To propose alternative requirements and limitations applicable to individuals detained at United States Naval Station, Guantanamo Bay, Cuba.

SA 2255. Ms. AYOTTE (for herself, Mr. Chambliss, Mr. Inhofe, Mrs.
Fischer, Mr. Enzi, Mr. Rubio, and Mr. Barrasso) submitted an amendment
intended to be proposed by her to the bill S. 1197, to authorize
appropriations for fiscal year 2014 for military activities of the
Department of Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military personnel
strengths for such fiscal year, and for other purposes; as follows:

Strike section 1031 and insert the following:

SEC. 1031. REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE
TRANSFER OF DETAINEES AT UNITED STATES NAVAL
STATION, GUANTANAMO BAY, CUBA, TO FOREIGN
COUNTRIES AND OTHER FOREIGN ENTITIES.

(a) Certification Required Prior to Transfer.--

[[Page S8243]]

(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 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.
(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).
(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.--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).
(d) National Security Waiver.--
(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--
(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) 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.
(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
(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).
Strike section 1032.
Strike section 1033 and insert the following:

SEC. 1033. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER
OR RELEASE OF INDIVIDUALS DETAINED AT UNITED
STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) Prohibition.--None of the funds authorized to be
appropriated by this Act for fiscal year 2014 may be used to
transfer, release, or assist in the transfer or release to or
within the United States, or the territories or possessions
of the United States, 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) is or was held on or after January 20, 2009, at United
States Naval Station, Guantanamo Bay, Cuba, by the Department
of Defense.
(b) Exception.--The prohibition in subsection (a) shall not
apply to an individual who is transferred to United States
Naval Station, Guantanamo Bay, Cuba, after the date of the
enactment of this Act for the purpose of interrogation by the
United States.
At the end of subtitle D of title X, add the following:

SEC. 1035. 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) In General.--No amounts authorized to be appropriated
or otherwise made available for fiscal year 2014 by this Act
or any other Act may be used to construct or modify any
facility in the United States, its territories, or
possessions to house any individual detained at Guantanamo
for the purposes of detention or imprisonment 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.--
(1) In general.--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--
(A) is not a citizen of the United States or a member of
the Armed Forces of the United States; and

[[Page S8244]]

(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.
(2) Exclusion.--The term does not mean any individual
transferred to United States Naval Station, Guantanamo Bay,
Cuba, after October 1, 2009, who was not located at United
States Naval Station, Guantanamo Bay, Cuba, on that date.

SEC. 1036. PROHIBITION ON TRANSFER OR RELEASE TO YEMEN OF
INDIVIDUALS DETAINED AT UNITED STATES NAVAL
STATION, GUANTANAMO BAY, CUBA.

None of the amounts authorized to be appropriated or
otherwise available to the Department of Defense may be used
to transfer, release, or assist in the transfer or release,
during the period beginning on the date of the enactment of
this Act and ending on December 31, 2014, 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.
______