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[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 165 Reported in Senate (RS)]

                                                        Calendar No. 20
114th CONGRESS
  1st Session
                                 S. 165

To extend and enhance prohibitions and limitations with respect to the 
  transfer or release of individuals detained at United States Naval 
         Station, Guantanamo Bay, Cuba, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            January 13, 2015

    Ms. Ayotte (for herself, Mr. Graham, Mr. Burr, Mr. McCain, Mr. 
 Barrasso, Mr. Kirk, Mrs. Fischer, Mr. Moran, Mr. Roberts, Mr. Inhofe, 
Mr. Johnson, Mr. Cruz, Mr. Blunt, Mr. Toomey, Mr. Sessions, Mr. Hatch, 
  Mrs. Ernst, Mr. Tillis, Mr. Isakson, Mr. Wicker, Mr. Lankford, Mr. 
Cornyn, Mr. Cotton, Mr. Lee, Mr. Rounds, Mr. Sullivan, and Mr. Boozman) 
introduced the following bill; which was read twice and referred to the 
                      Committee on Armed Services

                           February 23, 2015

               Reported by Mr. McCain, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL

 
To extend and enhance prohibitions and limitations with respect to the 
  transfer or release of individuals detained at United States Naval 
         Station, Guantanamo Bay, Cuba, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Detaining Terrorists to 
Protect America Act of 2015''.</DELETED>

<DELETED>SEC. 2. 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.</DELETED>

<DELETED>    (a) Prohibition.--No amounts appropriated or otherwise 
available for any department or agency of the United States Government 
may be used, during the period beginning on the date of the enactment 
of this Act and ending on the date that is two years after the date of 
the enactment of this Act, to construct or modify any facility in the 
United States, its territories, or possessions to house an individual 
detained at Guantanamo for the purpose of detention or imprisonment in 
the custody or control of the United States Government unless 
authorized by Congress.</DELETED>
<DELETED>    (b) Exception.--The prohibition in subsection (a) shall 
not apply to any modification of facilities at United States Naval 
Station, Guantanamo Bay, Cuba.</DELETED>
<DELETED>    (c) Individual Detained at Guantanamo Defined.--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--</DELETED>
        <DELETED>    (1) is not a citizen of the United States or a 
        member of the Armed Forces of the United States; and</DELETED>
        <DELETED>    (2) is--</DELETED>
                <DELETED>    (A) in the custody or under the control of 
                the Department of Defense; or</DELETED>
                <DELETED>    (B) otherwise under detention at United 
                States Naval Station, Guantanamo Bay, Cuba.</DELETED>
<DELETED>    (d) Repeal of Superseded Prohibition.--Section 1033 of the 
National Defense Authorization Act for Fiscal Year 2014 (Public Law 
113-66; 127 Stat. 850), as amended by section 1032 of the Carl Levin 
and Howard P. ``Buck'' McKeon National Defense Authorization Act for 
Fiscal Year 2015 (Public Law 113-291), is repealed.</DELETED>

<DELETED>SEC. 3. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO 
              THE UNITED STATES OF INDIVIDUALS DETAINED AT UNITED 
              STATES NAVAL STATION, GUANTANAMO BAY, CUBA.</DELETED>

<DELETED>    (a) Prohibition.--No amounts appropriated or otherwise 
available for any department or agency of the United States Government 
may be used, during the period beginning on the date of the enactment 
of this Act and ending on the date that is two years after the date of 
the enactment of this Act, to transfer, release, or assist in the 
transfer or release to or within the United States, its territories, or 
possessions of Khalid Sheikh Mohammed or any other detainee who--
</DELETED>
        <DELETED>    (1) is not a United States citizen or a member of 
        the Armed Forces of the United States; and</DELETED>
        <DELETED>    (2) was held on January 20, 2009, at United States 
        Naval Station, Guantanamo Bay, Cuba, by the Department of 
        Defense.</DELETED>
<DELETED>    (b) Repeal of Superseded Prohibition.--Section 1034 of the 
National Defense Authorization Act for Fiscal Year 2014 (Public Law 
113-66; 127 Stat. 851), as amended by section 1033 of the Carl Levin 
and Howard P. ``Buck'' McKeon National Defense Authorization Act for 
Fiscal Year 2015 (Public Law 113-291), is repealed.</DELETED>

<DELETED>SEC. 4. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE 
              ABROAD OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL 
              STATION, GUANTANAMO BAY, CUBA, DETERMINED OR ASSESSED TO 
              BE HIGH-RISK OR MEDIUM-RISK THREATS.</DELETED>

<DELETED>    (a) Prohibition.--</DELETED>
        <DELETED>    (1) In general.--Notwithstanding any other 
        provision of law, no amounts appropriated or otherwise 
        available for any department or agency of the United States 
        Government may be used, during the period beginning on the date 
        of the enactment of this Act and ending on the date that is two 
        years after the date of the enactment of this Act, to transfer, 
        release, or assist in the transfer or release of any individual 
        described in paragraph (2) to the custody or control of the 
        individual's country of origin, any other foreign country, or 
        any other foreign entity.</DELETED>
        <DELETED>    (2) Covered individuals.--An individual described 
        in this paragraph is any individual detained in the custody or 
        under the control of the Department of Defense at United States 
        Naval Station, Guantanamo Bay, Cuba, who is currently or ever 
        has been determined or assessed by Joint Task Force Guantanamo 
        to be a high-risk or medium-risk threat to the United States, 
        its interests, or its allies.</DELETED>
<DELETED>    (b) Exception.--Subsection (a) shall not apply to any 
action taken by the head of a department or agency of the United States 
Government to transfer, release, or assist in the transfer or release 
of any individual described in that subsection 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 the appropriate committees of 
Congress promptly after issuance).</DELETED>
<DELETED>    (c) Appropriate Committees of Congress Defined.--In this 
section, the term ``appropriate committees of Congress'' means--
</DELETED>
        <DELETED>    (1) the Committee on Armed Services, the Committee 
        on Appropriations, and the Select Committee on Intelligence of 
        the Senate; and</DELETED>
        <DELETED>    (2) the Committee on Armed Services, the Committee 
        on Appropriations, and the Permanent Select Committee on 
        Intelligence of the House of Representatives.</DELETED>

<DELETED>SEC. 5. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO 
              YEMEN OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL 
              STATION, GUANTANAMO BAY, CUBA.</DELETED>

<DELETED>    Notwithstanding any other provision of law, no amounts 
appropriated or otherwise available for any department or agency of the 
United States Government may be used, during the period beginning on 
the date of the enactment of this Act and ending on the date that is 
two years after the date of the enactment of this Act, to transfer, 
release, or assist in the transfer or release 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.</DELETED>

<DELETED>SEC. 6. REENACTMENT AND MODIFICATION OF CERTAIN PRIOR 
              REQUIREMENTS FOR CERTIFICATIONS RELATING TO TRANSFER OF 
              DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, 
              CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN 
              ENTITIES.</DELETED>

<DELETED>    (a) Certification Required Prior to Transfer.--</DELETED>
        <DELETED>    (1) In general.--Except as provided in paragraph 
        (3) 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 the 
        appropriate committees of Congress the certification described 
        in subsection (b) not later than 30 days before the transfer of 
        the individual.</DELETED>
        <DELETED>    (2) Scope of requirement.--The requirement in 
        paragraph (1) applies to any authorized transfer or release of 
        an individual described in that paragraph after the date of the 
        enactment of this Act, including a transfer or release of such 
        an individual who is also described in paragraph (2) of section 
        4(a) after the prohibition in section 4(a) ceases to be in 
        effect.</DELETED>
        <DELETED>    (3) 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 the appropriate 
        committees of Congress of promptly after issuance).</DELETED>
<DELETED>    (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--</DELETED>
        <DELETED>    (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--
        </DELETED>
                <DELETED>    (A) is not a designated state sponsor of 
                terrorism or a designated foreign terrorist 
                organization;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (F) has agreed to share with the United 
                States any information that--</DELETED>
                        <DELETED>    (i) is related to the individual 
                        or any associates of the individual; 
                        and</DELETED>
                        <DELETED>    (ii) could affect the security of 
                        the United States, its citizens, or its allies; 
                        and</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (c) Prohibition in Cases of Prior Confirmed Recidivism.--
</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (2) Exception.--Subject to subsection (e), 
        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 the appropriate committees of Congress of promptly after 
        issuance).</DELETED>
<DELETED>    (d) National Security Waiver.--</DELETED>
        <DELETED>    (1) In general.--Subject to subsection (e), 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 
        subsection (c) and, with the concurrence of the Secretary of 
        State and in consultation with the Director of National 
        Intelligence, determines that--</DELETED>
                <DELETED>    (A) alternative actions will be taken to 
                address the underlying purpose of the requirement or 
                requirements to be waived;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (D) the transfer is in the national 
                security interests of the United States.</DELETED>
        <DELETED>    (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:</DELETED>
                <DELETED>    (A) A copy of the determination and the 
                waiver concerned.</DELETED>
                <DELETED>    (B) A statement of the basis for the 
                determination, including--</DELETED>
                        <DELETED>    (i) an explanation why the 
                        transfer is in the national security interests 
                        of the United States;</DELETED>
                        <DELETED>    (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</DELETED>
                        <DELETED>    (iii) a classified summary of--
                        </DELETED>
                                <DELETED>    (I) the individual's 
                                record of cooperation while in the 
                                custody of or under the effective 
                                control of the Department of Defense; 
                                and</DELETED>
                                <DELETED>    (II) the agreements and 
                                mechanisms in place to provide for 
                                continuing cooperation.</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (D) The assessment required by subsection 
                (b)(2).</DELETED>
<DELETED>    (e) Coordination With Prohibition on Transfer to Yemen.--
While the prohibition in section 5 is in effect, the exception in 
subsection (c)(2) and the waiver authority in subsection (d) shall not 
apply to authorize the transfer of an individual detained at Guantanamo 
to Yemen.</DELETED>
<DELETED>    (f) 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--</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (g) Definitions.--In this section:</DELETED>
        <DELETED>    (1) The term ``appropriate committees of 
        Congress'' means--</DELETED>
                <DELETED>    (A) the Committee on Armed Services, the 
                Committee on Appropriations, and the Select Committee 
                on Intelligence of the Senate; and</DELETED>
                <DELETED>    (B) the Committee on Armed Services, the 
                Committee on Appropriations, and the Permanent Select 
                Committee on Intelligence of the House of 
                Representatives.</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (A) is not a citizen of the United States 
                or a member of the Armed Forces of the United States; 
                and</DELETED>
                <DELETED>    (B) is--</DELETED>
                        <DELETED>    (i) in the custody or under the 
                        control of the Department of Defense; 
                        or</DELETED>
                        <DELETED>    (ii) otherwise under detention at 
                        United States Naval Station, Guantanamo Bay, 
                        Cuba.</DELETED>
        <DELETED>    (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).</DELETED>
<DELETED>    (h) Repeal of Superseded Requirements and Limitations.--
Section 1035 of the National Defense Authorization Act for Fiscal Year 
2014 (Public Law 113-66; 127 Stat. 851; 10 U.S.C. 801 note) is 
repealed.</DELETED>

<DELETED>SEC. 7. REPORT ON CURRENT DETAINEES AT UNITED STATES NAVAL 
              STATION, GUANTANAMO BAY, CUBA, DETERMINED OR ASSESSED TO 
              BE HIGH-RISK OR MEDIUM RISK.</DELETED>

<DELETED>    (a) Report Required.--Not later than 60 days after the 
date of the enactment of this Act, the Secretary of Defense shall 
submit to the appropriate committees of Congress a report, in 
unclassified form, setting forth a list of the individuals detained at 
Guantanamo as of the date of the enactment of this Act who have been 
determined or assessed by Joint Task Force Guantanamo, at any time 
before the date of the report, to be a high-risk or medium-risk threat 
to the United States, its interests, or its allies.</DELETED>
<DELETED>    (b) Elements.--The report under subsection (a) shall set 
forth, for each individual covered by the report, the 
following:</DELETED>
        <DELETED>    (1) The name and country of origin.</DELETED>
        <DELETED>    (2) The date on which first designated or assessed 
        as a high-risk or medium-risk threat to the United States, its 
        interests, or its allies.</DELETED>
        <DELETED>    (3) Whether, as of the date of the report, 
        currently designated or assessed as a high-risk or medium-risk 
        threat to the United States, its interests, or its 
        allies.</DELETED>
        <DELETED>    (4) If the designation or assessment changed 
        between the date specified pursuant to paragraph (2) and the 
        date of the report, the year and month in which the designation 
        or assessment changed and the designation or assessment to 
        which changed.</DELETED>
        <DELETED>    (5) To the extent practicable, without 
        jeopardizing intelligence sources and methods--</DELETED>
                <DELETED>    (A) prior actions in support of terrorism, 
                hostile actions against the United States or its 
                allies, gross violations of human rights, and other 
                violations of international law; and</DELETED>
                <DELETED>    (B) any affiliations with al Qaeda, al 
                Qaeda affiliates, or other terrorist groups.</DELETED>
<DELETED>    (c) Definitions.--In this section:</DELETED>
        <DELETED>    (1) The term ``appropriate committees of 
        Congress'' means--</DELETED>
                <DELETED>    (A) the Committee on Armed Services, the 
                Committee on Appropriations, and the Select Committee 
                on Intelligence of the Senate; and</DELETED>
                <DELETED>    (B) the Committee on Armed Services, the 
                Committee on Appropriations, and the Permanent Select 
                Committee on Intelligence of the House of 
                Representatives.</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (A) is not a citizen of the United States 
                or a member of the Armed Forces of the United States; 
                and</DELETED>
                <DELETED>    (B) is--</DELETED>
                        <DELETED>    (i) in the custody or under the 
                        control of the Department of Defense; 
                        or</DELETED>
                        <DELETED>    (ii) otherwise under detention at 
                        United States Naval Station, Guantanamo Bay, 
                        Cuba.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Detaining Terrorists to Protect 
America Act of 2015''.

SEC. 2. 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) Prohibition.--No amounts appropriated or otherwise available 
for any department or agency of the United States Government may be 
used, during the period beginning on the date of the enactment of this 
Act and ending on the date that is two years after the date of the 
enactment of this Act, to construct or modify any facility in the 
United States, its territories, or possessions to house an individual 
detained at Guantanamo for the purpose of detention or imprisonment in 
the custody or control of the United States Government 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.--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--
            (1) is not a citizen of the United States or a member of 
        the Armed Forces of the United States; and
            (2) is--
                    (A) in the custody or under the control of the 
                Department of Defense; or
                    (B) otherwise under detention at United States 
                Naval Station, Guantanamo Bay, Cuba.
    (d) Repeal of Superseded Prohibition.--Section 1033 of the National 
Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66; 127 
Stat. 850), as amended by section 1032 of the Carl Levin and Howard P. 
``Buck'' McKeon National Defense Authorization Act for Fiscal Year 2015 
(Public Law 113-291), is repealed.

SEC. 3. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO THE 
              UNITED STATES OF INDIVIDUALS DETAINED AT UNITED STATES 
              NAVAL STATION, GUANTANAMO BAY, CUBA.

    (a) Prohibition.--No amounts appropriated or otherwise available 
for any department or agency of the United States Government may be 
used, during the period beginning on the date of the enactment of this 
Act and ending on the date that is two years after the date of the 
enactment of this Act, to transfer, release, or assist in the transfer 
or release to or within the United States, its territories, or 
possessions 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) was held on January 20, 2009, at United States Naval 
        Station, Guantanamo Bay, Cuba, by the Department of Defense.
    (b) Repeal of Superseded Prohibition.--Section 1034 of the National 
Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66; 127 
Stat. 851), as amended by section 1033 of the Carl Levin and Howard P. 
``Buck'' McKeon National Defense Authorization Act for Fiscal Year 2015 
(Public Law 113-291), is repealed.

SEC. 4. AUTHORITY TO TEMPORARILY TRANSFER INDIVIDUALS DETAINED AT 
              UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO THE 
              UNITED STATES FOR EMERGENCY OR CRITICAL MEDICAL 
              TREATMENT.

    (a) Transfer for Emergency or Critical Medical Treatment 
Authorized.--Notwithstanding any other provision of this Act, or any 
other provision of law enacted after September 30, 2013, but subject to 
subsection (b), the Secretary of Defense may temporarily transfer any 
individual detained at Guantanamo to a Department of Defense medical 
facility in the United States for the sole purpose of providing the 
individual medical treatment if the Secretary determines that--
            (1) the Senior Medical Officer, Joint Task Force-Guantanamo 
        Bay, Cuba, has determined that the medical treatment is 
        necessary to prevent death or imminent significant injury or 
        harm to the health of the individual;
            (2) based on the recommendation of the Senior Medical 
        Officer, Joint Task Force-Guantanamo Bay, Cuba, the medical 
        treatment is not available to be provided at United States 
        Naval Station, Guantanamo Bay, Cuba, without incurring 
        excessive and unreasonable costs; and
            (3) the Department of Defense has provided for appropriate 
        security measures for the custody and control of the individual 
        during any period in which the individual is temporarily in the 
        United States under this subsection.
    (b) Notice to Congress Required Before Transfer.--
            (1) In general.--In addition to the requirements in 
        subsection (a), an individual may not be temporarily 
        transferred under the authority in that subsection unless the 
        Secretary of Defense submits to the appropriate committees of 
        Congress the notice described in paragraph (2)--
                    (A) not later than 30 days before the date of the 
                proposed transfer; or
                    (B) if notice cannot be provided in accordance with 
                subparagraph (A) because of an especially immediate 
                need for the provision of medical treatment to prevent 
                death or imminent significant injury or harm to the 
                health of the individual, as soon as is practicable, 
                but not later than 5 days after the date of transfer.
            (2) Notice elements.--The notice on the transfer of an 
        individual under this subsection shall include the following:
                    (A) A statement of the basis for the determination 
                that the transfer is necessary to prevent death or 
                imminent significant injury or harm to the health of 
                the individual.
                    (B) The specific Department of Defense medical 
                facility that will provide medical treatment to the 
                individual.
                    (C) A description of the actions the Secretary 
                determines have been taken, or will be taken, to 
                address any risk to the public safety that could arise 
                in connection with the provision of medical treatment 
                to the individual in the United States.
    (c) Limitation on Exercise of Authority.--The authority of the 
Secretary of Defense under subsection (a) may be exercised only by the 
Secretary of Defense or by another official of the Department of 
Defense at the level of Under Secretary of Defense or higher.
    (d) Conditions of Transfer.--An individual who is temporarily 
transferred under the authority in subsection (a) shall--
            (1) while in the United States, remain in the custody and 
        control of the Secretary of Defense at all times; and
            (2) be returned to United States Naval Station, Guantanamo 
        Bay, Cuba, as soon as feasible after a Department of Defense 
        physician determines that--
                    (A) the individual is medically cleared to travel; 
                and
                    (B) in consultation with the Commander, Joint Task 
                Force-Guantanamo Bay, Cuba, any necessary follow-up 
                medical care may reasonably be provided the individual 
                at United States Naval Station, Guantanamo Bay, Cuba.
    (e) Status While in United States.--An individual who is 
temporarily transferred under the authority in subsection (a), while in 
the United States--
            (1) shall be deemed at all times and in all respects to be 
        in the uninterrupted custody of the Secretary of Defense, as 
        though the individual remained physically at United States 
        Naval Station, Guantanamo Bay, Cuba;
            (2) shall not at any time be subject to, and may not apply 
        for or obtain, or be deemed to enjoy, any right, privilege, 
        status, benefit, or eligibility for any benefit under any 
        provision of the immigration laws (as defined in section 
        101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 
        1101(a)(17)), or any other law or regulation;
            (3) shall not be permitted to avail himself of any right, 
        privilege, or benefit of any law of the United States beyond 
        those available to individuals detained at United States Naval 
        Station, Guantanamo Bay, Cuba; and
            (4) shall not, as a result of such transfer, have a change 
        in any designation that may have attached to that detainee 
        while detained at United States Naval Station, Guantanamo Bay, 
        Cuba, pursuant to the Authorization for Use of Military Force 
        (Public Law 107-40), as determined in accordance with 
        applicable law and regulations..
    (f) Judicial Review Precluded.--
            (1) No creation of enforceable rights.--Nothing in this 
        section is intended to create any enforceable right or benefit, 
        or any claim or cause of action, by any party against the 
        United States, or any other person or entity.
            (2) Limitation on judicial review.--Except as provided in 
        paragraph (3), no court, justice, or judge shall have 
        jurisdiction to hear or consider any claim or action against 
        the United States or its agents relating to any aspect of the 
        detention, transfer, treatment, or conditions of confinement of 
        an individual transferred under this section.
            (3) Habeas corpus.--
                    (A) Jurisdiction.--The United States District Court 
                for the District of Columbia shall have exclusive 
                jurisdiction to consider an application for writ of 
                habeas corpus challenging the fact or duration of 
                detention and seeking release from custody filed by or 
                on behalf of an individual who is in the United States 
                pursuant to a temporary transfer under subsection (a). 
                Such jurisdiction shall be limited to that required by 
                the Constitution with respect to the fact or duration 
                of detention.
                    (B) Scope of authority.--A court order in a 
                proceeding covered by paragraph (3) may not--
                            (i) review, halt, or stay the return of the 
                        individual who is the object of the application 
                        to United States Naval Station, Guantanamo Bay, 
                        Cuba, including pursuant to subsection (d); or
                            (ii) order the release of the individual 
                        within the United States.
    (g) Notification.--The Secretary of Defense shall notify the 
Committees on Armed Services of the Senate and the House of 
Representatives of any temporary transfer of an individual under the 
authority in subsection (a) not later than 5 days after the transfer of 
the individual under that authority.
    (h) 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.

SEC. 5. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE ABROAD OF 
              INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, 
              GUANTANAMO BAY, CUBA, DETERMINED OR ASSESSED TO BE HIGH-
              RISK OR MEDIUM-RISK THREATS.

    (a) Prohibition.--
            (1) In general.--Notwithstanding any other provision of 
        law, no amounts appropriated or otherwise available for any 
        department or agency of the United States Government may be 
        used, during the period beginning on the date of the enactment 
        of this Act and ending on the date that is two years after the 
        date of the enactment of this Act, to transfer, release, or 
        assist in the transfer or release of any individual described 
        in paragraph (2) to the custody or control of the individual's 
        country of origin, any other foreign country, or any other 
        foreign entity.
            (2) Covered individuals.--An individual described in this 
        paragraph is any individual detained in the custody or under 
        the control of the Department of Defense at United States Naval 
        Station, Guantanamo Bay, Cuba, who is currently or ever has 
        been determined or assessed by Joint Task Force Guantanamo to 
        be a high-risk or medium-risk threat to the United States, its 
        interests, or its allies.
    (b) Exception.--Subsection (a) shall not apply to any action taken 
by the head of a department or agency of the United States Government 
to transfer, release, or assist in the transfer or release of any 
individual described in that subsection 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 the appropriate committees of 
Congress promptly after issuance).
    (c) Appropriate Committees of Congress Defined.--In this section, 
the term ``appropriate committees of Congress'' means--
            (1) the Committee on Armed Services, the Committee on 
        Appropriations, and the Select Committee on Intelligence of the 
        Senate; and
            (2) the Committee on Armed Services, the Committee on 
        Appropriations, and the Permanent Select Committee on 
        Intelligence of the House of Representatives.

SEC. 6. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO YEMEN OF 
              INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, 
              GUANTANAMO BAY, CUBA.

    Notwithstanding any other provision of law, no amounts appropriated 
or otherwise available for any department or agency of the United 
States Government may be used, during the period beginning on the date 
of the enactment of this Act and ending on the date that is two years 
after the date of the enactment of this Act, to transfer, release, or 
assist in the transfer or release 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.

SEC. 7. REENACTMENT AND MODIFICATION OF CERTAIN PRIOR REQUIREMENTS FOR 
              CERTIFICATIONS RELATING TO TRANSFER OF DETAINEES AT 
              UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO 
              FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.

    (a) Certification Required Prior to Transfer.--
            (1) In general.--Except as provided in paragraph (3) 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 the appropriate 
        committees of Congress the certification described in 
        subsection (b) not later than 30 days before the transfer of 
        the individual.
            (2) Scope of requirement.--The requirement in paragraph (1) 
        applies to any authorized transfer or release of an individual 
        described in that paragraph after the date of the enactment of 
        this Act, including a transfer or release of such an individual 
        who is also described in paragraph (2) of section 5(a) after 
        the prohibition in section 5(a) ceases to be in effect.
            (3) 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 the appropriate committees of 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.--Subject to subsection (e), 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 
        the appropriate committees of Congress of promptly after 
        issuance).
    (d) National Security Waiver.--
            (1) In general.--Subject to subsection (e), 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 subsection (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) Coordination With Prohibition on Transfer to Yemen.--While the 
prohibition in section 6 is in effect, the exception in subsection 
(c)(2) and the waiver authority in subsection (d) shall not apply to 
authorize the transfer of an individual detained at Guantanamo to 
Yemen.
    (f) 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.
    (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 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).
    (h) Repeal of Superseded Requirements and Limitations.--Section 
1035 of the National Defense Authorization Act for Fiscal Year 2014 
(Public Law 113-66; 127 Stat. 851; 10 U.S.C. 801 note) is repealed.

SEC. 8. MINIMUM REQUIREMENTS FOR OPERATIONS AT DETENTION FACILITY AT 
              UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

    The Secretary of Defense shall ensure that operations at the 
detention facility at United States Naval Station, Guantanamo Bay, 
Cuba, are conducted in a manner consistent with each of the following:
            (1) The law of armed conflict, including Common Article 3 
        of the Geneva Conventions.
            (2) Sections 1402 and 1403 of the Detainee Treatment Act of 
        2005 (10 U.S.C. 801 note; 42 U.S.C. 2000dd).

SEC. 9. REPORT ON CURRENT DETAINEES AT UNITED STATES NAVAL STATION, 
              GUANTANAMO BAY, CUBA, DETERMINED OR ASSESSED TO BE HIGH-
              RISK OR MEDIUM RISK.

    (a) Report Required.--Not later than 60 days after the date of the 
enactment of this Act, the Secretary of Defense shall submit to the 
appropriate committees of Congress a report, in unclassified form, 
setting forth a list of the individuals detained at Guantanamo as of 
the date of the enactment of this Act who have been determined or 
assessed by Joint Task Force Guantanamo, at any time before the date of 
the report, to be a high-risk or medium-risk threat to the United 
States, its interests, or its allies.
    (b) Elements.--The report under subsection (a) shall set forth, for 
each individual covered by the report, the following:
            (1) The name and country of origin.
            (2) The date on which first designated or assessed as a 
        high-risk or medium-risk threat to the United States, its 
        interests, or its allies.
            (3) Whether, as of the date of the report, currently 
        designated or assessed as a high-risk or medium-risk threat to 
        the United States, its interests, or its allies.
            (4) If the designation or assessment changed between the 
        date specified pursuant to paragraph (2) and the date of the 
        report, the year and month in which the designation or 
        assessment changed and the designation or assessment to which 
        changed.
            (5) To the extent practicable, without jeopardizing 
        intelligence sources and methods--
                    (A) prior actions in support of terrorism, hostile 
                actions against the United States or its allies, gross 
                violations of human rights, and other violations of 
                international law; and
                    (B) any affiliations with al Qaeda, al Qaeda 
                affiliates, or other terrorist groups.
    (c) 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.

SEC. 10. SEMIANNUAL REPORTS ON USE OF UNITED STATES NAVAL STATION, 
              GUANTANAMO BAY, CUBA, AND ANY OTHER DEPARTMENT OF DEFENSE 
              OR BUREAU OF PRISONS PRISON OR OTHER DETENTION OR 
              DISCIPLINARY FACILITY IN RECRUITMENT AND OTHER PROPAGANDA 
              OF TERRORIST ORGANIZATIONS.

    (a) In General.--Not later than six months after the date of the 
enactment of this Act, and every six months thereafter, the Secretary 
of Defense shall, in consultation with the Director of National 
Intelligence, submit to Congress a report on the use by terrorist 
organizations and their leaders of images and symbols relating to 
United States Naval Station, Guantanamo Bay, Cuba, and any other 
Department of Defense or Bureau of Prisons prison or other detention or 
disciplinary facility for recruitment and other propaganda purposes 
during the six-month period ending on the date of such report. Each 
report shall include the following:
            (1) A description and assessment of the effectiveness of 
        the use of such images and symbols for recruitment and other 
        propaganda purposes.
            (2) A description and assessment of the efforts of the 
        United States Government to counter the use of such images and 
        symbols for such purposes and to disseminate accurate 
        information about such facilities.
    (b) Additional Material in First Report.--The first report under 
subsection (a) shall include a description of the use by terrorist 
organizations and their leaders of images and symbols relating to 
United States Naval Station, Guantanamo Bay, Cuba, and any other 
Department of Defense or Bureau of Prisons prison or other detention or 
disciplinary facility for recruitment and other propaganda purposes 
before the date of the enactment of this Act.
                                                        Calendar No. 20

114th CONGRESS

  1st Session

                                 S. 165

_______________________________________________________________________

                                 A BILL

To extend and enhance prohibitions and limitations with respect to the 
  transfer or release of individuals detained at United States Naval 
         Station, Guantanamo Bay, Cuba, and for other purposes.

_______________________________________________________________________

                           February 23, 2015

                       Reported with an amendment
```