[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 401 Introduced in House (IH)]
114th CONGRESS
1st Session
H. R. 401
To extend and enhance prohibitions and limitations with respect to the
transfer or release of individuals detained at United States Naval
Station, Guantanamo Bay, Cuba, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 16, 2015
Mrs. Walorski (for herself and Mr. Wenstrup) introduced the following
bill; which was referred to the Committee on Armed Services
_______________________________________________________________________
A BILL
To extend and enhance prohibitions and limitations with respect to the
transfer or release of individuals detained at United States Naval
Station, Guantanamo Bay, Cuba, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Detaining Terrorists to Protect
America Act of 2015''.
SEC. 2. PROHIBITION ON USE OF FUNDS TO CONSTRUCT OR MODIFY FACILITIES
IN THE UNITED STATES TO HOUSE DETAINEES TRANSFERRED FROM
UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.
(a) Prohibition.--No amounts appropriated or otherwise available
for any department or agency of the United States Government may be
used, during the period beginning on the date of the enactment of this
Act and ending on the date that is two years after the date of the
enactment of this Act, to construct or modify any facility in the
United States, its territories, or possessions to house an individual
detained at Guantanamo for the purpose of detention or imprisonment in
the custody or control of the United States Government unless
authorized by Congress.
(b) Exception.--The prohibition in subsection (a) shall not apply
to any modification of facilities at United States Naval Station,
Guantanamo Bay, Cuba.
(c) Individual Detained at Guantanamo Defined.--In this section,
the term ``individual detained at Guantanamo'' means any individual
located at United States Naval Station, Guantanamo Bay, Cuba, as of
October 1, 2009, who--
(1) is not a citizen of the United States or a member of
the Armed Forces of the United States; and
(2) is--
(A) in the custody or under the control of the
Department of Defense; or
(B) otherwise under detention at United States
Naval Station, Guantanamo Bay, Cuba.
(d) Repeal of Superseded Prohibition.--Section 1033 of the National
Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66; 127
Stat. 850), as amended by section 1032 of the Carl Levin and Howard P.
``Buck'' McKeon National Defense Authorization Act for Fiscal Year 2015
(Public Law 113-291), is repealed.
SEC. 3. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO THE
UNITED STATES OF INDIVIDUALS DETAINED AT UNITED STATES
NAVAL STATION, GUANTANAMO BAY, CUBA.
(a) Prohibition.--No amounts appropriated or otherwise available
for any department or agency of the United States Government may be
used, during the period beginning on the date of the enactment of this
Act and ending on the date that is two years after the date of the
enactment of this Act, to transfer, release, or assist in the transfer
or release to or within the United States, its territories, or
possessions of Khalid Sheikh Mohammed or any other detainee who--
(1) is not a United States citizen or a member of the Armed
Forces of the United States; and
(2) was held on January 20, 2009, at United States Naval
Station, Guantanamo Bay, Cuba, by the Department of Defense.
(b) Repeal of Superseded Prohibition.--Section 1034 of the National
Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66; 127
Stat. 851), as amended by section 1033 of the Carl Levin and Howard P.
``Buck'' McKeon National Defense Authorization Act for Fiscal Year 2015
(Public Law 113-291), is repealed.
SEC. 4. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE ABROAD OF
INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION,
GUANTANAMO BAY, CUBA, DETERMINED OR ASSESSED TO BE HIGH-
RISK OR MEDIUM-RISK THREATS.
(a) Prohibition.--
(1) In general.--Notwithstanding any other provision of
law, no amounts appropriated or otherwise available for any
department or agency of the United States Government may be
used, during the period beginning on the date of the enactment
of this Act and ending on the date that is two years after the
date of the enactment of this Act, to transfer, release, or
assist in the transfer or release of any individual described
in paragraph (2) to the custody or control of the individual's
country of origin, any other foreign country, or any other
foreign entity.
(2) Covered individuals.--An individual described in this
paragraph is any individual detained in the custody or under
the control of the Department of Defense at United States Naval
Station, Guantanamo Bay, Cuba, who is currently or ever has
been determined or assessed by Joint Task Force Guantanamo to
be a high-risk or medium-risk threat to the United States, its
interests, or its allies.
(b) Exception.--Subsection (a) shall not apply to any action taken
by the head of a department or agency of the United States Government
to transfer, release, or assist in the transfer or release of any
individual described in that subsection to effectuate an order
affecting the disposition of the individual that is issued by a court
or competent tribunal of the United States having lawful jurisdiction
(which the Secretary shall notify the appropriate committees of
Congress promptly after issuance).
(c) Appropriate Committees of Congress Defined.--In this section,
the term ``appropriate committees of Congress'' means--
(1) the Committee on Armed Services, the Committee on
Appropriations, and the Select Committee on Intelligence of the
Senate; and
(2) the Committee on Armed Services, the Committee on
Appropriations, and the Permanent Select Committee on
Intelligence of the House of Representatives.
SEC. 5. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO YEMEN OF
INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION,
GUANTANAMO BAY, CUBA.
Notwithstanding any other provision of law, no amounts appropriated
or otherwise available for any department or agency of the United
States Government may be used, during the period beginning on the date
of the enactment of this Act and ending on the date that is two years
after the date of the enactment of this Act, to transfer, release, or
assist in the transfer or release of any individual detained in the
custody or under the control of the Department of Defense at United
States Naval Station, Guantanamo Bay, Cuba, to the custody or control
of the Republic of Yemen or any entity within Yemen.
SEC. 6. REENACTMENT AND MODIFICATION OF CERTAIN PRIOR REQUIREMENTS FOR
CERTIFICATIONS RELATING TO TRANSFER OF DETAINEES AT
UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO
FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.
(a) Certification Required Prior to Transfer.--
(1) In general.--Except as provided in paragraph (3) and
subsection (d), the Secretary of Defense may not use any
amounts authorized to be appropriated or otherwise available to
the Department of Defense to transfer any individual detained
at Guantanamo to the custody or control of the individual's
country of origin, any other foreign country, or any other
foreign entity unless the Secretary submits to the appropriate
committees of Congress the certification described in
subsection (b) not later than 30 days before the transfer of
the individual.
(2) Scope of requirement.--The requirement in paragraph (1)
applies to any authorized transfer or release of an individual
described in that paragraph after the date of the enactment of
this Act, including a transfer or release of such an individual
who is also described in paragraph (2) of section 4(a) after
the prohibition in section 4(a) ceases to be in effect.
(3) Exception.--Paragraph (1) shall not apply to any action
taken by the Secretary to transfer any individual detained at
Guantanamo to effectuate an order affecting the disposition of
the individual that is issued by a court or competent tribunal
of the United States having lawful jurisdiction (which the
Secretary shall notify the appropriate committees of Congress
of promptly after issuance).
(b) Certification.--A certification described in this subsection is
a written certification made by the Secretary of Defense, with the
concurrence of the Secretary of State and in consultation with the
Director of National Intelligence, that--
(1) the government of the foreign country or the recognized
leadership of the foreign entity to which the individual
detained at Guantanamo is to be transferred--
(A) is not a designated state sponsor of terrorism
or a designated foreign terrorist organization;
(B) maintains control over each detention facility
in which the individual is to be detained if the
individual is to be housed in a detention facility;
(C) is not, as of the date of the certification,
facing a threat that is likely to substantially affect
its ability to exercise control over the individual;
(D) has taken or agreed to take effective actions
to ensure that the individual cannot take action to
threaten the United States, its citizens, or its allies
in the future;
(E) has taken or agreed to take such actions as the
Secretary of Defense determines are necessary to ensure
that the individual cannot engage or reengage in any
terrorist activity; and
(F) has agreed to share with the United States any
information that--
(i) is related to the individual or any
associates of the individual; and
(ii) could affect the security of the
United States, its citizens, or its allies; and
(2) includes an assessment, in classified or unclassified
form, of the capacity, willingness, and past practices (if
applicable) of the foreign country or entity in relation to the
Secretary's certifications.
(c) Prohibition in Cases of Prior Confirmed Recidivism.--
(1) Prohibition.--Except as provided in paragraph (2) and
subsection (d), the Secretary of Defense may not use any
amounts authorized to be appropriated or otherwise made
available to the Department of Defense to transfer any
individual detained at Guantanamo to the custody or control of
the individual's country of origin, any other foreign country,
or any other foreign entity if there is a confirmed case of any
individual who was detained at United States Naval Station,
Guantanamo Bay, Cuba, at any time after September 11, 2001, who
was transferred to such foreign country or entity and
subsequently engaged in any terrorist activity.
(2) Exception.--Subject to subsection (e), paragraph (1)
shall not apply to any action taken by the Secretary to
transfer any individual detained at Guantanamo to effectuate an
order affecting the disposition of the individual that is
issued by a court or competent tribunal of the United States
having lawful jurisdiction (which the Secretary shall notify
the appropriate committees of Congress of promptly after
issuance).
(d) National Security Waiver.--
(1) In general.--Subject to subsection (e), the Secretary
of Defense may waive the applicability to a detainee transfer
of a certification requirement specified in subparagraph (D) or
(E) of subsection (b)(1) or the prohibition in subsection (c),
if the Secretary certifies the rest of the criteria required by
subsection (b) for transfers prohibited by subsection (c) and,
with the concurrence of the Secretary of State and in
consultation with the Director of National Intelligence,
determines that--
(A) alternative actions will be taken to address
the underlying purpose of the requirement or
requirements to be waived;
(B) in the case of a waiver of subparagraph (D) or
(E) of subsection (b)(1), it is not possible to certify
that the risks addressed in the paragraph to be waived
have been completely eliminated, but the actions to be
taken under subparagraph (A) will substantially
mitigate such risks with regard to the individual to be
transferred;
(C) in the case of a waiver of subsection (c), the
Secretary has considered any confirmed case in which an
individual who was transferred to the country
subsequently engaged in terrorist activity, and the
actions to be taken under subparagraph (A) will
substantially mitigate the risk of recidivism with
regard to the individual to be transferred; and
(D) the transfer is in the national security
interests of the United States.
(2) Reports.--Whenever the Secretary makes a determination
under paragraph (1), the Secretary shall submit to the
appropriate committees of Congress, not later than 30 days
before the transfer of the individual concerned, the following:
(A) A copy of the determination and the waiver
concerned.
(B) A statement of the basis for the determination,
including--
(i) an explanation why the transfer is in
the national security interests of the United
States;
(ii) in the case of a waiver of paragraph
(D) or (E) of subsection (b)(1), an explanation
why it is not possible to certify that the
risks addressed in the paragraph to be waived
have been completely eliminated; and
(iii) a classified summary of--
(I) the individual's record of
cooperation while in the custody of or
under the effective control of the
Department of Defense; and
(II) the agreements and mechanisms
in place to provide for continuing
cooperation.
(C) A summary of the alternative actions to be
taken to address the underlying purpose of, and to
mitigate the risks addressed in, the paragraph or
subsection to be waived.
(D) The assessment required by subsection (b)(2).
(e) Coordination With Prohibition on Transfer to Yemen.--While the
prohibition in section 5 is in effect, the exception in subsection
(c)(2) and the waiver authority in subsection (d) shall not apply to
authorize the transfer of an individual detained at Guantanamo to
Yemen.
(f) Record of Cooperation.--In assessing the risk that an
individual detained at Guantanamo will engage in terrorist activity or
other actions that could affect the security of the United States if
released for the purpose of making a certification under subsection (b)
or a waiver under subsection (d), the Secretary of Defense may give
favorable consideration to any such individual--
(1) who has substantially cooperated with United States
intelligence and law enforcement authorities, pursuant to a
pre-trial agreement, while in the custody of or under the
effective control of the Department of Defense; and
(2) for whom agreements and effective mechanisms are in
place, to the extent relevant and necessary, to provide for
continued cooperation with United States intelligence and law
enforcement authorities.
(g) Definitions.--In this section:
(1) The term ``appropriate committees of Congress'' means--
(A) the Committee on Armed Services, the Committee
on Appropriations, and the Select Committee on
Intelligence of the Senate; and
(B) the Committee on Armed Services, the Committee
on Appropriations, and the Permanent Select Committee
on Intelligence of the House of Representatives.
(2) The term ``individual detained at Guantanamo'' means
any individual located at United States Naval Station,
Guantanamo Bay, Cuba, as of October 1, 2009, who--
(A) is not a citizen of the United States or a
member of the Armed Forces of the United States; and
(B) is--
(i) in the custody or under the control of
the Department of Defense; or
(ii) otherwise under detention at United
States Naval Station, Guantanamo Bay, Cuba.
(3) The term ``foreign terrorist organization'' means any
organization so designated by the Secretary of State under
section 219 of the Immigration and Nationality Act (8 U.S.C.
1189).
(h) Repeal of Superseded Requirements and Limitations.--Section
1035 of the National Defense Authorization Act for Fiscal Year 2014
(Public Law 113-66; 127 Stat. 851; 10 U.S.C. 801 note) is repealed.
SEC. 7. REPORT ON CURRENT DETAINEES AT UNITED STATES NAVAL STATION,
GUANTANAMO BAY, CUBA, DETERMINED OR ASSESSED TO BE HIGH-
RISK OR MEDIUM RISK.
(a) Report Required.--Not later than 60 days after the date of the
enactment of this Act, the Secretary of Defense shall submit to the
appropriate committees of Congress a report, in unclassified form,
setting forth a list of the individuals detained at Guantanamo as of
the date of the enactment of this Act who have been determined or
assessed by Joint Task Force Guantanamo, at any time before the date of
the report, to be a high-risk or medium-risk threat to the United
States, its interests, or its allies.
(b) Elements.--The report under subsection (a) shall set forth, for
each individual covered by the report, the following:
(1) The name and country of origin.
(2) The date on which first designated or assessed as a
high-risk or medium-risk threat to the United States, its
interests, or its allies.
(3) Whether, as of the date of the report, currently
designated or assessed as a high-risk or medium-risk threat to
the United States, its interests, or its allies.
(4) If the designation or assessment changed between the
date specified pursuant to paragraph (2) and the date of the
report, the year and month in which the designation or
assessment changed and the designation or assessment to which
changed.
(5) To the extent practicable, without jeopardizing
intelligence sources and methods--
(A) prior actions in support of terrorism, hostile
actions against the United States or its allies, gross
violations of human rights, and other violations of
international law; and
(B) any affiliations with al Qaeda, al Qaeda
affiliates, or other terrorist groups.
(c) Definitions.--In this section:
(1) The term ``appropriate committees of Congress'' means--
(A) the Committee on Armed Services, the Committee
on Appropriations, and the Select Committee on
Intelligence of the Senate; and
(B) the Committee on Armed Services, the Committee
on Appropriations, and the Permanent Select Committee
on Intelligence of the House of Representatives.
(2) The term ``individual detained at Guantanamo'' means
any individual located at United States Naval Station,
Guantanamo Bay, Cuba, as of October 1, 2009, who--
(A) is not a citizen of the United States or a
member of the Armed Forces of the United States; and
(B) is--
(i) in the custody or under the control of
the Department of Defense; or
(ii) otherwise under detention at United
States Naval Station, Guantanamo Bay, Cuba.
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