Press Releases

Jun 02 2014

Fact Sheet on Guantanamo Transfers

What the Law Requires

What the law requires:

Section 1035 of the National Defense Authorization Act for Fiscal Year 2014 requires the following before the transfer or release of a Guantanamo detainee:

• The Secretary of Defense must determine that the risk posed by the detainee will be substantially mitigated and that the transfer is in the national security interests of the United States.

• The Secretary of Defense must notify the appropriate committees of Congress at least 30 days before the transfer or release of a Guantanamo detainee.

• The Secretary of Defense must provide detailed information regarding the circumstances of the transfer or release along with the notification, including how the risk posed by the detainee will be substantially mitigated, the security arrangements in the receiving country, and an assessment of the capacity, willingness, and past practices of the receiving country.

Section 8111 of the Consolidated Appropriations Act for Fiscal Year 2014 also contains the following language:

“None of the funds appropriated or otherwise made available in this Act may be used to transfer any individual detained at United States Naval Station Guantanamo Bay, Cuba to the custody or control of the individual's country of origin, any other foreign country, or any other foreign entity except in accordance with section 1035 of the National Defense Authorization Act for Fiscal Year 2014.”

Full Statutory Language:

SEC. 1035. TRANSFERS TO FOREIGN COUNTRIES OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(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--

(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; or

(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.

(b) Determination Required Prior to Transfer- Except as provided in subsection (a), the Secretary of Defense may transfer an individual detained at Guantanamo to the custody or control of the individual's country origin, or any other foreign country, only if the Secretary determines that--

(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

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

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

(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.

(2) The security situation in the foreign country to which the individual is to be transferred, including whether or not the country is a state sponsor of terrorism, the presence of foreign terrorist groups, and the threat posed by such groups to the United States.

(3) 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 hostile activity that threatened the United States or United States persons or interests.

(4) 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 reengagement of the type described in paragraph (3).

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

(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

(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.

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

(7) 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.

(8) In the case of an individual who 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 a basis for the determination that the individual is an enemy combatant, whether or not the individual has been acquitted of such charges or has been convicted and has completed serving the sentence pursuant to the conviction.

(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:

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

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

(3) A description of any actions taken to mitigate the risks of reengagement by the individual to be transferred or released, including any actions taken to address factors relevant to a prior case of reengagement described in subsection (c)(3).

(4) A copy of any Periodic Review Board findings relating to the individual.

(5) A description of the evaluation conducted pursuant to subsection (c), including a summary of the assessment required by paragraph (6) of such subsection.

(e) Definitions- In this section:

(1) The term `appropriate committees of Congress' means--

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

(B) the Committee on Armed Services, the Committee on Appropriations, the Committee on Foreign Affairs, 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.

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

(1) 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).

(2) 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).