S.Amdt. 4464

SA 4464. Mr. JOHNSON submitted an amendment intended to be proposed
by him to the bill S. 2943, to authorize appropriations for fiscal year
2017 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; which was ordered to lie on the table; as follows:

Strike section 1027 and insert the following:

SEC. 1027. UNCLASSIFIED NOTICE AND MEMORANDUM OF
UNDERSTANDING BETWEEN THE UNITED STATES AND THE
FOREIGN COUNTRY OR ENTITY CONCERNED BEFORE
TRANSFER OF ANY DETAINEE AT UNITED STATES NAVAL
STATION, GUANTANAMO BAY, CUBA, TO A FOREIGN
COUNTRY OR ENTITY.

(a) Findings.--Congress makes the following findings:
(1) The detention facilities at United States Naval
Station, Guantanamo Bay, Cuba, were established in 2002 for
the purpose of detaining those who plan, authorize, commit,
or aid in the planning, authorizing, or committing of acts of
terrorism against the United States.
(2) The facilities have detained individuals who have
killed, maimed, or otherwise harmed innocent civilians and
members of the United States Armed Forces, as well as
combatants who have received specialized training in the
conduct and facilitation of acts of terrorism against the
United States, its citizens, and its allies. This includes 9/
11 mastermind Khalid Sheik Mohammed and scores of other known
terrorists.
(3) The location of the detention facilities at Guantanamo
Bay protects the United States, its citizens, and its allies.
No prisoner has ever escaped from Guantanamo Bay.
(4) On January 22, 2009, President Barack Obama issued
Executive Order 13492 ordering the closure of the detention
facilities at Guantanamo Bay, consistent with the national
security and foreign policy interests of the United States
and the interests of justice.
(5) Executive Order 13492 directs the Department of State
to participate in the review of each detainee to determine
whether it is possible to transfer or release the individual
consistent with the national security and foreign policy
interests of the United States.
(6) The Secretary of State is ordered to expeditiously
pursue and direct negotiations and diplomatic efforts with
foreign governments as are necessary and appropriate to
implement Executive Order 13492.
(7) Since 2009, the Department of State has played a
substantial role in the review and transfer of enemy
combatants from the jurisdiction of the United States to the
custody or control of foreign governments through the
appointment of a Special Envoy for Guantanamo Closure.
(8) President Obama has released numerous detainees from
Guantanamo Bay since taking office, some of whom are known or
suspected to have reengaged in terrorist activity.
(9) The transfer of individuals from Guantanamo Bay to
foreign countries sharply increased from 2014 to 2016,
bringing the number of detainees remaining at Guantanamo Bay
to less than 100.
(10) The administration often transfers detainees to
countries in close proximity to their countries of origin. In
some cases, prisoners have been relocated within blocks of
United States diplomatic facilities located in countries with
governments that have publicly stated no intention to monitor
or restrict travel of potentially dangerous former detainees
or that otherwise lack the capacity to mitigate threat
potential.
(11) The administration is required to notify Congress of
its intent to transfer individuals detained at Guantanamo
pursuant to section 1034 of the National Defense
Authorization Act for Fiscal Year 2016 (Public Law 114-92)
and certify that among other things, the foreign country to
which the individual is proposed to be transferred has taken
or agreed to take appropriate steps to substantially mitigate
any risk the individual could attempt to reengage in
terrorist activity or otherwise threaten the United States or
its allies or interests.
(12) While not required by law, the administration has
classified these notifications so that only a small number of
individuals are able to know their contents.
(13) The information contained in such a notice does not
warrant classification, given that third-party nations and
the detainees themselves possess such information.
(14) The decision to classify the notice and certification
results in a process that is not transparent, thereby
preventing the American public from knowing pertinent
information about the release of these individuals.
(b) Sense of Congress.--It is the sense of Congress that--
(1) the people of the United States deserve to know who is
being released from the detention facilities at United States
Naval Station, Guantanamo Bay, Cuba, their countries of
origin, their destinations, and the ability of the host
nation to prevent recidivism; and
(2) the people of the United States deserve transparency in
the manner in which the Obama Administration complies with
Executive Order 13492.
(c) Notice Required.--Not less than 30 days prior to the
transfer of 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, the
Secretary of Defense shall, in consultation with the
Secretary of State, submit to the appropriate committees of
Congress an unclassified notice that includes--
(1) the name, country of origin, and country of destination
of the individual;
(2) the number of individuals detained at Guantanamo
previously transferred to the

[[Page S3553]]

country to which the individual is proposed to be
transferred; and
(3) the number of such individuals who are known or
suspected to have reengaged in terrorist activity after being
transferred to that country.
(d) Briefing.--The Secretary of Defense shall brief the
appropriate committees of Congress within 5 days of
transmitting the notice required by subsection (c). Such
briefing shall include an explanation of why the destination
country was chosen for the transferee and an overview of
countries being considered for future transfers.
(e) Memorandum of Understanding.--Section 1034(b) of the
National Defense Authorization Act for Fiscal Year 2016 (129
Stat. 969; 10 U.S.C. 801 note) is amended--
(1) in paragraph (3), by striking ``and'' at the end;
(2) by redesignating paragraph (4) as paragraph (5); and
(3) by inserting after paragraph (3) the following new
paragraph (4):
``(4) both--
``(A) the United States Government, on the one hand, and
the government of the foreign country or the recognized
leadership of the foreign entity, on the other hand, have
entered into a written memorandum of understanding (MOU)
regarding the transfer of the individual; and
``(B) the memorandum of understanding--
``(i) has been transmitted to the appropriate committees of
Congress in unclassified form (unless the Secretary
determines that the memorandum of understanding must be
transmitted to the appropriate committees of Congress in
classified form and, upon making such determination, submits
to Congress a detailed unclassified report explaining why the
memorandum of understanding is being kept classified); and
``(ii) includes an assessment of the capacity, willingness,
and past practices (if applicable) of the foreign country or
foreign entity, as the case may be, with respect to the
matters certified by the Secretary pursuant to paragraphs (2)
and (3) that has been transmitted to the appropriate
committee of Congress in unclassified form (unless the
Secretary determines that the assessment must be transmitted
to the appropriate committees of Congress in classified form
and, upon making such determination, submits to Congress a
detailed unclassified report explaining why the assessment is
being kept classified); and''.
(f) Rule of Construction.--Nothing in this section shall be
construed to be inconsistent with the requirements of section
1034 of the National Defense Authorization Act for Fiscal
Year 2016.
(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 Committee on Foreign Relations of the
Senate; and
(B) the Committee on Armed Services, the Committee on
Appropriations, and the Committee on Foreign Affairs of the
House of Representatives.
(2) The term ``individual detained at Guantanamo'' has the
meaning given such term in section 1034(f)(2) of the National
Defense Authorization Act for Fiscal Year 2016.
______