S.Amdt. 1082

1. Strikes section 1033

   Strikes

   In S. 1867 · Placed on Calendar Senate

   Struck: SEC. 1033. REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.

   Struck: (a) Certification Required Prior to Transfer.--

   Struck: (1) In general.--Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense for fiscal year 2012 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 Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual.

   Struck: (2) Exception.--Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate--

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   Struck: (A) 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 Congress of promptly after issuance); or

   Struck: (B) a pre-trial agreement entered in a military commission case prior to the date of the enactment of this Act.

   Struck: (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 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--

   Struck: (1) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;

   Struck: (2) 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;

   Struck: (3) 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;

   Struck: (4) 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;

   Struck: (5) 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

   Struck: (6) has agreed to share with the United States any information that--

   Struck: (A) is related to the individual or any associates of the individual; and

   Struck: (B) could affect the security of the United States, its citizens, or its allies.

   Struck: (c) Prohibition in Cases of Prior Confirmed Recidivism.--

   Struck: (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.

   Struck: (2) Exception.--Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate--

   Struck: (A) 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 Congress of promptly after issuance); or

   Struck: (B) a pre-trial agreement entered in a military commission case prior to the date of the enactment of this Act.

   Struck: (d) National Security Waiver.--

   Struck: (1) In general.--The Secretary of Defense may waive the applicability to a detainee transfer of a certification requirement specified in paragraph (4) or (5) of subsection (b) or the prohibition in subsection (c) if the Secretary, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, determines that--

   Struck: (A) alternative actions will be taken to address the underlying purpose of the requirement or requirements to be waived;

   Struck: (B) in the case of a waiver of paragraph (4) or (5) of subsection (b), 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;

   Struck: (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

   Struck: (D) the transfer is in the national security interests of the United States.

   Struck: (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:

   Struck: (A) A copy of the determination and the waiver concerned.

   Struck: (B) A statement of the basis for the determination, including--

   Struck: (i) an explanation why the transfer is in the national security interests of the United States; and

   Struck: (ii) in the case of a waiver of paragraph (4) or (5) of subsection (b), an explanation why it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated.

   Struck: (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.

   Struck: (e) Definitions.--In this section:

   Struck: (1) The term "appropriate committees of Congress" means--

   Struck: (A) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and

   Struck: (B) the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.

   Struck: (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--

   Struck: (A) is not a citizen of the United States or a member of the Armed Forces of the United States; and

   Struck: (B) is--

   Struck: (i) in the custody or under the control of the Department of Defense; or

   Struck: (ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.

   Struck: (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).

   Struck: (f) Repeal of Superseded Authority.--Section 1033 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383; 124 Stat. 4351) is repealed.

   Original wording

   Strike section 1033.

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As printed