S.Amdt. 2044

1. Rewrites section 1031

   Replaces

   In S. 1197 · Placed on Calendar Senate

   SEC. 1031. [struck: TRANSFERS ][inserted: REQUIREMENTS FOR CERTIFICATIONS RELATING ]TO [struck: FOREIGN COUNTRIES][inserted: THE TRANSFER] OF [struck: INDIVIDUALS DETAINED ][inserted: DETAINEES ]AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA[inserted: , TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES].

   Struck: (a) Authority To Transfer Under Certain Circumstances.--The Secretary of Defense is authorized to transfer or release any individual detained at Guantanamo to the individual's country of origin, or any other foreign country, if--

   Struck: (1) the Secretary determines, following a review conducted in accordance with the requirements of section 1023 of the National Defense Authorization Act for Fiscal Year 2012 (10 U.S.C. 801 note) and Executive Order No. 13567, that the individual is no longer a threat to the national security of the United States;

   Struck: (2) such transfer or release outside the United States is to effectuate an order affecting disposition of the individual by a court or competent tribunal of the United States having jurisdiction; or

   Struck: (3) such individual has been tried in a court or competent tribunal of the United States having jurisdiction on charges based on the same conduct that serves as the basis for the determination that the individual is an enemy combatant and--

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   Struck: (A) has been acquitted of such charges; or

   Struck: (B) has been convicted and has completed serving the sentence pursuant to the conviction.

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

   ([struck: b][inserted: 1]) [struck: Determination Required Prior to Transfer][inserted: In general].--Except as provided in [inserted: paragraph (2) and ]subsection ([struck: a][inserted: d]), the Secretary of Defense may [inserted: not use any amounts authorized to be appropriated or otherwise available to the Department of Defense to ]transfer [struck: an][inserted: any] individual detained at Guantanamo to the custody or control of the individual's country [inserted: of ]origin, [struck: or ]any other foreign country, [struck: only if ][inserted: or any other foreign entity unless ]the Secretary [struck: determines that--][inserted: submits to Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual.]

   Struck: (1) actions that have been or are planned to be taken will substantially mitigate the risk of such individual engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States persons or interests; and

   Struck: (2) the transfer is in the national security interest of the United States.

   Struck: (c) Factors To Be Considered in Making Determination.--In making the determination specified in subsection (b), the Secretary of Defense shall take into consideration the following factors:

   Struck: (1) The recommendations of the Guantanamo Detainee Review Task Force established pursuant to Executive Order No. 13492 and the recommendations of the Periodic Review Boards established pursuant to No. Executive Order 13567, as applicable.

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   Struck: (2) Any confirmed case in which an individual transferred to the foreign country to which the individual is to be transferred subsequently engaged in terrorist or other other hostile activity that threatened the United States or United States persons or interests.

   Struck: (3) Any actions taken by the United States or the foreign country to which the individual is to be transferred, or change in circumstances in such country, that reduce the risk of recidivism of the type described in paragraph (2).

   Struck: (4) Any assurances provided by the government of the foreign country to which the individual is to be transferred, including that--

   Struck: (A) such government maintains control over any facility at which the individual is to be detained if the individual is to be housed in a government- controlled facility; and

   Struck: (B) such government has taken or agreed to take actions to substantially mitigate the risk of the individual engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States persons or interests.

   Struck: (5) An assessment of the capacity, willingness, and past practices (if applicable) of the foreign country described in paragraph (4) in meeting any assurances it has provided, including assurances under paragraph (4) regarding its capacity and willingness to mitigate the risk of recidivism.

   Struck: (6) Any record of cooperation by the individual to be transferred 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 any agreements and effective mechanisms that may be in place, to the extent relevant and necessary, to provide continued cooperation with United States intelligence and law enforcement authorities.

   Struck: (d) Notification.--The Secretary of Defense shall notify the appropriate committees of Congress of a determination of the Secretary under subsection (a) or (b) not later than 30 days before the transfer or release of the individual under such subsection. Each notification shall include, at a minimum, the following:

   Struck: (1) A detailed statement of the basis for the transfer or release.

   Struck: (2) An explanation of why the transfer or release is in the national security interests of the United States.

   Struck: (3) A description of any actions to be taken to mitigate the risks of recidivism by the individual to be transferred or released.

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

   Inserted: (2) 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 Congress of promptly after issuance).

   Inserted: (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--

   Inserted: (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--

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

   Inserted: (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;

   Inserted: (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;

   Inserted: (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;

   Inserted: (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

   Inserted: (F) has agreed to share with the United States any information that--

   Inserted: (i) is related to the individual or any associates of the individual; and

   Inserted: (ii) could affect the security of the United States, its citizens, or its allies; and

   Inserted: (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.

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

   Inserted: (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.

   Inserted: (2) 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 Congress of promptly after issuance).

   Inserted: (d) National Security Waiver.--

   Inserted: (1) In general.--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 (c) and, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, determines that--

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

   Inserted: (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;

   Inserted: (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

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

   Inserted: (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:

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

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

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

   Inserted: (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

   Inserted: (iii) a classified summary of--

   Inserted: (I) the individual's record of cooperation while in the custody of or under the effective control of the Department of Defense; and

   Inserted: (II) the agreements and mechanisms in place to provide for continuing cooperation.

   Inserted: (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.

   Inserted: (D) The assessment required by subsection (b)(2).

   Inserted: (e) 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--

   Inserted: (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

   Inserted: (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.

   Inserted: (f) 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

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   (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.

   Struck: (f) Repeal of Superseded Authorities.--The following provisions of law are repealed:

   Struck: (1) Section 1033 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383; 124 Stat. 4351).

   Struck: (2) Section 1028 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81; 125 Stat. 1567; 10 U.S.C. 801 note).

   Struck: (3) Section 1028 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239; 126 Stat. 1914; 10 U.S.C. 801 note).

   Inserted: (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).

   Original wording

   Strike section 1031 and insert the following:

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As printed