAL.pdf.
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States or its interests is closer to 6%.77 Some have raised similar criticisms with respect to the
accuracy of more recent DNI estimates.78 Because the intelligence data forming the basis for the
DNI’s reports remain classified, it is not possible to explain the discrepancy between their
estimates of detainee recidivism numbers and those estimates deriving from publicly available
sources.
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, 112th Congress. 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,79 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.80
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
77 See Peter Bergen, Katherine Tiedemann, and Andrew Lebovich, How Many Gitmo Alumni Take Up Arms?, FOREIGN
POLICY online, January 11, 2011, available at http://www.foreignpolicy.com/articles/2011/01/11/
how_many_gitmo_alumni_take_up_arms.
78 See Andy Worthington, Future of Freedom Foundation, Guantánamo and Recidivism: The Media’s Ongoing Failure
to Question Official Statistics, March 13, 2012, available at http://www.fff.org/comment/com1203k.asp.
79 See supra, discussion in “Scope of Detention Authority Conferred by the AUMF.”
80 The earlier version of Section 1021 contained in S. 1253 (in that bill numbered Section 1031) had included similar
language defining “covered persons,” but rather than “affirming” detention authority under the AUMF, it directly
authorized the Armed Forces to detain covered persons “captured in the course of hostilities authorized by the [AUMF]
as unprivileged enemy belligerents,” and permitted their detention until “the end of hostilities against the nations,
organizations, and persons subject to the [AUMF].” The White House reportedly objected to the language “captured in
the course of hostilities” because it could be read to limit detentions to those captured during military operations and
not persons who are arrested under other circumstances. See Charlie Savage, Levin and McCain Strike Deal Over
Detainee Handling, THE CAUCUS (BLOG) NY TIMES (November 15, 2011, 3:19 PM),
http://thecaucus.blogs.nytimes.com/2011/11/15/levin-and-mccain-strike-deal-over-detainee-handling/.
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• 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.81
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.82 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.”83
This language, which remains in the final version of the act,84 along with a separate clause which
provides that nothing in Section 1021 “is intended to limit or expand the authority of the
President or the scope of the Authorization for the Use of Military Force,” makes clear that the
provision is not intended to either expand or limit the Executive’s existing authority to detain U.S.
citizens and resident aliens, as well as other persons captured in the United States. Such
detentions have been rare and subject to substantial controversy, without achieving definitive
resolution in the courts. While the Supreme Court in Hamdi recognized that persons captured
while fighting U.S. forces in Afghanistan could be militarily detained in the conflict with Al
Qaeda potentially for the duration of hostilities, regardless of their citizenship, the circumstances
in which persons captured in the United States may be subject to preventive military detention
have not been definitively adjudicated.85 Section 1021 does not attempt to clarify the
81 During the Senate floor debate over S. 1867 (112th Cong.), 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).
82 S.Amdt. 1126 (seeking to bar the long-term military detention of U.S. citizens) (not agreed to by a vote of 45-55).
83 S.Amdt. 1456.
84 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 Court of Appeals for the Second Circuit has interpreted
the phrase to cover U.S. citizens and lawful resident aliens irrespective of location. Hedges v. Obama, 724 F.3d170 (2d
Cir. 2013), cert. denied, 134 S. Ct. 1936 (2014). The Supreme Court’s decision in Hamdi seems to establish clear
detention authority with respect to those who engaged in relevant hostilities overseas, but not with respect to those
captured in other 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.
85 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
(continued...)
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circumstances in which a U.S. citizen, lawful resident alien, or other person captured within the
United States may be held as an enemy belligerent in the conflict with Al Qaeda. Consequently, if
the executive branch decides to hold such a person under the detention authority affirmed in
Section 1021, it is left to the courts to decide whether Congress meant to authorize such detention
when it enacted the AUMF in 2001.86
In restating the definitional standard the Administration uses to characterize its detention
authority, Section 1021 does not attempt to provide additional clarification for terms such as
“substantial support,” “associated forces,” or “hostilities.” For that reason, it may be subject to an
evolving interpretation that effectively permits a broadening of the scope of the conflict. The
provision does require the Secretary of Defense to brief Congress on how it is applied, including
with respect to “organizations, entities, and individuals considered to be ‘covered persons’ under
section 1021(b).” This language may be read to require an ongoing accounting of which entities
are considered to be “associated forces” or a description of what constitutes “substantial support.”
Although Section 1021 provides that it does not modify any existing detention authority
concerning “lawful resident aliens,” neither the NDAA nor any other federal statute provides a
definition of this term.87 It is possible that the drafters of the NDAA intended this category to
refer to the classification of aliens known as legal permanent residents (LPRs). Aliens with LPR
status are allowed to permanently reside in the United States, unless such status terminates as a
result of a final order of removal or exclusion. On the other hand, it is possible that the drafters of
the NDAA intended the term “lawful resident alien” to also include other aliens who are lawfully
present in the United States on a long-term basis but who do not have LPR status (e.g., an alien
lawfully present in the United States for an extended period pursuant to a student visa).
When signing the 2012 NDAA into law, President Obama claimed that Section 1021 “breaks no
new ground and is unnecessary,” as it “solely codifies established authorities”88—namely,
(...continued)
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.”
86 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.
87 Although the Immigration and Nationality Act (INA) contains a definition of “residence” for immigration purposes
and the Internal Revenue Code defines “resident alien” for tax purposes, these definitions are not coextensive. Compare
8 U.S.C. §1101(a)(33) with 26 U.S.C. §7701(b)(1)(A). It is unclear whether the drafters of the NDAA had either of
these definitions in mind when they used the term “lawful resident alien.” The 2012 NDAA is not the first instance
where legislation has used the term “lawful resident alien.” For example, a few legislative proposals introduced in the
mid-1990s but not enacted into law used the term to refer to a particular category of aliens eligible for government
benefits. See, e.g., H.R. 999, the Welfare Reform and Consolidation Act of 1995 (104th Cong.); H.R. 3960, the
American Health Security Act of 1994 (103rd Cong.). However, these bills defined “lawful resident aliens” differently
from one another, which seems to affirm the view that the term has no generally understood meaning.
88 Presidential Signing Statement on 2012 NDAA, supra footnote 3. 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, 112th Cong., 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
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detention authority conferred by the AUMF, as interpreted by the Supreme Court and lower court
decisions. President Obama also announced that he would “not authorize the indefinite military
detention without trial of American citizens,” regardless of whether such detention would be
permissible under the AUMF or the 2012 NDAA.
Mandatory Military Detention
The provision that appears to have evoked the most resistance on the part of the Administration,
Section 1022, generally requires at least temporary military custody for certain Al Qaeda
members and members of certain “associated forces” who are taken into the custody or brought
under the control of the United States as of 60 days from the date of enactment. This provision
does not apply to all persons who are permitted to be detained as “covered persons” under Section
1021, but only those captured during the course of hostilities who meet certain criteria. It
expressly excludes U.S. citizens from its purview, although it applies to lawful resident aliens
(albeit with the caveat that if detention is based on conduct taking place within the United States,
such detention is mandated only “to the extent permitted by the Constitution of the United
States”).89 Moreover, the President is authorized to waive the provision’s application if he submits
a certification to Congress that “such a waiver is in the national security interests of the United
States” (for discussion of executive’s implementation of Section 1022, including its exercise of
waiver authority, see infra at “Developments Since the Enactment of the 2012 NDAA”).
The mandatory detention requirement applies to covered persons captured in the course of
hostilities authorized by the AUMF, defining “covered persons” for its purposes as a person
subject to detention under Section 1021 who is determined
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination
with or pursuant to the direction al al-Qaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted
attack against the United States or its coalition partners.
Persons described above are required to be detained by military authorities pending “disposition
under the law of war,” as defined in Section 1021, except that additional requirements must first
be met before the detainee can be transferred to another country. Accordingly, such persons may
be (1) held in military detention until hostilities under the AUMF are terminated; (2) tried before
a military commission; (3) transferred from military custody for trial by another court having
jurisdiction; or (4) transferred to the custody of a foreign government or entity, provided the
transfer requirements established in Section 1028 of the act,90 discussed infra, are satisfied. If the
(...continued)
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.
89 As discussed supra, the term “lawful resident alien” is not defined by the 2012 NDAA or other federal statute, and
there may be some ambiguity as to who falls under this category.
90 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
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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.91
Section 1022 applies both to members of Al Qaeda and “associated forces.”92 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.93 A question might arise if an
associated force acts largely independently but coordinates some activity with Al Qaeda. Would
all of its members be subject to mandatory detention, or only those involved in units which
coordinate their activities with Al Qaeda? Perhaps this determination can be made with reference
to the specific attack the individual is determined to have attempted, planned, or engaged. In any
event, Section 1022 would not apply to a “lone wolf” terrorist with no ties to Al Qaeda or any
associated force.
What conduct constitutes an “attack ... against the United States coalition partners” is not further
clarified.94 It could be read to cover only the kinds of attacks carried out in a military theater of
(...continued)
between these two provisions could be read to mean that no person subject to the mandatory detention requirement of
Section 1022 may be transferred a foreign country unless the Secretary of Defense certifies that the transfer complies
with the criteria described under Section 1028, regardless of the current location of the person’s detention. The
Department of Defense appears to construe the interplay of Sections 1022 and 1028 in this fashion. See Letter from the
Secretary of Defense to Senator Carl Levin (November15, 2011) (hereinafter “DOD Letter”)(discussing relationship
between corresponding provisions in S. 1867), available at http://www.politico.com/static/
PPM229_111115_dodletter.html. On the other hand, it is possible that the certification requirement is only intended to
apply to those persons who are subject to mandatory detention under Section 1022 who are also currently being held at
Guantanamo.
91 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.
92 Although the final version of the 2012 NDAA uses “associated forces” (the same terminology that has been used to
define detention authority in habeas litigation), an earlier version of the defense authorization bill would have applied
to members of “affiliated entities.” S. 1253, §1032. “Affiliated entity” does not appear to have a set definition. The
recently released 2011 National Strategy for Counterterrorism (2011 Strategy), http://www.whitehouse.gov/sites/
default/files/counterterrorism_strategy.pdf distinguishes between “affiliates,” which are defined as “groups that have
aligned with” Al Qaeda, and “adherents,” which are “individuals who have formed collaborative relationships with, act
on behalf of, or are otherwise inspired to take action in furtherance of the goals of al-Qa‘ida—the organization and the
ideology—including by engaging in violence regardless of whether such violence is targeted at the United States, its
citizens, or its interests.” 2011 Strategy at 3. The 2011 Strategy also distinguishes “affiliates” from “associated forces”:
Affiliates is not a legal term of art. Although it includes Associated Forces, it additionally includes
groups and individuals against whom the United States is not authorized to use force based on the
authorities granted by the [AUMF]. The use of Affiliates in this strategy is intended to reflect a
broader category of entities against whom the United States must bring various elements of national
power, as appropriate and consistent with the law, to counter the threat they pose. Associated
Forces is a legal term of art that refers to cobelligerents of al-Qa‘ida or the Taliban against whom
the President is authorized to use force (including the authority to detain) based on the [AUMF]. Id.
at footnote 1.
93 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.
94 The presidential policy directive announcing procedures implementing Section 1022 defines an “attack” as “an act of
violence or the use of force that involves serious risk to human life,” with no further specification as to whether such an
act must occur in a military theater of operations. Presidential Directive on Section 1022, supra footnote 4, at 2.
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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,95 the Nigerian suspect
accused of trying to destroy an airliner traveling from Amsterdam to Detroit on Christmas Day
2009, although he was arrested by domestic law enforcement authorities, which suggests that the
statute is intended to consider future similar occurrences as “attacks against the United States”
that involve captures during the “course of hostilities.”
In response to Administration objections to the mandatory detention provision originally found in
S. 1253, 112th Congress, a new requirement was established in S. 1867, 112th Congress, which
was ultimately included in the enacted version of the 2012 NDAA, that the President must submit
to Congress, within 60 days of enactment, a report describing the procedures for implementing
the mandatory detention provision. The procedural requirements were added to respond to
criticism that the measure would interfere with law enforcement and interrogation efforts, among
other perceived risks. The submission was required to include procedures for designating who is
authorized to determine who is a covered person for the purpose of the provision and the process
by which such determinations are to be made. Other procedures to be described include those for
preventing the interruption of ongoing surveillance or intelligence gathering with regard to
persons not already in the custody or control of the United States; precluding implementation of
the determination process until after any ongoing interrogation session is completed and
precluding the interruption of an interrogation session; precluding application of the provision in
the case of an individual who remains in the custody of a third country, where U.S. government
officials are permitted access to the individual; and providing for an exercise of waiver authority
to accomplish the transfer of a covered person from a third country, if necessary. This requirement
applies only to persons taken into custody on 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
(...continued)
However, it limits the scope of application of the procedures for implementing Section 1022 to persons arrested or
otherwise taken into custody by the FBI or other law enforcement agencies, id., suggesting that a broader interpretation
of “attack” may have been adopted.
95 See, e.g., 157 CONG. REC. S8097 (daily ed. December 1, 2011) (statement of Sen. Ayotte). See also White House
Statement on S. 1867, supra footnote 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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Section 1022.96 The act does not appear to preclude the implementation of more than one process
for making the determination that someone qualifies as a covered person subject to mandatory
military detention, perhaps depending on whether the person is initially in military custody or the
custody of law enforcement officials. Nor does it seem to preclude the use of a single procedure
to determine whether a person is covered by Section 1022 and the appropriate disposition under
the law of war, which could obviate the necessity for transferring a person to military custody.
Whatever process is adopted to make any of these determinations would likely implicate
constitutional due process requirements, at least if the detainee is located within the United States
or is a U.S. citizen, and would likely be subject to challenge by means of habeas corpus.97 Section
1022 does not prevent Article III trials of covered persons,98 although any time spent in military
custody could complicate the prosecution of a covered defendant.99
The Obama Administration opposed this provision, even as the language was revised.100 During
Senate deliberation concerning S. 1867, 112th Congress, the White House claimed that its
mandatory military detention requirement constituted an “unnecessary, untested, and legally
controversial restriction of the President’s authority to defend the Nation from terrorist threats”
that would “tie the hands of our intelligence and law enforcement professionals.”101
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.102 Section 1022, as it emerged from conference, provides that it
96 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.
97 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).
98 No funds authorized to be appropriated under the 2012 NDAA were permitted to be used to transfer detainees to the
United States from Guantanamo for trial. Subsequent appropriations and authorization enactments effectively extended
the bar on detainee transfers through FY2013. See FY2013 Consolidated and Full Year Continuing Appropriations Act,
P.L. 113-6, Div. B, §530 and Div. C., §8109; 2013 NDAA, P.L. 112-239, §1027.
99 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.
100 For example, during Senate consideration of S. 1867, 112th Cong., Secretary of Defense Panetta expressed doubt
that its mandatory military detention provision offered any advantage to DOD or to U.S. national security interests,
predicting 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 90.
101 See White House Statement on S. 1867, supra footnote 1, at 2.
102 White House Press Briefing by Press Secretary Jay Carney, December 15, 2011, available at
(continued...)
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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,103 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.”104
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.”105
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.”106 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-
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.107
On February 28, 2012, President Obama issued a directive concerning the implementation of
Section 1022, and announcing circumstances in which the mandatory detention requirements
(...continued)
http://www.whitehouse.gov/the-press-office/2011/12/15/press-briefing-press-secretary-jay-carney-12152011.
103 See FBI Oversight, Hearing before the Senate Committee on the Judiciary, 112th Cong. 2d Sess. (December 14,
2011)(Statement of FBI Director Robert Mueller), transcript available at 2011 WL 6202873.
104 Statement from the White House Press Secretary on the NDAA Bill, December 14, 2011, printed in National
Defense Authorization Act for Fiscal Year 2012—Conference Report, 157 CONG. REC. S8632-01, S8664 (2011).
105 Id.
106 Presidential Signing Statement on 2012 NDAA, supra footnote 3.
107 Id.
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would be waived. This directive is discussed in more detail infra at “Developments Since the
Enactment of the 2012 NDAA.”
Periodic Review of Detention of Persons at Guantanamo
Section 1023 addresses Executive Order 13567, pertaining to detention reviews at Guantanamo.
Unlike H.R. 1540, as originally passed by the House of Representatives of the 112th Congress,108
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,109 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 to
• clarify that the purpose of the periodic review is not to review the legality of any
particular detention, but to determine whether a detainee poses a continuing
threat to U.S. security;
• clarify that the Secretary of Defense, after considering the results and
recommendations of a reviewing panel, is responsible for any final decision to
release or transfer a detainee and is not bound by the recommendations; and
• ensure that appropriate consideration is given to a list of factors, including the
likelihood the detainee will resume terrorist activity or rejoin a group engaged in
hostilities against the United States; the likelihood of family, tribal, or
government rehabilitation or support for the detainee; the likelihood the detainee
may be subject to trial by military commission; and any law enforcement interest
in the detainee.
The Administration had objected to this provision because it said it would shift to the Defense
Department the responsibility for what had been a collaborative, interagency review process.110
108 Among other things, the review process contemplated by Section 1036 of H.R. 1540, as initially passed by the
House during the 112th Congress, would have required that the initial review panel consist of military officers rather
than senior officials from multiple agencies; imposed more detailed and stringent criteria for assessing whether an
individual’s continued detention is no longer warranted; and limited the assistance private counsel may provide to
detainees. Section 1036 also would have required the establishment of an interagency review board, composed of
senior officials of the Department of State, the Department of Defense, the Department of Justice, the Department of
Homeland Security, the Joint Chiefs of Staff, and the Office of the Director of National Intelligence. The interagency
review board was to be responsible for reviewing the military panel’s review for clear error. In a written statement
regarding H.R. 1540, the White House identified Section 1036 as one of several provisions within the bill that might
contribute to a decision to veto. It asserted that the periodic review process established by Section 1036
undermines the system of periodic review established by the President’s ... Executive Order by
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.
109 H.R. 1540 (as initially passed by the House, 112th Cong.) §1036.
110 White House Statement on S. 1867, supra footnote 1, at 2.
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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.”111
Status Determination of Wartime Detainees
Section 1024 of the 2012 NDAA, which tracks a provision contained in S. 1867, 112th Congress,
requires the Secretary of Defense, within 90 days of enactment, to submit a report to
congressional defense and intelligence committees explaining the procedures for determining the
status of persons 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.112
In the case of any unprivileged enemy belligerent who will be held in long-term detention, clause
(b) of the provision requires the procedures to provide the following elements:
(1) A military judge shall preside at proceedings for the determination of status of an
unprivileged enemy belligerent.
111 Presidential Signing Statement on 2012 NDAA, supra footnote 3.
112 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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(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 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).113 The version of
Section 1024 reported out of conference modified the provision to explain that the procedures
applicable in the case of long-term detention need not apply to persons for whom habeas corpus
review is available in federal court, which suggests it does not apply to Guantanamo detainees.
According to the explanatory material in the conference report, the Secretary of Defense is
authorized to determine what constitutes “long-term detention” as well as the “the extent, if any,
to which such procedures will be applied to detainees for whom status determinations have
already been made prior to” the date of enactment.
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.114 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.115 Captured unprivileged enemy
belligerents destined for trial by military commission or Article III court, or to be transferred to a
foreign country or entity, would not appear to be entitled to be represented by military counsel or
to have a military judge preside at their status determination proceedings.
The White House 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.”116 When signing the 2012
NDAA into law, President Obama declared that, “consistent with congressional intent as detailed
in the Conference Report,” the executive branch would “interpret section 1024 as granting the
Secretary of Defense broad discretion to determine what detainee status determinations in
Afghanistan are subject to the requirements of this section.”117
113 See supra section headed “Status Determinations for Unprivileged Enemy Belligerents.”
114 Unlike the corresponding provision in S. 1253, Section 1031 of S. 1867 did not use “long-term” to modify
“detention under the law of war.”
115 H.Rept. 112-329 at 160.
116 White House Statement on S. 1867, supra footnote 1, at 3.
117 Presidential Signing Statement on 2012 NDAA, supra footnote 3.
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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.118
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
prohibited 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 have been contained in
subsequent appropriations and authorization legislation, including the 2015 NDAA and the 2015
Cromnibus.119
Section 1027 prohibited 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 was 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.120
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 in
recent years intended to limit executive discretion to transfer or release Guantanamo detainees
into the United States. Initially, these measures barred detainees from being released into the
United States, but still preserved executive discretion to transfer detainees into the country for
purposes of criminal prosecution.121 However, more recent funding limitations, including those
contained in the 2012 Minibus and the 2012 CAA, prohibited the transfer of Guantanamo
118 Id.
119 2015 NDAA, P.L. 113-291, §1032; 2015 Cromnibus, P.L. 113-235, Div. B, §529, Div. C, §8113, and Div. I, §512.
120 The restriction also generally precludes the transfer or release of detainees to U.S. territories or possessions.
121 For further discussion of these limitations, see CRS Report R40754, Guantanamo Detention Center: Legislative
Activity in the 111th Congress, by Michael John Garcia.
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detainees into the United States for any purpose, including criminal prosecution.122 This version
of the restriction was extended until the end of FY2013 by the 2013 NDAA,123 through the end of
FY2014 by the 2014 NDAA and the 2014 Omnibus,124 and then through 2015 by the 2015 NDAA
and the 2015 Cromnibus.125 The measures appear to have been motivated in part by the
Administration’s plans to transfer Khalid Sheik Mohammed and several other Guantanamo
detainees to the United States to stand trial in an Article III court. As no civilian court operates at
Guantanamo, the legislation appears to have effectively made military commissions the only
viable forum for the criminal prosecution of Guantanamo detainees, at least until the end of
FY2014.
During congressional deliberations over H.R. 1540, as originally passed by the House during the
112th Congress, the Obama Administration issued a statement expressing opposition to the
provision in the bill which barred the transfer of detainees into the United States.126 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.127
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.”128 He also asserted that the
provision could, “under certain circumstances, violate constitutional separation of powers
principles,” but did not specify a situation where such a conflict may arise. He further claimed
that when Section 1027 would operate in a manner violating separation of powers principle, his
Administration would interpret the provision to avoid a constitutional conflict.
122 2012 Minibus, P.L. 112-55, §532; 2012 CAA, P.L. 112-74, §§511, 8119. See also 2011 NDAA, P.L. 111-383,
§1032 (expired at the end of FY2011); 2011 CAA, P.L. 112-10, §1112 (extended beyond FY2011 and through
December 16, 2011, via Division D of the 2012 Minibus).
123 2013 NDAA, P.L. 112-239, §1027; FY2013 Consolidated and Full Year Continuing Appropriations Act, P.L. 113-6,
Div. B, §530 and Div. C., §8109.
124 2014 NDAA, P.L. 113-66, §1034; 2014 Omnibus, P.L. 113-76, Div. B, §528, Div. C, §8110, and Div. G, §537.
125 2015 NDAA, P.L. 113-291 §1033; 2015 Cromnibus, P.L. 113-235, Div. B, §528 and Div. C, §8112.
126 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.
127 White House Statement on H.R. 1540, supra footnote 1, at 2.
128 Presidential Signing Statement on 2012 NDAA, supra footnote 3.
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Transfer or Release of Guantanamo Detainees to Foreign Countries
Section 1028 limited funds made available to DOD for the 2012 fiscal year from being used to
transfer or release Guantanamo detainees to foreign countries or entities, except when certain
criteria were met. These limitations did 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 mirrored those contained in the
2012 CAA,129 both of which remained in effect for the duration of the 2012 fiscal year (and which
were effectively extended by continuing resolution until March 27, 2013, by the 2013 CAR,130
and until the end of FY2013 by the 2013 NDAA and the FY2013 Consolidated and Full Year
Continuing Appropriations Act131), 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 FY2011.132 Congressional notification
requirements relating to detainee transfers which were subsequently established by the
Intelligence Authorization Act for FY2012 (P.L. 112-87) did not modify existing legislative
restrictions on transfers from Guantanamo.133
Restrictions on Guantanamo detainee transfers appear motivated by congressional concern over
possible recidivism by persons released from U.S. custody.134 Supporters of these funding
restrictions argue that they significantly reduce the chance that a detainee will reengage in
terrorist activity if released, while critics argue that they are overly stringent and hamper the
Executive’s ability to transfer even low-risk detainees from U.S. custody. In any event, detainee
transfers became far more infrequent after the 2011 NDAA and CAA went into effect, though the
degree to which these restrictions were 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
was required to first certify to Congress that the destination country or entity
• was not presently a designated state sponsor of terrorism or terrorist organization;
129 2012 CAA, P.L. 112-74, §8120.
130 Continuing Appropriations Resolution, 2013 (P.L. 112-175) (generally extending funding restrictions imposed by
2012 CAA or 2012 Minibus until March 27, 2013).
131 P.L. 112-239, §1028; FY2013 Consolidated and Full Year Continuing Appropriations Act, P.L. 113-6, Div. C.,
§8110.
132 Most of the applicable restrictions on detainee transfers contained in the 2011 NDAA and CAA concern funds made
available for FY2011 (which ended on September 30, 2011). However, the 2011 NDAA’s prohibition on the transfer of
detainees to any country where there has been a confirmed case of recidivism by a previously transferred detainee
expired in January 2012. 2011 NDAA, P.L. 111-383, §1333(c) (specifying that prohibition lasts for a one-year period
beginning on the date of enactment). The restrictions contained in the 2011 CAA were temporarily extended via
continuing resolution beyond the 2011 fiscal year. 2012 Minibus, P.L. 112-55, Div. D (generally extended funding for
federal agencies pursuant to the terms and conditions of the 2011 CAA through December 16, 2011).
133 Intelligence Authorization Act for FY2012, P.L. 112-87, §308 (requiring congressional notification 30 days before a
Guantanamo detainee may be transferred or released to a foreign country, and specifying that this requirement does not
modify transfer restrictions established by the 2012 NDAA).
134 See supra, discussion at ““Recidivism” and Restrictions on Transfer.”
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• maintained control over each detention facility where a transferred detainee may
have been housed;
• was not presently facing a threat likely to substantially affect its ability to control
a transferred detainee;
• agreed to take effective steps to ensure that the transferred person did not pose a
future threat to the United States, its citizens, or its allies;
• agreed to take such steps as the Secretary deemed necessary to prevent the
detainee from engaging in terrorism; and
• agreed to share relevant information with the United States related to the
transferred detainee that may affect the security of the United States, its citizens,
or its allies.
These certification requirements virtually mirror those contained in the 2011 NDAA and CAA.135
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.
Section 1028 also generally prohibited transfers from Guantanamo to any foreign country or
entity if there was a confirmed case of a detainee previously transferred to that place or entity
who has subsequently engaged in any terrorist activity. The prohibition did not apply in the case
of detainees who were to be transferred pursuant to either a pretrial agreement in a military
commission case, if entered prior to the enactment, or a court order.
The certification requirements involving actions agreed to by the receiving country to mitigate the
threat and the bar related to recidivism could be waived if the Secretary of Defense determined,
with the concurrence of the Secretary of State and in consultation with the Director of National
Intelligence, that alternative actions would 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 could not be certified as eliminating all relevant risks, alternative actions would
substantially mitigate the risk.136 In the case of a waiver of the provision barring transfers
anywhere recidivism has occurred, the Secretary was permitted to issue a waiver if alternative
actions would be taken to mitigate the risk of recidivism. Any transfer pursuant to a waiver was
required to first 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 were required
to 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 was not
possible to certify that all risks have been eliminated (if applicable); and a summary of the
alternative actions contemplated.
135 2011 NDAA, P.L. 111-383, §1033; 2011 CAA, P.L. 112-10, §1013.
136 While the funding restrictions on detainee transfers contained in the 2011 NDAA and CAA afforded the Secretary
of Defense limited waiver authority, they did not permit the waiver of certification requirements. Moreover, although
the Section 1028 permits the Secretary to waive the prohibition on the transfer of detainees where there is a confirmed
case of recidivism, it establishes more stringent requirements for the exercise of this authority than the 2011 NDAA or
CAA. See 2011 NDAA, P.L. 111-383, §1033; 2011 CAA, P.L. 112-10, §1113.
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The transfer restrictions in Section 1028 generally applied to any “individual detained at
Guantanamo,” other than a U.S. citizen or servicemember;137 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 appeared 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 similarly worded provisions in successive
legislation would be interpreted so broadly as to cover such persons remains to be seen. The
“requirements” of the section also applied 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).138
During congressional deliberations over the House and Senate bills competing to become the
2012 NDAA, the White House and DOD expressed disapproval of the transfer certification
requirements contained in each bill.139 In a statement made upon signing the 2012 NDAA into
law, President Obama stated that 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.140
As discussed infra, the restrictions imposed on detainee transfers imposed by the 2012 NDAA
(and extended by the 2013 NDAA) were somewhat relaxed by the 2014 NDAA.141
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
137 Section 1028(e)(2) defines “individual detained at Guantanamo” to exclude U.S. citizens and servicemembers from
its scope.
138 See supra section describing §1022 (“Mandatory Military Detention”).
139 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 1, 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 100.
140 Presidential Signing Statement on 2012 NDAA, supra footnote 3.
141 See infra, discussion at “FY2014 NDAA Detainee Provisions.”
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and the Secretary of Defense prior to the initiation of any prosecution in certain cases. The
original provision applied to the trial of any non-citizen for an offense for which the defendant
could be tried by military commission. The version that emerged from conference applies only to
persons covered by the mandatory detention requirement in Section 1022 and any other person
held in military detention pursuant to authority affirmed by Section 1021. As amended in
conference, the consultation requirement does not apply to persons arrested in the United States
unless they are non-citizens who meet the criteria for mandatory detention. However, it does
seem to apply to any case of a U.S. citizen who may be detained abroad pursuant to the AUMF
authority affirmed in Section 1021.
The consultation is to involve a discussion of whether the prosecution should take place in a U.S.
district court or before a military commission, and whether the individual should be transferred
into military custody for purposes of intelligence interviews. The White House expressed
opposition to this provision in its original form, claiming that robust interagency coordination
already exists between federal agencies in terrorism-related prosecutions, and asserting that the
provision “would undermine, rather than enhance, this coordination by requiring institutions to
assume unfamiliar roles and could cause delays in taking into custody individuals who pose
imminent threats to the nation’s safety.”142
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.143
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.144 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 pleaded 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.145
142 White House Statement on H.R. 1540, supra footnote 1, at 3.
143 Presidential Signing Statement on 2012 NDAA, supra footnote 3.
144 2012 NDAA, P.L. 112-81, H.R. 1540, §1034 (amending 10 U.S.C. §949m(b)).
145 Id. (amending 10 U.S.C. §949i).
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Section 1034 contains several technical amendments to the MCA that were inserted into the
Senate version of the FY2012 Act prior to conference. The first change amends 10 U.S.C. Section
949A(b)(2)(c) to provide that the right to representation by counsel attaches at the time at which
charges are “sworn” rather than “preferred.” Several changes amend the language describing the
composition of the Court of Military Commission Review to clarify that the judges on the court
need not remain sitting appellate judges on another military appellate court to remain qualified to
serve on the Court of Military Commission Review. Another change clarifies that the review
authority of the U.S. Court of Appeals for the D.C. Circuit is limited to determinations of matters
of law, apparently to resolve ambiguity in 10 U.S.C. Section 950G., which designates the
appellate court for the D.C. Circuit as having exclusive jurisdiction to review final military
commission judgments and defines the scope and nature of such review.146 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.
Developments Since the Enactment of the
2012 NDAA
The Department of Defense has published guidelines for the implementation of the periodic
review process established for Guantanamo detainees via executive order, which was required by
Section 1023 of the NDAA, and announced that periodic review boards would soon begin for 71
of the detainees.147 Those periodic review board proceedings have subsequently commenced.148
The Executive also submitted a report to congressional committees regarding implementation of
the status determination process for wartime detainees required under Section 1024 of the act.
Restrictions on Guantanamo detainee transfers contained in the 2012 NDAA and prior and
subsequent legislative enactments are widely believed to have constrained executive efforts to
transfer detainees to foreign custody.149 After Congress relaxed the transfer restriction in the 2014
NDAA,150 the Administration has stepped up the pace of detainee transfers, achieving the
placement of a number of detainees in late 2014 to early 2015.
146 The Supreme Court may review by writ of certiorari a final judgment by the D.C. Circuit Court of Appeals. 10
U.S.C. §950G(e).
147 Rosenberg, supra footnote 60. Those to receive periodic review board hearings include 46 detainees who had been
designated too dangerous to release but not prosecutable and 25 other detainees who were previously listed as
candidates for trial by military commission or civilian court.
148 See Department of Defense Press Release, supra footnote 61 (January 2014 announcement of completion of first
periodic review board proceeding).
149 Of the 166 detainees remaining at Guantanamo at the end of 2012, 56 were reportedly cleared by executive
authorities for transfer pending negotiations with potential recipient countries, while another 30 detainees from Yemen
could be repatriated if conditions there improve. Another 46 detainees were determined to be too dangerous to permit
release, but are not being considered for military commission trial. Three of the detainees were convicted, charges were
pending against seven others, and 24 detainees were under review for possible prosecution. See Government
Accountability Office (GAO) Report 13-31, Guantánamo Bay Detainees: Facilities and Factors for Consideration If
Detainees Were Brought to the United States 9 (November 2012). As of the date of this report, 44 more detainees were
transferred from Guantanamo to foreign countries, reducing the detainee population to 122. See Andrei Scheinkman et
al., “The Guantanamo Docket,” NY TIMES, at http://projects.nytimes.com/guantanamo.
150 2014 NDAA, P.L. 113-66, §1035.
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Prior to the enactment of the 2012 NDAA, it had been exceedingly rare for U.S. authorities to
transfer a suspected terrorist from civilian to military custody. Section 1022 of the act, which
generally requires foreign members of Al Qaeda or associated forces to be transferred (at least
temporarily) to military custody, was seen by some observers as potentially having a profound
impact on existing practice. When signing the 2012 NDAA into law, President Obama expressed
opposition to the provision, and stated that his Administration would interpret and implement
Section 1022 in a manner “that best preserves the same flexible approach that has served us so
well for the past 3 years.”151 He further mentioned the provision’s inclusion of authority for the
President to waive its transfer requirements when he certified to Congress that it was in the
national security interest of the United States to do so.
Section 1021 of the 2012 NDAA has continued to draw criticism on the basis that it permits
detention without trial of certain individuals, possibly including U.S. citizens and others in the
United States. A federal judge enjoined the detention of persons on the basis of providing support
to or associating with belligerent parties under one prong of the definition,152 but the injunction
was reversed on appeal due to lack of standing.153
Presidential Policy Directive 14
On February 28, 2012, the White House issued a presidential policy directive describing how it
would implement Section 1022 and waiving the mandatory military detention requirement for
several categories of persons.154 The directive reiterates that Section 1022 will be implemented in
a manner that enables the Executive to largely preserve existing policies involving the handling of
terrorist suspects,155 and states that the FBI will continue to have “lead responsibility for
investigations of terrorist acts or terrorist threats by individuals or groups within the United
States, as well as for related intelligence collection activities within the United States.”156
The directive declares that, acting pursuant to the statutory waiver authority provided under
Section 1022, the President has waived application of the provision’s military transfer
requirements when
• a person in U.S. custody is a lawful permanent resident alien (i.e., green-card
holder) who is arrested in the United States on the basis of conduct occurring
inside the country;
151 Presidential Signing Statement on 2012 NDAA, supra footnote 3.
152 Hedges v. Obama, 890 F. Supp. 2d 424 (S.D.N.Y. 2012). For a discussion of this case, see CRS Report R42337,
Detention of U.S. Persons as Enemy Belligerents, by Jennifer K. Elsea.
153 Hedges v. Obama, 724 F.3d 170 (2d Cir. 2013), cert. denied, 134 S. Ct. 1936 (2014).
154 Presidential Policy Directive on Section 1022, supra footnote 4.
155 The White House has stated that the “procedures are intended to ensure that the executive branch can continue to
utilize all elements of national power—including military, intelligence, law enforcement, diplomatic, and economic
tools—to effectively confront the threat posed by al-Qa’ida and its associated … and will retain the flexibility to
determine how best to apply those tools to the unique facts and circumstances we face in confronting this diverse and
evolving threat.” White House, Fact Sheet: Procedures Implementing Section 1022 of the National Defense
Authorization Act for Fiscal Year 2012 (February 28, 2012), available at http://www.whitehouse.gov/sites/default/files/
ndaa_fact_sheet.pdf.
156 Presidential Directive on Section 1022, supra footnote 4, at 9-10.
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• a person has been arrested by a federal agency in the United States on charges
other than terrorism, unless he is subsequently charged with a terrorism offense
and held in federal custody on such charges;
• a person is arrested by state or local law enforcement, pursuant to state or local
authority,157 and is thereafter transferred to federal custody;
• placing a foreign country’s nationals or residents in U.S. military detention would
impede counterterrorism cooperation, including on matters related to
intelligence-sharing or assistance in the investigation or prosecution of suspected
terrorists;
• a foreign government indicates that it will not extradite or otherwise transfer a
person to the United States if he would be placed in military custody;
• transferring a person to military custody could interfere with efforts to secure the
person’s cooperation or confession; or
• transferring a person to military custody could interfere with efforts to jointly
prosecute the individual with others who are either not subject to military custody
or whose prosecution in a federal or state court had already been determined to
proceed.158
Some of these waivers apply to relatively definitive categories of individuals, such as the waiver
covering legal permanent residents who have been arrested for domestic activities and the waiver
applying to persons originally in state or local custody. The applicability of other waivers may
depend upon more individualized determinations, including the impact that a person’s military
transfer would have upon ongoing law enforcement activities or foreign relations.
The directive then establishes procedures for determining whether a person coming into U.S.
custody must be transferred to military detention as a “covered person” under Section 1022,
which requires at least temporary detention of any non-citizen whose detention is authorized by
the AUMF who is determined to be part of Al Qaeda or an associated force and to have
participated in the planning or carrying out of an actual or attempted attack against the United
States or its coalition partners. The procedures established by the directive do not apply when a
suspect is initially taken into custody by DOD; in such circumstances, the relevant requirements
of Section 1022 are interpreted as having “been satisfied … regardless of the authorities under
which the individual is captured, detained, or otherwise taken into custody.”159 The directive also
interprets Section 1022 as being inapplicable to individuals while they are in the custody of state
or local authorities or a foreign government. If a waiver applies, there is no need to make a final
determination as to whether an individual is a “covered person” under Section 1022.
Before an individual may be transferred from a federal agency to military custody, the directive
mandates that a multi-level review process must first occur. When a person is initially taken into
federal law enforcement custody, and there is probable cause to believe the individual is a
“covered person” under Section 1022, the arresting agency is required to notify the Attorney
General. The Attorney General then makes a separate determination as to whether there is
157 The specification that the person is arrested “pursuant to state or local authority” suggests that this waiver may not
be applicable when a state or local authority arrests a person for a violation of federal law.
158 Presidential Directive on Section 1022, supra footnote 4, at 4-5.
159 Id. at 3.
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sufficient information to conclude that probable cause exists to believe that Section 1022 applies
to the arrestee and that he is not exempted from the provision’s application by waiver. If probable
cause is found to be absent or an existing national security waiver is deemed applicable, no
further action is necessary. Otherwise, the Attorney General, in coordination with senior national
security officials, undertakes a closer review to determine whether Section 1022 applies to the
arrestee.160 If the Attorney General finds that there is clear and convincing evidence that the
individual falls under the auspices of Section 1022 (a higher evidentiary standard than employed
by the government when assessing whether someone may be detained as an enemy belligerent
under the AUMF161) and no waiver applies, a final determination may then be made that the
person is a “covered individual” with the concurrence of the Secretary of State, Secretary of
Defense, Secretary of Homeland Security, and Director of National Intelligence.
The directive also delegates authority to the Attorney General to waive Section 1022 “on an
individual, case-by-case basis” in the event that none of the blanket waivers applies. Such a
waiver must be consistent with the statutory requirement that it be in the national security interest
of the United States. A waiver can be issued without a final determination that an individual is a
“covered person” under Section 1022. The directive lists several factors that the Attorney General
is to take into account when determining whether such a waiver is warranted, including, inter
alia,
• the legal and evidentiary strength of any criminal charges that may be brought
against the person;
• the impact on intelligence collection which results from maintaining the person
in law enforcement custody;
• “the risk associated with litigation concerning the legal authority to detain the
individual pursuant to the 2001 AUMF”; and
• whether the prosecution of the individual in federal, state, or foreign court will
otherwise best protect U.S. national security interests.162
Even assuming that a person is determined to be covered by Section 1022 and that no waiver will
issue, his transfer to military custody may not be immediate. The directive specifies that, in the
event that a person is determined to be covered by Section 1022, the federal law enforcement
agency that took the arrestee into custody shall, in consultation with the Attorney General and
Secretary of Defense, take steps to ensure that the transfer does not result in the interruption of an
interrogation or compromise a national security investigation. The directive also provides that
160 Id. at 7. Appropriate agencies are required to assist in the collection of relevant information, including information
pertaining to the citizenship or immigration status of the arrestee.
161 In habeas litigation involving Guantanamo detainees, the executive branch has argued that it may satisfy its
evidentiary burden in support of a person’s detention when its factual claims are supported by a preponderance of
evidence, and reliance on this standard has been upheld by the D.C. Circuit Court of Appeals. See, e.g., Al Odah v.
United States, 611 F.3d 8 (D.C. Cir. 2010) (upholding government’s use of preponderance of evidence standard and
specifically rejecting petitioner’s argument that more rigorous clear and convincing evidence should be employed
instead), cert. denied, 131 S. Ct. 1812 (2011). The “preponderance of evidence standard” is generally interpreted to
require that the evidence presented by both sides taken together makes the facts in question more likely true than not.
See 29 AM. JUR. 2d Evid. §173. The “clear and convincing evidence” standard is somewhat more rigorous, requiring
that a proposition is highly probable, but not requiring that the evidence negate all reasonable doubt. Id.
162 Id. at 5.
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In no event may a Covered Person arrested in the United States or taken into custody … [by
a federal law enforcement agency] be transferred to military custody unless and until the
Director of the FBI or his designee has determined such a transfer will not interrupt any
ongoing interrogation, compromise any national security investigation, or interrupt any
ongoing surveillance or intelligence gathering with regard to persons not already in the
custody or control of the United States…. For these purposes, and to ensure that vital
intelligence is not lost, an “interrogation” is not limited to a single interview session and
extends until the interrogating agency or agencies determine that all necessary intelligence
gathering efforts have been exhausted.163
The 2012 NDAA permits the President to waive Section 1022’s military transfer requirements
only when “such a waiver is in the national security interests of the United States.”164 Some
observers have questioned whether all of the waivers issued or authorized under the directive are
consistent with this statutory requirement.165 In any event, significant procedural barriers—
including standing and political question concerns—may impede a legal suit challenging the
propriety of a waiver, making judicial settlement of the matter appear unlikely. If Members of
Congress disagree with the President’s implementation of Section 1022, further legislative action
may be considered.
The directive also provides that it is not intended to create any right or benefit enforceable by any
party against the United States. The directive also asserts that a determination that clear and
convincing evidence is lacking to subject a person to mandatory military detention is “without
prejudice to the question of whether the individual may be subject to detention under the 2001
AUMF, as informed by the laws of war, and affirmed by Section 1021 of the NDAA.”166
Presumably, this is in part because the evidentiary standard employed by the Executive for
assessing whether a person is subject to mandatory military detention under Section 1022 is
heavier than the standard used by the Executive when determining whether someone may be held
as an enemy belligerent under the AUMF.167
FY2013 NDAA Detainee Provisions
The House version of the 2013 NDAA, H.R. 4310, was passed in May 2012. The Senate passed
its version, S. 3254, as a substitute for the House bill on December 4, 2012. The House bill
contained a number of restrictions on detainee transfers and requirements to submit detailed
reports on such matters. The Senate bill contained extensions of certain restrictions from the 2012
NDAA. The bills addressed the issue of detention of U.S. persons inside the United States in
163 Presidential Directive on Section 1022, supra footnote 4, at 8-9.
164 P.L. 112-81, §1022(a)(4).
165 See, e.g., Jeremy Pelofsky and Laura MacInnis, Obama Lays out Detention Rules for al Qaeda Suspects, REUTERS
(February 28, 2012) (quoting joint statement by Senators Ayotte, McCain, and Graham that some aspects of the
directive “may contradict the intent” of the 2012 NDAA); Greg McNeal, How President Obama Plans to Implement
the NDAA’s Military Custody Provisions, FORBES ONLINE (February 29, 2012) (expressing skepticism that some of the
waivers, including those applying to persons arrested by state or local authorities, implicate U.S. national security
interests), available at http://www.forbes.com/sites/gregorymcneal/2012/02/29/how-president-obama-plans-to-
implement-the-ndaas-military-custody-provisions/.
166 Presidential Policy Directive on Section 1022, supra footnote 4, at 10.
167 See text accompanying footnote 161, supra. Section 1022 detainees are also a limited subset of those detainable
under Section 1021. Unlike those whose military detention is required, non-mandatory detainees need not have
participated in an attack or attempted attack.
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different ways. The Obama Administration had threatened to veto both bills due to the restrictions
on detainee transfers from Guantanamo, among other provisions.168 The House and Senate met in
conference to resolve differences between the competing bills, with the result that the detainee
measures from the House version were largely adopted. The version of the 2013 NDAA that was
reported from conference was subsequently approved by the House and Senate, and was
presented to the President on December 30, 2012. The 2013 NDAA became law on January 2,
2013 (P.L. 112-239). The following paragraphs describe the act’s provisions concerning wartime
detention.
Military trials for foreign terrorist suspects. The conference committee eliminated a provision
adopted during House consideration of H.R. 4310169 that would have required that a foreign
national who “engages or has engaged in conduct constituting an offense relating to a terrorist
attack” on a U.S. target, and who is subject to trial for the offense before a military commission,
must be charged before a military commission rather than in federal court. An identical provision
was found in the version of the 2012 NDAA originally passed by the House, but it was excised
from the enacted version.170
Detainee transfers from Guantanamo. Many provisions in the 2012 NDAA affecting detainees
at Guantanamo were scheduled to expire at the end of the fiscal year (though similar restrictions
concerning the transfer of Guantanamo detainees are found in appropriations enactments in effect
beyond that date). The 2013 NDAA effectively extends several of these provisions in the 2012
NDAA through FY2013, including the blanket funding bar on the transfer of Guantanamo
detainees into the country (§1027);171 the prohibition on using funds to construct or modify
facilities to house these detainees in the United States (§1026); and certification requirements and
restrictions on the transfer of Guantanamo detainees to foreign countries (§1028).172 These three
provisions were found in the versions of the bill passed by both the House and Senate. A
provision from the House bill that was not retained in the enacted version of the 2013 NDAA
would have barred any Guantanamo detainee who is “repatriated” to the former U.S. territories of
Palau, Micronesia, or the Marshall Islands from traveling to the United States.173
168 See Statement of Administration Policy on H.R. 4310—National Defense Authorization Act for FY 2013, May 15,
2012, available online at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/
saphr4310r_20120515.pdf; Statement of Administration Policy on S. 3254—National Defense Authorization Act for
FY 2013, November 29, 2012, available at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/
saps3254s_20121129.pdf.
169 H.Amdt. 1105 to H.R. 4310, 112th Cong. (§1088 of the engrossed bill).
170 See H.R. 1540 §1046 (as passed by the House of Representatives, 112th Cong.). For an analysis of the provision, see
CRS Report R41920, Detainee Provisions in the National Defense Authorization Bills, by Jennifer K. Elsea and
Michael John Garcia.
171 The Senate version, as amended on the floor, would have expanded Section 1027 of the 2012 NDAA to all
appropriated funds. S.Amdt. 3245.
172 Section 1043 of the House bill would have changed the deadline for certifications or waivers of requirements from
30 to 90 days prior to the transfer. The version ultimately passed by Congress keeps the 30-day deadline from the 2012
NDAA. Other new requirements added by the House would have called for an “assessment of the likelihood that the
individual to be transferred will engage in terrorist activity after the transfer takes place” and a “detailed summary... of
the individual’s history of associations with foreign terrorist organizations and the individual’s record of cooperation
while in the custody of or under the effective control of the Department of Defense.” These requirements were omitted
in conference.
173 Section 1035 of H.R. 4310 (engrossed in the House) is substantially similar to H.R. 1540 Section 1043 (as passed by
the House of Representatives, 112th Cong.), which was omitted during conference. For an analysis of the provision, see
CRS Report R41920, Detainee Provisions in the National Defense Authorization Bills. H.R. 4310, as originally passed
(continued...)
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Detainees held elsewhere abroad. The 2013 NDAA establishes new certification and
congressional notification requirements relating to the transfer or release of non-U.S. or non-
Afghan nationals held at the detention facility in Parwan, Afghanistan.174 The 2013 NDAA also
establishes reporting requirements relating to recidivism by former detainees in Afghanistan.175
Specifically, it requires a report to be filed within 120 days describing the “estimated recidivism
rates and the factors that appear to contribute to the recidivism of individuals formerly detained at
the Detention Facility at Parwan, Afghanistan, who were transferred or released, including the
estimated total number of individuals who have been recaptured on one or more occasion.” This
is similar to Section 1042 of the House-passed bill, which had no analogous provision in the
Senate version.176
The enacted version of the 2013 NDAA also retained a provision to require the Secretary of
Defense to submit a report regarding the use of naval vessels to detain persons pursuant to the
AUMF, and require congressional notification whenever such detention occurs.177 This provision
is presumably a response to the situation in 2011 when a Somali national was reportedly detained
on a U.S. vessel for two months and interrogated by military and intelligence personnel before
being brought into the United States to face criminal trial.178
Detention of persons in the United States. Despite the President’s assurances that the
Administration would not indefinitely detain Americans in the United States pursuant to the
detention authorization in the 2012 NDAA, that provision has continued to draw criticism from
some. The Senate adopted a measure that would have clarified that authorizations to use force are
not to be construed to permit detention of U.S. citizens or lawful permanent residents in the
United States unless Congress passes a law expressly authorizing such detention. This measure
was eliminated from the bill reported out of conference.179 An amendment to remove military
detention as an optional “disposition under the law of war” for persons in the United States was
proposed during floor debates in the House, but failed to garner sufficient votes for adoption.180
Instead, Section 1029 of the enacted version of the 2013 NDAA adopts a modified version of the
House provision on habeas corpus rights.181 It provides that nothing in the AUMF or 2012 NDAA
(...continued)
by the House, differed from the previous version in that it would deprive individuals only of rights named in Section
141 of the applicable Compact of Free Association.
174 The measure appears to be a modified version of Section 1041 of the House-passed bill.
175 P.L. 112-239 §1026.
176 Section 1042 of the House-passed version would have required an assessment of “recidivism rates and the factors
that cause or contribute to the recidivism of individuals formerly detained at the Detention Facility at Parwan,
Afghanistan, who are transferred or released, with particular emphasis on individuals transferred or released in
connection with reconciliation efforts or peace negotiations”; and “a general rationale of the Commander, International
Security Assistance Force, as to why such individuals were released.”
177 Section 1024 of H.R. 4310 (conference report) originated as Section 1040 of the House bill, which would have
required notification within five days rather than 30.
178 See supra footnote 21 and accompanying text.
179 The measure, S.Amdt. 3018, is similar to S. 2003 and a companion bill, H.R. 3702, 112th Cong., entitled the Due
Process Guarantee Act of 2011, and would have amended the Non-Detention Act, 18 U.S.C. §4001(a). For background
of the Non-Detention Act and the legislation introduced to amend it, see CRS Report R42337, Detention of U.S.
Persons as Enemy Belligerents, by Jennifer K. Elsea.
180 H.Amdt. 1127.
181 Section 1033 of H.R. 4310 (engrossed in the House, 112th Cong.).
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is to be construed as denying “the availability of the writ of habeas corpus” or denying “any
Constitutional rights in a court ordained or established by or under Article III of the Constitution”
with respect to persons who are inside the United States who would be “entitled to the availability
of such writ or to such rights in the absence of such laws.” The original provision from the
House-passed bill, as amended on the floor,182 would have covered only persons who are lawfully
present in the United States when detained pursuant to the AUMF. Under the floor amendment,
the provision would also have required the President to notify Congress within 48 hours of the
detention of such a person, and established a requirement that such persons be permitted to file
for habeas corpus “not later than 30 days after the person is placed in military custody.”
The 2013 NDAA does not contain substantive clarification of which U.S. persons are lawfully
subject to detention under the AUMF. Sections from the House bill setting forth congressional
findings with respect to detention authority under the AUMF and 2012 NDAA and with respect to
habeas corpus were omitted from the final version. Consequently, ambiguity with respect to who
can be lawfully detained in the United States appears to have been preserved, but the enacted
version of the 2013 NDAA provides reassurance that access to a court to petition for habeas
corpus will remain available to those who are detained in the United States pursuant to the
AUMF.
FY2014 NDAA Detainee Provisions
The House of Representatives passed a version of the National Defense Authorization Act for
FY2014, H.R. 1960, 113th Congress, on June 14, 2013. The Senate Armed Services Committee
ordered its version of the 2014 NDAA, S. 1197, 113th Congress, to be favorably reported out of
committee on June 20, 2013.183 On December 9, 2013, leaders on the House and Senate Armed
Services Committees announced an agreement on a new defense authorization bill for FY2014,
H.R. 3304, which was intended to resolve some of the key differences between the earlier House
and Senate proposals.184 One of those differences had been the bills’ approaches to enemy
belligerents housed at Guantanamo. House-passed H.R. 1960 would have preserved (and in some
ways strengthened) the existing limitations on the transfer of Guantanamo detainees to the United
States or to the custody of foreign governments. In contrast, S. 1197 would have relaxed
restrictions on transfers to foreign countries, and would have permitted detainees to be brought to
the United States for continued detention and possible trial. H.R. 3304 represented a compromise
between these approaches—extending the existing blanket prohibition on transferring
Guantanamo detainees to the United States through the end of 2014, but allowing the Executive
greater flexibility in determining whether to transfer detainees to foreign custody. H.R. 3304 was
thereafter passed by Congress and presented to the President, and the bill became law on
December 26, 2013, P.L. 113-66.
The enacted version of the 2014 NDAA contains provisions addressing the following detention
matters:
182 H.Amdt. 1126.
183 S.Rept. 113-44.
184 Senate Committee on Armed Services, Press Release, December 9, 2013, available at http://www.armed-
services.senate.gov/imo/media/doc/Press%20release.pdf.
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Transfer of Guantanamo detainees to the United States. Like the version of the 2014 NDAA
initially passed by the House, the enacted version of the 2014 NDAA contains an absolute bar on
the transfer of Guantanamo detainees into the United States for any purpose, and also prohibits
the building or modifying of facilities in the United States to house such detainees. Both
prohibitions expired at the end of 2014.185 Similar to House-passed H.R. 1960, the enacted
version of the 2014 NDAA requires a report to be submitted to Congress concerning the legal
rights that might attach to detainees if they are transferred to the United States.186
Transfer of Guantanamo detainees to foreign countries. In previous years, appropriations and
defense authorization enactments permitted Guantanamo detainees to be transferred to foreign
countries only when the Executive certified to Congress that stringent criteria have been satisfied.
The 2014 NDAA relaxes these restrictions in a manner closely resembling that found in S.
1197.187 Section 1035 of the 2014 NDAA establishes permanent restrictions on detainee transfers.
It permits detainee transfers under two specified circumstances: (1) when a detainee has been
ordered released by a competent U.S. court or the detainee has been assessed by a Periodic
Review Board as no longer posing a threat to the United States; (2) the Secretary of Defense
determines that the transfer is in the U.S. national security interest and that actions have been or
will be taken to substantially mitigate the risk of recidivism.188
The provision requires the Secretary to consider several factors in making such determinations,
but does not require written certification to Congress that identified goals have been achieved as a
prerequisite to executing a transfer. The Secretary is required, however, to provide the relevant
congressional committee with notice at least 30 days in advance before transferring a
Guantanamo detainee to a foreign country. The executive branch’s non-compliance with this
notification requirement when effectuating the transfer of five Taliban members from
Guantanamo in exchange for the release of U.S. Sergeant Bowe Bergdahl may inform future
congressional deliberations upon the nature of statutory restrictions on detainee transfers.189
185 2014 NDAA, P.L. 113-66, §§1033-1034.
186 Id. at §1039. An unclassified copy of this report, dated May 14, 2014, may be viewed at
https://www.documentcloud.org/documents/1160074-5-14-14-kadzik-to-pjl-re-fy14-ndaa.html.
187 Id. at §1035. In a statement issued following the signing of the 2014 NDAA, the White House characterized the
act’s relaxation of transfer restrictions as an “improvement” over prior law, but nonetheless viewed its restrictions as
still too stringent:
Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers
and, in certain circumstances, would violate constitutional separation of powers principles. The
executive branch must have the flexibility, among other things, to act swiftly in conducting
negotiations with foreign countries regarding the circumstances of detainee transfers. Of course,
even in the absence of any statutory restrictions, my Administration would transfer a detainee only
if the threat the detainee may pose can be sufficiently mitigated and only when consistent with our
humane treatment policy. Section 1035 nevertheless represents an improvement over current law
and is a welcome step toward closing the facility.
White House Press Release, Statement by the President on H.R. 3304, December 26, 2013, available at
http://www.whitehouse.gov/the-press-office/2013/12/26/statement-president-hr-3304.
188 2014 NDAA, P.L. 113-66, §1035. See also House Committee on Armed Services, Committee Print 2, Legislative
Text and Joint Explanatory Statement to Accompany the National Defense Authorization Act for FY2014 (December
2013), at 633.
189 See generally CRS Legal Sidebar WSLG956, Will the Guantanamo Bay Prisoner Exchange Influence Congress’s
Consideration of the Defense Authorization Bill?, by Michael John Garcia.
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Like House-passed H.R. 1960, the final version of the 2014 NDAA requires the Executive to
report to Congress regarding the capability of Yemen to detain, rehabilitate, or prosecute
detainees who might be transferred there.190 Unlike the earlier House bill, however, the enacted
legislation does not statutorily bar the transfer of any detainee to Yemen through 2014.191
Parwan detainees. Like the original House version, the enacted 2014 NDAA contains a
requirement that the Executive provide information regarding persons held by U.S. forces at the
detention facility in Parwan, Afghanistan, who have been deemed to constitute an enduring threat
to the United States.192 But whereas the original House proposal would have required an
unclassified summary to be made publicly available,193 the enacted version instead requires DOD
to submit a classified report to the Armed Forces Committees and for it to assess whether any
information contained in the report may be made public.
Military commissions. Like the initial House and Senate proposals, the enacted version of the
2014 NDAA clarifies procedures for the use of alternate members on military commissions
employed to try some detainees for war crimes.194 The 2014 NDAA also includes a provision
similar to one found in House-passed H.R. 1960 requiring that the chief defense counsel in
military commissions have the same rank as the chief prosecutor. However, the enacted version
allows this requirement to be waived in some circumstances (and followed by a report to
Congress), and additionally instructs DOD to issue guidance for the equitable allocation of
resources and support to the prosecution and defense in military commission proceedings.
Detention of persons in the United States. As result of a floor amendment,195 the initial House-
passed bill contained a provision similar to that in the 2013 NDAA which stated that those
apprehended pursuant to the AUMF in the United States were not barred from seeking habeas
relief, except that this provision would have applied only to U.S. citizens (§1040B(a)). The
section further provided that in cases where U.S. citizens apprehended within the United States
petition for habeas corpus, the “government shall have the burden of proving by clear and
convincing evidence that such citizen is an unprivileged enemy belligerent and there shall be no
presumption that any evidence presented by the government as justification for the apprehension
and subsequent detention is accurate and authentic” (§1040B(b)). This evidentiary standard
appears to be higher than that which the courts of the D.C. Circuit have applied to cases involving
Guantanamo detainees. In those cases, the government need only prove detention is lawful by a
preponderance of the evidence, and there is a presumption that official government records
submitted as evidence are authentic.196 The provision was not included in the final enactment,
which does not expressly address the detention of persons in the United States.
190 2014 NDAA, P.L. 113-66, §1038.
191 H.R. 3304, 113th Cong., §1040D.
192 2014 NDAA, P.L. 113-66, §1036.
193 H.R. 3304, 113th Cong., §1035.
194 2014 NDAA, P.L. 113-66, §1031.
195 H.Amdt. 150.
196 See supra footnote 161; CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major
Court Rulings, by Jennifer K. Elsea and Michael John Garcia.
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FY2015 NDAA Detainee Provisions
As part of its consideration of defense authorization bills for the 2015 fiscal year, Congress once
again considered U.S. wartime detention policy in the conflict with Al Qaeda, particularly as it
relates to the detention of suspected enemy belligerents at the Guantanamo detention facility. The
House passed its version of the 2015 National Defense Authorization Act (2015 NDAA), H.R.
4435, 113th Congress, on May 22, 2014. It provided for the extension of existing limitations on
the transfer of Guantanamo detainees to the United States through 2015, and did not alter those
permanent laws governing the transfer of detainees to the custody of foreign governments. In
contrast, the version of the 2015 NDAA reported out of the Senate Armed Services Committee, S.
2410, 113th Congress, would have significantly altered existing restrictions on the transfer of
Guantanamo detainees into the United States, and would have potentially enabled the Executive
to transfer most of the current detainee population into the country for continued detention or
trial. S. 2410, as reported, would also have modified current law by barring the transfer of
detainees to Yemen for the duration of 2015.
The Senate did not take up S. 2410. Instead, House and Senate negotiators drafted a compromise
version of the 2015 NDAA, H.R. 3979, which was enacted into law on December 19, 2014. As
enacted, the 2015 NDAA extends the prohibitions on the use of funds to transfer detainees to the
United States or to construct or modify facilities to house detainees in the United States until
December 31, 2015. It also continues the restrictions on transferring detainees to other countries
enacted as part of the 2014 NDAA.
Shortly after H.R. 4435 was passed by the House and S. 2410 was ordered reported by the Senate
Armed Services Committee, the United States transferred five Taliban detainees from
Guantanamo as part of an exchange to effectuate the release of U.S. Army Sergeant Bowe
Bergdahl, who had been held captive by Taliban-affiliated forces for several years. In completing
this prisoner exchange, the Executive did not comply with notification requirements contained in
Section 1035 of the 2014 NDAA, which require it to notify Congress at least 30 days before a
detainee transfer occurs. The Executive has asserted that Section 1035 should not be interpreted
to apply to the exchange, as it would have interfered with the President’s attempt to rescue a U.S.
soldier and potentially raise constitutional concerns.197 In enacting the 2015 NDAA, Congress did
not modify the transfer or congressional notification requirements contained in Section 1035 of
the 2014 NDAA. Accordingly, it seems possible that the Executive may continue to maintain that
current law does not require prior congressional notification before a Guantanamo detainee is
transferred in all circumstances.
FY2016 NDAA Detainee Provisions
H.R. 1735
The House passed its version of the 2016 National Defense Authorization Act (2016 NDAA),
H.R. 1735, on May 15, 2015. After rejecting a floor amendment that would have eased transfer
197 For further discussion, see CRS Legal Sidebar WSLG956, Will the Guantanamo Bay Prisoner Exchange Influence
Congress’s Consideration of the Defense Authorization Bill?, by Michael John Garcia.
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restrictions after the Administration’s submission of a detailed plan to close the Guantanamo
detention facility,198 the House voted to clamp down on detainee transfers, prohibiting them
altogether in certain circumstances. The bill would also add new elements to reports on the
detainee recidivism,199 and would require receipt of a set of unredacted correspondence and
documents related to the Bergdahl-Taliban Five swap, limiting expenditures by the Office of the
Secretary of Defense until their submission is accomplished. Some of the proposed restrictions
would remain in effect until the end of 2016, while others would remain in place for two years
after the bill’s enactment. The Administration has objected to the Guantanamo provisions and
threatened to recommend a presidential veto if Congress approves them.200
Transfer of Guantanamo detainees into the United States. The bill would continue the
absolute bar on the transfer of Guantanamo detainees into the United States for any purpose
(§1036), as well as the prohibition on building or modifying facilities in the United States to
house such detainees (§1037). As amended on the floor,201 both prohibitions would apply to all
federal government agencies, and would extend for two years after the bill’s enactment.
Transfer of Guantanamo detainees to foreign countries. The bill would repeal Section 1035 of
the 2014 NDAA and revert to the previous set of restrictions on detainee transfers to foreign
countries (§1039), as described in more detail above in the section on the 2012 NDAA, “Transfer
or Release of Guantanamo Detainees to Foreign Countries.” In essence, unless the detainee has
been ordered released by a court, his transfer would require a certification of specified favorable
security circumstances, with some criteria subject to a possible national security waiver (and
substitute criteria), and 30 days’ advance notification of Congress. However, under the House
proposal, the Secretary of Defense would have no authority to issue a national security waiver
with respect to any detainee who has ever been “determined or assessed to be a detainee referred
for prosecution, a detainee approved for detention, or a detainee approved for conditional
detention by the Guantanamo Detainee Review Task Force established pursuant to Executive
Order number 13492.”202 These restrictions and certification requirements would continue
through December 31, 2016.
Section 1039 also reinstates the ban on 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 to be transferred pursuant to a court order, and it is subject to the national
security waiver.
The bill would also add some new restrictions. Specifically, the bill would altogether prohibit
detainee transfers to Yemen for two years following its enactment (§1042). It would also prohibit,
until the end of December 2016, the transfer or release of detainees to areas designated as combat
198 H.Amdt. 189 to H.R. 1735 (114th Cong.).
199 H.R. 1735 §§1034 and 1035 (as engrossed by the House). The reporting requirements to be amended originated in
Section 319 of the Supplemental Appropriations Act, 2009, P.L. 111-32, 123 Stat. 1874.
200 Executive Office of the President, Statement of Administration Policy on H.R. 1735 (House Rules), May 12, 2015,
available at https://www.whitehouse.gov/sites/default/files/omb/legislative/sap/114/saphr1735r_20150512.pdf.
201 H.Amdt. 220 to H.R. 1735 (114th Cong.).
202 H.R. 1735 §1039 (as engrossed by the House). “Conditional detention” refers to detainees from Yemen who cannot
be transferred to Yemen due to security concerns, but are eligible for transfer to other countries. See Guantanamo
Review Task Force, supra footnote 52, at ii.
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zones for servicemember tax exemption purposes.203 Under this definition, it appears that no
detainees could be transferred to Yemen, Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, the
United Arab Emirates, Afghanistan, Pakistan, Tajikistan, Jordan, Israel, Somalia, Djibouti,
Kyrgyzstan, Uzbekistan, Turkey, Egypt, Kosovo, or the Philippines,204 irrespective of any court
order or national security waiver.
Required submission of documents related to the Bergdahl-Taliban Five exchange. Section
1040 of the bill would require the Attorney General and the Secretary of Defense to submit to
Congress all correspondence in the possession of their respective departments related to detainee
transfers to Qatar between January 1, 2013, and June 1, 2014, in particular correspondence
containing legal analysis of applicable provisions of law to the transfer. Section 1041 would
require the submission of unredacted copies of documents that were submitted in response to a
request by the House Armed Services Committee, as well as future documents responsive to that
request, regarding the transfer of detainees to Qatar. Submission of these materials would be
required within 30 days of enactment, and a failure to submit them would result in the
withholding of 25% of the funds available under the 2016 NDAA to the Office of the Secretary of
Defense.
S. 1376
The Senate Armed Services Committee reported favorably on its version of the 2016 NDAA, S.
1376, on May 19, 2015 (S.Rept. 114-49). Like H.R. 1735, it continues the ban on transferring
detainees into the United States (but with an exception for emergency medical treatment) or
building or modifying facilities within the United States to incarcerate them. It reinstates the
transfer restrictions and certification requirements that applied prior to the 2014 NDAA for
transferring detainees to foreign countries or entities, including countries that have experienced
confirmed cases of former detainees engaging in terrorist activities, subject to national security
waiver. However, these transfer restrictions would relax somewhat upon congressional approval,
by means of a privileged joint resolution, of a detailed DOD plan to close the Guantanamo
detention facility.
Plan for the closure of the Guantanamo detention facility. Section 1032(g) of the Senate bill
would require the Secretary of Defense to submit a comprehensive plan for the disposition of
Guantanamo detainees, including the following:
• a case-by-case determination made for each detainee describing whether he is
intended to be transferred to a foreign country or transferred to the United States
for the purpose of civilian or military trial or for continued detention;
• specific U.S. facility or facilities to be used to hold individuals to be transferred
to the United States for these purposes;
• estimated costs associated with Guantanamo detainees’ detention inside the
United States;
203 H.R. 1735 §1038 (as engrossed by the House) (defining “combat zone” to be an area designated for purposes of 26
U.S.C. §112 for which the income of an active-duty servicemember was excluded during 2014, 2015, or 2016).
204 Internal Revenue Service website, http://www.irs.gov/uac/Combat-Zones.
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• a description of the legal implications associated with their detention in the
United States, including the right to challenge such detention as unlawful;
• a detailed description and assessment of proposed actions for risk mitigation;
• an explanation of any additional authorities that may be necessary to hold a
detainee inside the United States as an unprivileged enemy belligerent pursuant
to the AUMF; and
• a plan for the detainees subject to continued law of war detention by the United
States, including a plan to detain and interrogate such individuals for intelligence
and security purposes.
The plan would then be subject to congressional approval under rules described in Section
1032(h). Until the plan is approved, Guantanamo detainees who are transferred to the United
States (i.e., for emergency medical treatment, as would be permitted under Section 1034 of the
Senate bill) may not be released within the United States or its territories, and may be transferred
or released (presumably in in a foreign country) only in accordance with the provision that
applies to the release of Guantanamo detainees to foreign countries (§1032(i)).
Transfer of Guantanamo detainees into the United States. The bill would continue the bar on
the transfer of Guantanamo detainees into the United States (§1032), except for detainees to be
transferred temporarily to DOD facilities for emergency or critical medical care (§1034), with
such transfers subject to congressional notification and safeguards to ensure the detainee is not
released or relieved of any aspect of the status of unprivileged belligerent. The bill would also
extend the prohibition on building or modifying facilities in the United States to house
Guantanamo detainees (§1031), although this prohibition would be extended to cover detainees to
be kept under the custody or control of any agency of the U.S. government (previously only
detention by DOD was contemplated).
Once a comprehensive plan for the disposition of Guantanamo detainees has been approved by
congressional joint resolution, however, the ban on building or modifying facilities in the United
States would end, and detainees could be transferred into the United States for trial and
incarceration after the Secretary of Defense makes the appropriate determination, takes steps to
mitigate any risk, and notifies the specified congressional committees (§1032(f)). Any detainee
transferred under this authority would be considered to be paroled into the United States for
immigration purposes, and would not be eligible to apply for admission or asylum or to benefit
from any other legal right or privilege. He would retain the status of unprivileged enemy
belligerent, and would be ineligible to access the courts to pursue any cause of action against the
United States or its officials related to the detention or transfer, except to challenge his status
through a habeas action in the U.S. District Court for the District of Columbia.
Transfer of Guantanamo detainees to foreign countries. The bill would repeal Section 1035 of
the 2014 NDAA and revert to the previous set of restrictions on detainee transfers to foreign
countries (§1033), including the 30-day congressional notification requirement, with some
modifications to the requisite certification that applies to detainees who have not been ordered
released by a court. Specifically, the Secretary of Defense’s certification would require the
concurrence of the Secretary of State and consultation with the Director of National Intelligence
(DNI), and it would require a written memorandum of understanding between the United States
government and the government of the receiving country regarding the transfer. As in prior years,
the certification with respect to some criteria involving actions to be taken by the receiving
country to mitigate the threat posed by the detainee could be waived by the Secretary of Defense
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(but with the concurrence of the Secretary of State and after consultation with the DNI), upon
certification that (1) alternative actions will be taken to mitigate the threat; (2) it is not possible to
certify that the risks have been completely eliminated, but the alternative actions will
substantially mitigate the risks; and (3) the transfer is in the national security interests of the
United States.
Section 1033 also reinstates the ban on transfers from Guantanamo to any foreign country or
entity if there is a confirmed case of a former detainee engaging in terrorist acts there. As had
been the case with the earlier ban, the prohibition does not apply in the case of detainees who are
to be transferred pursuant to a court order, and it is subject to a national security waiver.
The Senate bill would also install a blanket bar on any detainee transfer to Yemen, which would
remain in effect until December 31, 2016 (§1035).
Upon congressional approval of a plan to close Guantanamo, the more relaxed transfer
restrictions of Section 1035 of the 2014 NDAA would be revived, in place of the requirements set
forth in Section 1033 of the Senate bill. The 2014 NDAA’s transfer restrictions would also apply
to the transfer to foreign countries of detainees who had been transferred to the United States.
Reporting requirements. The Senate bill would require the Secretary of Defense to submit,
within 60 days after enactment, a report identifying and assessing Guantanamo detainees who
have ever been determined to be a high-risk or medium-risk threat to the United States, its
interests, or its allies (§1036). Another report, due within 90 days of enactment, would be
required to set forth the memoranda of understanding signed with receiving countries concerning
detainees who had been transferred to them during the 18-month period prior to the Senate bill’s
enactment (§1037). Finally, six months after enactment and every six months thereafter, the
Secretary of Defense, in consultation with the DNI, would be required to report on the use of the
Guantanamo detention facility and any other prison or detention center as a propaganda or
recruitment tool by terrorist organizations (§1038).
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
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