Detainee Provisions in the National Defense Authorization Bills // "R41920.pdf (application/pdf Object)"
Jennifer K. Elsea
Legislative Attorney
Michael John Garcia
Legislative Attorney
November 18, 2011
CRS Report for Congress
Prepared for Members and Committees of Congress
Congressional Research Service
7-5700
www.crs.gov
R41920
Detainee Provisions in the National Defense Authorization Bills
Summary
Both House and Senate bills competing to become the National Defense Authorization Act for
FY2012 contain a subtitle addressing issues related to detainees at the U.S. Naval Station at
Guantanamo Bay, Cuba, and more broadly, hostilities against Al Qaeda and other entities. At the
heart of both bills’ detainee provisions appears to be an effort to confirm or, as some observers
view it, expand the detention authority that Congress implicitly granted the President via the
Authorization for Use of Military Force (AUMF, P.L. 107-40) in the aftermath of the terrorist
attacks of September 11, 2001.
H.R. 1540, as passed by the House of Representatives on May 26, 2011, contains provisions that
would reaffirm the conflict and define its scope; impose specific restrictions on the transfer of any
non-citizen wartime detainee into the United States; place stringent conditions on the transfer or
release of any Guantanamo detainee to a foreign country; and require that any foreign national
who has engaged in an offense related to a terrorist attack be tried by military commission if
jurisdiction exists.
Shortly before H.R. 1540 was approved by the House, the White House issued a statement
regarding its provisions. While supportive of most aspects of the bill, it was highly critical of
those provisions concerning detainee matters. The Administration voiced strong opposition to the
House provision reaffirming the existence of the armed conflict with Al Qaeda and arguably
redefining its scope. It threatened to veto any version of the bill that contains provisions that the
Administration views as challenging critical executive branch authority, including restrictions on
detainee transfers and measures affecting review procedures.
In June, the Senate Armed Services Committee reported its initial version of the bill, S. 1253. The
bill included many provisions similar to the House bill, but also included a provision requiring the
military detention of certain terrorist suspects. After the White House and the chairs of other
Senate committees objected to some of the provisions, Senate Majority Leader Reid delayed
consideration of S. 1253 pending a resolution of the disputed language. The Senate Armed
Services Committee reported a second version of the authorization bill on November 15, 2011,
addressing some, but not all of the concerns. The new bill, S. 1867, would authorize the detention
of certain categories of persons and require the military detention of a subset of them; regulate
status determinations for persons held pursuant to the AUMF, regardless of location; regulate
periodic review proceedings concerning the continued detention of Guantanamo detainees; and
continue current funding restrictions that relate to Guantanamo detainee transfers to foreign
countries. Unlike the House bill, the Senate bill would not bar the transfer of detainees into the
United States for trial or perhaps for other purposes.
Congressional Research Service
Despite the revisions to the detainee provisions, the Administration threatened to veto “any bill
that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate
dangerous terrorists, and protect the Nation.”
This report offers a brief background of the salient issues raised by H.R. 1540 and S. 1867
regarding detention matters, provides a section-by-section analysis of the relevant subdivision of
each bill, and compares the bills’ approaches with respect to the major issues they address.
Contents
Introduction…………………………………………………………………………………………………………………….. 1
Background…………………………………………………………………………………………………………………….. 1
Scope of Detention Authority Conferred by the AUMF…………………………………………………… 5
Status Determinations for Unprivileged Enemy Belligerents……………………………………………. 8
“Recidivism” and Restrictions on Transfer ………………………………………………………………….. 10
H.R. 1540: Summary and Analysis of Detainee Provisions …………………………………………………. 12
Definitions ………………………………………………………………………………………………………………. 12
Military Commissions Act Revision……………………………………………………………………………. 13
Affirmation of Armed Conflict; Detention Authority…………………………………………………….. 13
Periodic Review of Detention of Persons at Guantanamo………………………………………………. 15
Transfer or Release of Wartime Detainees into the United States ……………………………………. 17
Transfer or Release of Guantanamo Detainees to Foreign Countries……………………………….. 19
Other Guantanamo-Related Provisions ……………………………………………………………………….. 21
Terrorism Trials ……………………………………………………………………………………………………….. 22
General Counterterrorism Matters………………………………………………………………………………. 24
S. 1867: Summary and Analysis of Detainee Provisions……………………………………………………… 25
Detention Authority ………………………………………………………………………………………………….. 25Detention Authority ………………………………………………………………………………………………….. 25
Mandatory Military Detention……………………………………………………………………………………. 27
Transfer or Release of Guantanamo Detainees to Foreign Countries……………………………….. 31
Transfer of Guantanamo Detainees Into the United States……………………………………………… 32
Review of Detention of Persons at Guantanamo …………………………………………………………… 33
Status Determination of Wartime Detainees…………………………………………………………………. 33
Military Commissions Act Revision……………………………………………………………………………. 35
Contacts
Author Contact Information…………………………………………………………………………………………….. 35
