Protections Against Terrorist Transfer Act of 2016

Summary: Protections Against Terrorist Transfer Act of 2016 This bill amends the National Defense Authorization Act for Fiscal Year 2016 to prohibit the use of funds made available to the Department of Defense (DOD) or to any other U.S. government entity to transfer, release, or assist in the transfer or release of any individual detained at Naval Station, Guantanamo Bay, Cuba, to the custody or control of any foreign country or other foreign entity unless DOD certifies to Congress that the individual no longer poses a threat to the security of the United States, its citizens, and its interests.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Protections Against Terrorist 
Transfer Act of 2016''.

SEC. 2. STRENGTHENING OF CERTIFICATION REQUIREMENTS RELATING TO THE 
              TRANSFER OR RELEASE OF DETAINEES AT UNITED STATES NAVAL 
              STATION, GUANTANAMO BAY, CUBA.

    (a) Certification Requirement Generally.--Subsection (a) of section 
1034 of the National Defense Authorization Act for Fiscal Year 2016 
(Public Law 114-92; 129 Stat. 969; 10 U.S.C. 801 note) is amended--
            (1) in the subsection heading, by striking ``Prior''; and
            (2) by striking paragraph (1) and inserting the following 
        new paragraph (1):
            ``(1) In general.--Except as provided in paragraph (2), no 
        amount authorized to be appropriated or otherwise made 
        available for the Department of Defense or any other 
        department, agency, or element of the United States Government 
        may be used after the date of the enactment of the Protections 
        Against Terrorist Transfer Act of 2016 to transfer, release, or 
        assist in the transfer or release of any individual detained at 
        Guantanamo to the custody or control of any foreign country or 
        other foreign entity unless the Secretary of Defense certifies 
        to the appropriate committees of Congress that the individual 
        no longer poses a continuing threat to the security of the 
        United States, its citizens, and its interests as described in 
        subsection (b). The certification with respect to an individual 
        shall be submitted not later than 30 days after the date on 
        which the Secretary makes the determination that the individual 
        no longer poses a continuing threat to the security of the 
        United States, its citizens, and its interests.''.
    (b) Certification Elements.--Subsection (b) of such section is 
amended--
            (1) by redesignating paragraphs (1) through (4) as 
        paragraphs (2) through (5), respectively;
            (2) by inserting before paragraph (2), as redesignated by 
        paragraph (1) of this subsection, the following new paragraph 
        (1):
            ``(1) the individual to be transferred or released no 
        longer poses a continuing threat to the security of the United 
        States, its citizens, and its interests;'';
            (3) in paragraph (2), as so redesignated, by inserting ``or 
        release'' after ``transfer'';
            (4) by inserting ``or released'' after ``transferred'' each 
        place it appears; and
            (5) in subparagraph (B) of paragraph (4), as so 
        redesignated, by striking ``paragraph (2)(C)'' and inserting 
        ``paragraph (3)(C)''.
    (c) Basis for Certification.--Such section is further amended--
            (1) by redesignating subsections (c) through (f) as 
        subsections (d) through (g), respectively; and
            (2) by inserting after subsection (b) the following new 
        subsection (c):
    ``(c) Basis for Certification.--
            ``(1) In general.--In making the certification described in 
        subsection (b) with respect to an individual, the Secretary 
        shall take into account and respond to each of the following:
                    ``(A) The extent to which the individual was 
                involved in or facilitated terrorist activities, 
                including the extent to which the individual may have 
                planned or participated in specific terrorist attacks.
                    ``(B) The conduct of the individual when acting as 
                part of, or substantially supporting, Taliban or al 
                Qaeda forces, or the Islamic State of Iraq and the 
                Levant (ISIL) or any other terrorist organization or 
                forces, that are engaged in hostilities against the 
                United States or its coalition partners.
                    ``(C) The level of knowledge, skills, or training 
                possessed by the individual that has been or could be 
                used for terrorist purposes, including the following:
                            ``(i) Training or ability to plan, lead, 
                        finance, organize, or execute acts of 
                        terrorism.
                            ``(ii) Training or ability to facilitate 
                        the movement or training of terrorists.
                            ``(iii) Any specialized training or 
                        operational experience, including training in 
                        paramilitary tactics, explosives, or weapons of 
                        mass casualty.
                    ``(D) The nature and extent of the ties of the 
                individual with individual terrorists, terrorist 
                organizations, terrorist support networks, or other 
                extremists.
                    ``(E) Information pertaining to the likelihood that 
                the individual intends to or is likely to engage in 
                terrorist activities upon transfer or release.
                    ``(F) Information pertaining to the likelihood that 
                the individual will reestablish ties after transfer or 
                release with terrorists, terrorist organizations, 
                terrorist support networks, or other extremists that 
                are engaged in hostilities against the United States or 
                its coalition partners, and information pertaining to 
                whether the group of which the individual was a part of 
                at the time of capture is now defunct.
                    ``(G) Information pertaining to the destination 
                country, including, specifically, the following:
                            ``(i) The presence of terrorist groups, 
                        instability, or other factors in that country 
                        that could negatively influence the potential 
                        of the individual to engage in terrorist 
                        activities upon transfer or release.
                            ``(ii) The accessibility and likelihood the 
                        individual may contact or seek support from 
                        family, tribal, or known associates.
                            ``(iii) The likelihood of rehabilitation or 
                        support for the individual by the receiving 
                        government or entity.
                            ``(iv) The availability and credibility of 
                        measures by the receiving government or entity 
                        to mitigate substantially the assessed threat 
                        posed by the individual, including information 
                        regarding past detainee transfers to that 
                        country or entity, if applicable.
                    ``(H) The likelihood the individual will be subject 
                to trial by military commission, or any other law 
                enforcement interest in the individual.
                    ``(I) The conduct of the individual in the custody 
                of the Department of Defense, including contact with 
                any individual who is not a detainee, behavior, habits, 
                traits, rehabilitation efforts, and whether the 
                individual was considered a danger to other detainees 
                or other individuals.
                    ``(J) The physical and psychological condition of 
                the individual, as assessed by a licensed professional.
                    ``(K) Any other relevant factors bearing on the 
                continuing threat to the security of the United States, 
                its citizens, and its interests posed by the transfer 
                or release of the individual.
                    ``(L) Any other relevant information bearing on the 
                national security and foreign policy interests of the 
                United States or the interests of justice.
            ``(2) Recommendations.--In determining whether to make a 
        certification described in subsection (b) on an individual, the 
        Secretary shall take into account, and include with the 
        certification, the recommendations and military value analyses 
        of the following:
                    ``(A) The Chairman of the Joint Chiefs of Staff.
                    ``(B) The Chiefs of Staff of the Armed Forces, with 
                respect to the effects of the transfer or release on 
                military personnel with a residence for their permanent 
                duty station in the geographic area, or forward 
                deployed forces, in the foreign country concerned.
                    ``(C) The commander of the geographic combatant 
                command having the foreign country or entity to which 
                the individual will be transferred or released within 
                its area of operational responsibility.
                    ``(D) The Commander of the United States Southern 
                Command.
            ``(3) Provision to individuals.--Each individual covered by 
        a certification described in subsection (b) shall be provided 
        an unclassified written summary of the certification, in a 
        language the individual understands, not earlier than 30 days 
        after the Secretary submits the certification to the 
        appropriate committees of Congress pursuant to subsection (a). 
        The summary shall also be provided to the personal 
        representative and private counsel of the individual.''.
    (d) Continuing Threat Defined.--Subsection (g) of such section, as 
redesignated by subsection (c)(1) of this section, is amended by adding 
at the end the following new paragraph:
            ``(5) The term `continuing threat', means a threat to the 
        security of the United States that may require any type of 
        security measure by the United States or any other foreign 
        country or other foreign entity associated with the transfer or 
        release of a detainee.''.
    (e) Additional Conforming Amendments.--Paragraph (3) of subsection 
(f) of such section, as so redesignated, is amended--
            (1) by striking ``subsection (b)(2)(C)'' and inserting 
        ``subsection (b)(3)(C)''; and
            (2) by striking ``subsection (b)(3)'' and inserting 
        ``subsection (b)(4)''.
    (f) Clerical Amendment.--The heading of such section is amended to 
read as follows:

``SEC. 1034. CERTIFICATION REQUIREMENTS RELATING TO THE TRANSFER OR 
              RELEASE OF DETAINEES AT UNITED STATES NAVAL STATION, 
              GUANTANAMO BAY, CUBA.''.