Detainee Transfer Restrictions in Defense Bill Warrant Its Veto, TCP Says

On May 15, the U.S. House of Representatives voted to pass the National Defense Authorization Act for Fiscal Year 2016 (H.R. 1735), comprehensive legislation to authorize spending for the Department of Defense and the national security programs of the Department of Energy for the next fiscal year, by a vote of 269 to 151. The legislation included several new restrictions on transferring detainees from Guantanamo Bay. The 151 votes against the bill would be enough to sustain a threatened presidential veto.

“Time is running out to close Guantanamo and Congress isn’t helping,” said TCP President Virginia Sloan in a press release. “Current law already contains burdensome and unnecessary restrictions on transferring detainees. The House-passed NDAA would expand those restrictions significantly. Unless the Senate drastically improves the bill, President Obama must carry through on his threat to veto it’” she said.

Under current law, Guantanamo detainees cannot be transferred to the United States for any purpose. The Defense Secretary can only transfer detainees abroad after determining that each transfer is in the national security interest of the United States, and that actions will be taken to substantially mitigate the risk of the detainee engaging in terrorism after release. He must also explain those decisions to Congress 30 days prior to transfer.

The House-passed version of the bill extends the ban U.S. transfers for an additional two years, making it impossible to prosecute a Guantanamo detainee in a federal court, even if that is the only court in which he could be prosecuted. It prohibits the transfer of a detainee to any country that the IRS defines as a “combat zone,” precluding a number of countries that have accepted Guantanamo detainees in the past from taking any more. And it restores a byzantine certification process that the Congress streamlined in the last two years. In a letter sent the previous day, Sloan and Scott Roehm, TCP senior policy counsel, cautioned House members about the difficulties adoption of the additional restrictions would cause.

Prior to the House vote, the White House repeatedly warned that the administration strongly objected to numerous provisions in H.R. 1735 – including the Guantanamo transfer restrictions – and that the president’s senior advisors would recommend he veto the bill if those objections were not addressed.

There are 122 detainees remaining at Guantanamo Bay, 57 of whom have been cleared for transfer by unanimous consent of all relevant national security agencies. The Obama administration transferred 27 detainees between November of last year and January of this one, but none since. Sloan said there is no excuse for the four-month lull in transfers.

The Constitution Project Task Force on Detainee Treatment called for the closure of the facility in its comprehensive 2013 report on the treatment of suspected terrorists during the Clinton, Bush and Obama administrations.

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