II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Detaining Terrorists 

3 to Protect America Act of 2015’’. 

4 SEC. 2. PROHIBITION ON USE OF FUNDS TO CONSTRUCT 

5 OR MODIFY FACILITIES IN THE UNITED 

6 STATES TO HOUSE DETAINEES TRANS7 FERRED FROM UNITED STATES NAVAL STA8 TION, GUANTANAMO BAY, CUBA. 

9 (a) PROHIBITION.—No amounts appropriated or oth10 erwise available for any department or agency of the 

11 United States Government may be used, during the period 

12 beginning on the date of the enactment of this Act and 

13 ending on the date that is two years after the date of the 

14 enactment of this Act, to construct or modify any facility 

15 in the United States, its territories, or possessions to 

16 house an individual detained at Guantanamo for the pur17 pose of detention or imprisonment in the custody or con18 trol of the United States Government unless authorized 

19 by Congress. 

20 (b) EXCEPTION.—The prohibition in subsection (a) 

21 shall not apply to any modification of facilities at United 

22 States Naval Station, Guantanamo Bay, Cuba. 

23 (c) INDIVIDUAL DETAINED AT GUANTANAMO DE24 FINED.—In this section, the term ‘‘individual detained at 

25 Guantanamo’’ means any individual located at United 


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1 States Naval Station, Guantanamo Bay, Cuba, as of Octo2 ber 1, 2009, who— 

3 (1) is not a citizen of the United States or a 

4 member of the Armed Forces of the United States; 

5 and 

6 (2) is— 

7 (A) in the custody or under the control of 

8 the Department of Defense; or 

9 (B) otherwise under detention at United 

10 States Naval Station, Guantanamo Bay, Cuba. 

11 (d) REPEAL OF SUPERSEDED PROHIBITION.—Sec12 tion 1033 of the National Defense Authorization Act for 

13 Fiscal Year 2014 (Public Law 113–66; 127 Stat. 850), 

14 as amended by section 1032 of the Carl Levin and Howard 

15 P. ‘‘Buck’’ McKeon National Defense Authorization Act 

16 for Fiscal Year 2015 (Public Law 113–291), is repealed. 

17 SEC. 3. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR 

18 RELEASE TO THE UNITED STATES OF INDI19 VIDUALS DETAINED AT UNITED STATES 

20 NAVAL STATION, GUANTANAMO BAY, CUBA. 

21 (a) PROHIBITION.—No amounts appropriated or oth22 erwise available for any department or agency of the 

23 United States Government may be used, during the period 

24 beginning on the date of the enactment of this Act and 

25 ending on the date that is two years after the date of the 


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1 enactment of this Act, to transfer, release, or assist in the 

2 transfer or release to or within the United States, its terri3 tories, or possessions of Khalid Sheikh Mohammed or any 

4 other detainee who— 

5 (1) is not a United States citizen or a member 

6 of the Armed Forces of the United States; and 

7 (2) was held on January 20, 2009, at United 

8 States Naval Station, Guantanamo Bay, Cuba, by 

9 the Department of Defense. 

10 (b) REPEAL OF SUPERSEDED PROHIBITION.—Sec11 tion 1034 of the National Defense Authorization Act for 

12 Fiscal Year 2014 (Public Law 113–66; 127 Stat. 851), 

13 as amended by section 1033 of the Carl Levin and Howard 

14 P. ‘‘Buck’’ McKeon National Defense Authorization Act 

15 for Fiscal Year 2015 (Public Law 113–291), is repealed. 

16 SEC. 4. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR 

17 RELEASE ABROAD OF INDIVIDUALS DE18 TAINED AT UNITED STATES NAVAL STATION, 

19 GUANTANAMO BAY, CUBA, DETERMINED OR 

20 ASSESSED TO BE HIGH-RISK OR MEDIUM21 RISK THREATS. 

22 (a) PROHIBITION.— 

23 (1) IN GENERAL.—Notwithstanding any other 

24 provision of law, no amounts appropriated or other25 wise available for any department or agency of the 


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1 United States Government may be used, during the 

2 period beginning on the date of the enactment of 

3 this Act and ending on the date that is two years 

4 after the date of the enactment of this Act, to trans5 fer, release, or assist in the transfer or release of 

6 any individual described in paragraph (2) to the cus7 tody or control of the individual’s country of origin, 

8 any other foreign country, or any other foreign enti9 ty. 

10 (2) COVERED INDIVIDUALS.—An individual de11 scribed in this paragraph is any individual detained 

12 in the custody or under the control of the Depart13 ment of Defense at United States Naval Station, 

14 Guantanamo Bay, Cuba, who is currently or ever 

15 has been determined or assessed by Joint Task 

16 Force Guantanamo to be a high-risk or medium-risk 

17 threat to the United States, its interests, or its al18 lies. 

19 (b) EXCEPTION.—Subsection (a) shall not apply to 

20 any action taken by the head of a department or agency 

21 of the United States Government to transfer, release, or 

22 assist in the transfer or release of any individual described 

23 in that subsection to effectuate an order affecting the dis24 position of the individual that is issued by a court or com25 petent tribunal of the United States having lawful jurisdicVerDate Sep 11 2014 22:08 Feb 23, 2015 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S165.RS S165

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1 tion (which the Secretary shall notify the appropriate com2 mittees of Congress promptly after issuance). 

3 (c) APPROPRIATE COMMITTEES OF CONGRESS DE4 FINED.—In this section, the term ‘‘appropriate commit5 tees of Congress’’ means— 

6 (1) the Committee on Armed Services, the 

7 Committee on Appropriations, and the Select Com8 mittee on Intelligence of the Senate; and 

9 (2) the Committee on Armed Services, the 

10 Committee on Appropriations, and the Permanent 

11 Select Committee on Intelligence of the House of 

12 Representatives. 

13 SEC. 5. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR 

14 RELEASE TO YEMEN OF INDIVIDUALS DE15 TAINED AT UNITED STATES NAVAL STATION, 

16 GUANTANAMO BAY, CUBA. 

17 Notwithstanding any other provision of law, no 

18 amounts appropriated or otherwise available for any de19 partment or agency of the United States Government may 

20 be used, during the period beginning on the date of the 

21 enactment of this Act and ending on the date that is two 

22 years after the date of the enactment of this Act, to trans23 fer, release, or assist in the transfer or release of any indi24 vidual detained in the custody or under the control of the 

25 Department of Defense at United States Naval Station, 


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1 Guantanamo Bay, Cuba, to the custody or control of the 

2 Republic of Yemen or any entity within Yemen. 

3 SEC. 6. REENACTMENT AND MODIFICATION OF CERTAIN 

4 PRIOR REQUIREMENTS FOR CERTIFICATIONS 

5 RELATING TO TRANSFER OF DETAINEES AT 

6 UNITED STATES NAVAL STATION, GUANTA7 NAMO BAY, CUBA, TO FOREIGN COUNTRIES 

8 AND OTHER FOREIGN ENTITIES. 

9 (a) CERTIFICATION REQUIRED PRIOR TO TRANS10 FER.— 

11 (1) IN GENERAL.—Except as provided in para12 graph (3) and subsection (d), the Secretary of De13 fense may not use any amounts authorized to be ap14 propriated or otherwise available to the Department 

15 of Defense to transfer any individual detained at 

16 Guantanamo to the custody or control of the individ17 ual’s country of origin, any other foreign country, or 

18 any other foreign entity unless the Secretary sub19 mits to the appropriate committees of Congress the 

20 certification described in subsection (b) not later 

21 than 30 days before the transfer of the individual. 

22 (2) SCOPE OF REQUIREMENT.—The require23 ment in paragraph (1) applies to any authorized 

24 transfer or release of an individual described in that 

25 paragraph after the date of the enactment of this 


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1 Act, including a transfer or release of such an indi2 vidual who is also described in paragraph (2) of sec3 tion 4(a) after the prohibition in section 4(a) ceases 

4 to be in effect. 

5 (3) EXCEPTION.—Paragraph (1) shall not 

6 apply to any action taken by the Secretary to trans7 fer any individual detained at Guantanamo to effec8 tuate an order affecting the disposition of the indi9 vidual that is issued by a court or competent tri10 bunal of the United States having lawful jurisdiction 

11 (which the Secretary shall notify the appropriate 

12 committees of Congress of promptly after issuance). 

13 (b) CERTIFICATION.—A certification described in this 

14 subsection is a written certification made by the Secretary 

15 of Defense, with the concurrence of the Secretary of State 

16 and in consultation with the Director of National Intel17 ligence, that— 

18 (1) the government of the foreign country or 

19 the recognized leadership of the foreign entity to 

20 which the individual detained at Guantanamo is to 

21 be transferred— 

22 (A) is not a designated state sponsor of 

23 terrorism or a designated foreign terrorist orga24 nization; 


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1 (B) maintains control over each detention 

2 facility in which the individual is to be detained 

3 if the individual is to be housed in a detention 

4 facility; 

5 (C) is not, as of the date of the certifi6 cation, facing a threat that is likely to substan7 tially affect its ability to exercise control over 

8 the individual; 

9 (D) has taken or agreed to take effective 

10 actions to ensure that the individual cannot 

11 take action to threaten the United States, its 

12 citizens, or its allies in the future; 

13 (E) has taken or agreed to take such ac14 tions as the Secretary of Defense determines 

15 are necessary to ensure that the individual can16 not engage or reengage in any terrorist activity; 

17 and 

18 (F) has agreed to share with the United 

19 States any information that— 

20 (i) is related to the individual or any 

21 associates of the individual; and 

22 (ii) could affect the security of the 

23 United States, its citizens, or its allies; and 

24 (2) includes an assessment, in classified or un25 classified form, of the capacity, willingness, and past 


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1 practices (if applicable) of the foreign country or en2 tity in relation to the Secretary’s certifications. 

3 (c) PROHIBITION IN CASES OF PRIOR CONFIRMED

4 RECIDIVISM.— 

5 (1) PROHIBITION.—Except as provided in para6 graph (2) and subsection (d), the Secretary of De7 fense may not use any amounts authorized to be ap8 propriated or otherwise made available to the De9 partment of Defense to transfer any individual de10 tained at Guantanamo to the custody or control of 

11 the individual’s country of origin, any other foreign 

12 country, or any other foreign entity if there is a con13 firmed case of any individual who was detained at 

14 United States Naval Station, Guantanamo Bay, 

15 Cuba, at any time after September 11, 2001, who 

16 was transferred to such foreign country or entity 

17 and subsequently engaged in any terrorist activity. 

18 (2) EXCEPTION.—Subject to subsection (e), 

19 paragraph (1) shall not apply to any action taken by 

20 the Secretary to transfer any individual detained at 

21 Guantanamo to effectuate an order affecting the dis22 position of the individual that is issued by a court 

23 or competent tribunal of the United States having 

24 lawful jurisdiction (which the Secretary shall notify 


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1 the appropriate committees of Congress of promptly 

2 after issuance). 

3 (d) NATIONAL SECURITY WAIVER.— 

4 (1) IN GENERAL.—Subject to subsection (e), 

5 the Secretary of Defense may waive the applicability 

6 to a detainee transfer of a certification requirement 

7 specified in subparagraph (D) or (E) of subsection 

8 (b)(1) or the prohibition in subsection (c), if the 

9 Secretary certifies the rest of the criteria required by 

10 subsection (b) for transfers prohibited by subsection 

11 (c) and, with the concurrence of the Secretary of 

12 State and in consultation with the Director of Na13 tional Intelligence, determines that— 

14 (A) alternative actions will be taken to ad15 dress the underlying purpose of the requirement 

16 or requirements to be waived; 

17 (B) in the case of a waiver of subpara18 graph (D) or (E) of subsection (b)(1), it is not 

19 possible to certify that the risks addressed in 

20 the paragraph to be waived have been com21 pletely eliminated, but the actions to be taken 

22 under subparagraph (A) will substantially miti23 gate such risks with regard to the individual to 

24 be transferred; 


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1 (C) in the case of a waiver of subsection 

2 (c), the Secretary has considered any confirmed 

3 case in which an individual who was transferred 

4 to the country subsequently engaged in terrorist 

5 activity, and the actions to be taken under sub6 paragraph (A) will substantially mitigate the 

7 risk of recidivism with regard to the individual 

8 to be transferred; and 

9 (D) the transfer is in the national security 

10 interests of the United States. 

11 (2) REPORTS.—Whenever the Secretary makes 

12 a determination under paragraph (1), the Secretary 

13 shall submit to the appropriate committees of Con14 gress, not later than 30 days before the transfer of 

15 the individual concerned, the following: 

16 (A) A copy of the determination and the 

17 waiver concerned. 

18 (B) A statement of the basis for the deter19 mination, including— 

20 (i) an explanation why the transfer is 

21 in the national security interests of the 

22 United States; 

23 (ii) in the case of a waiver of para24 graph (D) or (E) of subsection (b)(1), an 

25 explanation why it is not possible to certify 


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1 that the risks addressed in the paragraph 

2 to be waived have been completely elimi3 nated; and 

4 (iii) a classified summary of— 

5 (I) the individual’s record of co6 operation while in the custody of or 

7 under the effective control of the De8 partment of Defense; and 

9 (II) the agreements and mecha10 nisms in place to provide for con11 tinuing cooperation. 

12 (C) A summary of the alternative actions 

13 to be taken to address the underlying purpose 

14 of, and to mitigate the risks addressed in, the 

15 paragraph or subsection to be waived. 

16 (D) The assessment required by subsection 

17 (b)(2). 

18 (e) COORDINATION WITH PROHIBITION ON TRANS19 FER TO YEMEN.—While the prohibition in section 5 is in 

20 effect, the exception in subsection (c)(2) and the waiver 

21 authority in subsection (d) shall not apply to authorize 

22 the transfer of an individual detained at Guantanamo to 

23 Yemen. 

24 (f) RECORD OF COOPERATION.—In assessing the risk 

25 that an individual detained at Guantanamo will engage in 


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1 terrorist activity or other actions that could affect the se2 curity of the United States if released for the purpose of 

3 making a certification under subsection (b) or a waiver 

4 under subsection (d), the Secretary of Defense may give 

5 favorable consideration to any such individual— 

6 (1) who has substantially cooperated with 

7 United States intelligence and law enforcement au8 thorities, pursuant to a pre-trial agreement, while in 

9 the custody of or under the effective control of the 

10 Department of Defense; and 

11 (2) for whom agreements and effective mecha12 nisms are in place, to the extent relevant and nec13 essary, to provide for continued cooperation with 

14 United States intelligence and law enforcement au15 thorities. 

16 (g) DEFINITIONS.—In this section: 

17 (1) The term ‘‘appropriate committees of Con18 gress’’ means— 

19 (A) the Committee on Armed Services, the 

20 Committee on Appropriations, and the Select 

21 Committee on Intelligence of the Senate; and 

22 (B) the Committee on Armed Services, the 

23 Committee on Appropriations, and the Perma24 nent Select Committee on Intelligence of the 

25 House of Representatives. 


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1 (2) The term ‘‘individual detained at Guanta2 namo’’ means any individual located at United 

3 States Naval Station, Guantanamo Bay, Cuba, as of 

4 October 1, 2009, who— 

5 (A) is not a citizen of the United States or 

6 a member of the Armed Forces of the United 

7 States; and 

8 (B) is— 

9 (i) in the custody or under the control 

10 of the Department of Defense; or 

11 (ii) otherwise under detention at 

12 United States Naval Station, Guantanamo 

13 Bay, Cuba. 

14 (3) The term ‘‘foreign terrorist organization’’ 

15 means any organization so designated by the Sec16 retary of State under section 219 of the Immigra17 tion and Nationality Act (8 U.S.C. 1189). 

18 (h) REPEAL OF SUPERSEDED REQUIREMENTS AND

19 LIMITATIONS.—Section 1035 of the National Defense Au20 thorization Act for Fiscal Year 2014 (Public Law 113– 

21 66; 127 Stat. 851; 10 U.S.C. 801 note) is repealed. 


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1 SEC. 7. REPORT ON CURRENT DETAINEES AT UNITED 

2 STATES NAVAL STATION, GUANTANAMO BAY, 

3 CUBA, DETERMINED OR ASSESSED TO BE 

4 HIGH-RISK OR MEDIUM RISK. 

5 (a) REPORT REQUIRED.—Not later than 60 days 

6 after the date of the enactment of this Act, the Secretary 

7 of Defense shall submit to the appropriate committees of 

8 Congress a report, in unclassified form, setting forth a list 

9 of the individuals detained at Guantanamo as of the date 

10 of the enactment of this Act who have been determined 

11 or assessed by Joint Task Force Guantanamo, at any time 

12 before the date of the report, to be a high-risk or medium13 risk threat to the United States, its interests, or its allies. 

14 (b) ELEMENTS.—The report under subsection (a) 

15 shall set forth, for each individual covered by the report, 

16 the following: 

17 (1) The name and country of origin. 

18 (2) The date on which first designated or as19 sessed as a high-risk or medium-risk threat to the 

20 United States, its interests, or its allies. 

21 (3) Whether, as of the date of the report, cur22 rently designated or assessed as a high-risk or me23 dium-risk threat to the United States, its interests, 

24 or its allies. 

25 (4) If the designation or assessment changed 

26 between the date specified pursuant to paragraph 


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1 (2) and the date of the report, the year and month 

2 in which the designation or assessment changed and 

3 the designation or assessment to which changed. 

4 (5) To the extent practicable, without jeopard5 izing intelligence sources and methods— 

6 (A) prior actions in support of terrorism, 

7 hostile actions against the United States or its 

8 allies, gross violations of human rights, and 

9 other violations of international law; and 

10 (B) any affiliations with al Qaeda, al 

11 Qaeda affiliates, or other terrorist groups. 

12 (c) DEFINITIONS.—In this section: 

13 (1) The term ‘‘appropriate committees of Con14 gress’’ means— 

15 (A) the Committee on Armed Services, the 

16 Committee on Appropriations, and the Select 

17 Committee on Intelligence of the Senate; and 

18 (B) the Committee on Armed Services, the 

19 Committee on Appropriations, and the Perma20 nent Select Committee on Intelligence of the 

21 House of Representatives. 

22 (2) The term ‘‘individual detained at Guanta23 namo’’ means any individual located at United 

24 States Naval Station, Guantanamo Bay, Cuba, as of 

25 October 1, 2009, who— 


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1 (A) is not a citizen of the United States or 

2 a member of the Armed Forces of the United 

3 States; and 

4 (B) is— 

5 (i) in the custody or under the control 

6 of the Department of Defense; or 

7 (ii) otherwise under detention at 

8 United States Naval Station, Guantanamo 

9 Bay, Cuba. 

10 SECTION 1. SHORT TITLE. 

11 This Act may be cited as the ‘‘Detaining Terrorists 

12 to Protect America Act of 2015’’. 

13 SEC. 2. PROHIBITION ON USE OF FUNDS TO CONSTRUCT OR 

14 MODIFY FACILITIES IN THE UNITED STATES 

15 TO HOUSE DETAINEES TRANSFERRED FROM 

16 UNITED STATES NAVAL STATION, GUANTA17 NAMO BAY, CUBA. 

18 (a) PROHIBITION.—No amounts appropriated or oth19 erwise available for any department or agency of the United 

20 States Government may be used, during the period begin21 ning on the date of the enactment of this Act and ending 

22 on the date that is two years after the date of the enactment 

23 of this Act, to construct or modify any facility in the United 

24 States, its territories, or possessions to house an individual 

25 detained at Guantanamo for the purpose of detention or 


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1 imprisonment in the custody or control of the United States 

2 Government unless authorized by Congress. 

3 (b) EXCEPTION.—The prohibition in subsection (a) 

4 shall not apply to any modification of facilities at United 

5 States Naval Station, Guantanamo Bay, Cuba. 

6 (c) INDIVIDUAL DETAINED AT GUANTANAMO DE7 FINED.—In this section, the term ‘‘individual detained at 

8 Guantanamo’’ means any individual located at United 

9 States Naval Station, Guantanamo Bay, Cuba, as of Octo10 ber 1, 2009, who— 

11 (1) is not a citizen of the United States or a 

12 member of the Armed Forces of the United States; and 

13 (2) is— 

14 (A) in the custody or under the control of 

15 the Department of Defense; or 

16 (B) otherwise under detention at United 

17 States Naval Station, Guantanamo Bay, Cuba. 

18 (d) REPEAL OF SUPERSEDED PROHIBITION.—Section 

19 1033 of the National Defense Authorization Act for Fiscal 

20 Year 2014 (Public Law 113–66; 127 Stat. 850), as amended 

21 by section 1032 of the Carl Levin and Howard P. ‘‘Buck’’ 

22 McKeon National Defense Authorization Act for Fiscal Year 

23 2015 (Public Law 113–291), is repealed. 


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1 SEC. 3. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR 

2 RELEASE TO THE UNITED STATES OF INDI3 VIDUALS DETAINED AT UNITED STATES 

4 NAVAL STATION, GUANTANAMO BAY, CUBA. 

5 (a) PROHIBITION.—No amounts appropriated or oth6 erwise available for any department or agency of the United 

7 States Government may be used, during the period begin8 ning on the date of the enactment of this Act and ending 

9 on the date that is two years after the date of the enactment 

10 of this Act, to transfer, release, or assist in the transfer or 

11 release to or within the United States, its territories, or pos12 sessions of Khalid Sheikh Mohammed or any other detainee 

13 who— 

14 (1) is not a United States citizen or a member 

15 of the Armed Forces of the United States; and 

16 (2) was held on January 20, 2009, at United 

17 States Naval Station, Guantanamo Bay, Cuba, by the 

18 Department of Defense. 

19 (b) REPEAL OF SUPERSEDED PROHIBITION.—Section 

20 1034 of the National Defense Authorization Act for Fiscal 

21 Year 2014 (Public Law 113–66; 127 Stat. 851), as amended 

22 by section 1033 of the Carl Levin and Howard P. ‘‘Buck’’ 

23 McKeon National Defense Authorization Act for Fiscal Year 

24 2015 (Public Law 113–291), is repealed. 


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1 SEC. 4. AUTHORITY TO TEMPORARILY TRANSFER INDIVID2 UALS DETAINED AT UNITED STATES NAVAL 

3 STATION, GUANTANAMO BAY, CUBA, TO THE 

4 UNITED STATES FOR EMERGENCY OR CRIT5 ICAL MEDICAL TREATMENT. 

6 (a) TRANSFER FOR EMERGENCY OR CRITICAL MED7 ICAL TREATMENT AUTHORIZED.—Notwithstanding any 

8 other provision of this Act, or any other provision of law 

9 enacted after September 30, 2013, but subject to subsection 

10 (b), the Secretary of Defense may temporarily transfer any 

11 individual detained at Guantanamo to a Department of 

12 Defense medical facility in the United States for the sole 

13 purpose of providing the individual medical treatment if 

14 the Secretary determines that— 

15 (1) the Senior Medical Officer, Joint Task 

16 Force–Guantanamo Bay, Cuba, has determined that 

17 the medical treatment is necessary to prevent death or 

18 imminent significant injury or harm to the health of 

19 the individual; 

20 (2) based on the recommendation of the Senior 

21 Medical Officer, Joint Task Force–Guantanamo Bay, 

22 Cuba, the medical treatment is not available to be 

23 provided at United States Naval Station, Guanta24 namo Bay, Cuba, without incurring excessive and un25 reasonable costs; and 


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1 (3) the Department of Defense has provided for 

2 appropriate security measures for the custody and 

3 control of the individual during any period in which 

4 the individual is temporarily in the United States 

5 under this subsection. 

6 (b) NOTICE TO CONGRESS REQUIRED BEFORE TRANS7 FER.— 

8 (1) IN GENERAL.—In addition to the require9 ments in subsection (a), an individual may not be 

10 temporarily transferred under the authority in that 

11 subsection unless the Secretary of Defense submits to 

12 the appropriate committees of Congress the notice de13 scribed in paragraph (2)— 

14 (A) not later than 30 days before the date 

15 of the proposed transfer; or 

16 (B) if notice cannot be provided in accord17 ance with subparagraph (A) because of an espe18 cially immediate need for the provision of med19 ical treatment to prevent death or imminent sig20 nificant injury or harm to the health of the indi21 vidual, as soon as is practicable, but not later 

22 than 5 days after the date of transfer. 

23 (2) NOTICE ELEMENTS.—The notice on the 

24 transfer of an individual under this subsection shall 

25 include the following: 


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1 (A) A statement of the basis for the deter2 mination that the transfer is necessary to pre3 vent death or imminent significant injury or 

4 harm to the health of the individual. 

5 (B) The specific Department of Defense 

6 medical facility that will provide medical treat7 ment to the individual. 

8 (C) A description of the actions the Sec9 retary determines have been taken, or will be 

10 taken, to address any risk to the public safety 

11 that could arise in connection with the provision 

12 of medical treatment to the individual in the 

13 United States. 

14 (c) LIMITATION ON EXERCISE OF AUTHORITY.—The 

15 authority of the Secretary of Defense under subsection (a) 

16 may be exercised only by the Secretary of Defense or by 

17 another official of the Department of Defense at the level 

18 of Under Secretary of Defense or higher. 

19 (d) CONDITIONS OF TRANSFER.—An individual who 

20 is temporarily transferred under the authority in subsection 

21 (a) shall— 

22 (1) while in the United States, remain in the 

23 custody and control of the Secretary of Defense at all 

24 times; and 


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1 (2) be returned to United States Naval Station, 

2 Guantanamo Bay, Cuba, as soon as feasible after a 

3 Department of Defense physician determines that— 

4 (A) the individual is medically cleared to 

5 travel; and 

6 (B) in consultation with the Commander, 

7 Joint Task Force–Guantanamo Bay, Cuba, any 

8 necessary follow-up medical care may reasonably 

9 be provided the individual at United States 

10 Naval Station, Guantanamo Bay, Cuba. 

11 (e) STATUS WHILE IN UNITED STATES.—An indi12 vidual who is temporarily transferred under the authority 

13 in subsection (a), while in the United States— 

14 (1) shall be deemed at all times and in all re15 spects to be in the uninterrupted custody of the Sec16 retary of Defense, as though the individual remained 

17 physically at United States Naval Station, Guanta18 namo Bay, Cuba; 

19 (2) shall not at any time be subject to, and may 

20 not apply for or obtain, or be deemed to enjoy, any 

21 right, privilege, status, benefit, or eligibility for any 

22 benefit under any provision of the immigration laws 

23 (as defined in section 101(a)(17) of the Immigration 

24 and Nationality Act (8 U.S.C. 1101(a)(17)), or any 

25 other law or regulation; 


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1 (3) shall not be permitted to avail himself of any 

2 right, privilege, or benefit of any law of the United 

3 States beyond those available to individuals detained 

4 at United States Naval Station, Guantanamo Bay, 

5 Cuba; and 

6 (4) shall not, as a result of such transfer, have 

7 a change in any designation that may have attached 

8 to that detainee while detained at United States 

9 Naval Station, Guantanamo Bay, Cuba, pursuant to 

10 the Authorization for Use of Military Force (Public 

11 Law 107–40), as determined in accordance with ap12 plicable law and regulations.. 

13 (f) JUDICIAL REVIEW PRECLUDED.— 

14 (1) NO CREATION OF ENFORCEABLE RIGHTS.— 

15 Nothing in this section is intended to create any en16 forceable right or benefit, or any claim or cause of ac17 tion, by any party against the United States, or any 

18 other person or entity. 

19 (2) LIMITATION ON JUDICIAL REVIEW.—Except 

20 as provided in paragraph (3), no court, justice, or 

21 judge shall have jurisdiction to hear or consider any 

22 claim or action against the United States or its 

23 agents relating to any aspect of the detention, trans24 fer, treatment, or conditions of confinement of an in25 dividual transferred under this section. 


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1 (3) HABEAS CORPUS.— 

2 (A) JURISDICTION.—The United States Dis3 trict Court for the District of Columbia shall 

4 have exclusive jurisdiction to consider an appli5 cation for writ of habeas corpus challenging the 

6 fact or duration of detention and seeking release 

7 from custody filed by or on behalf of an indi8 vidual who is in the United States pursuant to 

9 a temporary transfer under subsection (a). Such 

10 jurisdiction shall be limited to that required by 

11 the Constitution with respect to the fact or dura12 tion of detention. 

13 (B) SCOPE OF AUTHORITY.—A court order 

14 in a proceeding covered by paragraph (3) may 

15 not— 

16 (i) review, halt, or stay the return of 

17 the individual who is the object of the appli18 cation to United States Naval Station, 

19 Guantanamo Bay, Cuba, including pursu20 ant to subsection (d); or 

21 (ii) order the release of the individual 

22 within the United States. 

23 (g) NOTIFICATION.—The Secretary of Defense shall no24 tify the Committees on Armed Services of the Senate and 

25 the House of Representatives of any temporary transfer of 


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1 an individual under the authority in subsection (a) not 

2 later than 5 days after the transfer of the individual under 

3 that authority. 

4 (h) DEFINITIONS.—In this section: 

5 (1) The term ‘‘appropriate committees of Con6 gress’’ means— 

7 (A) the Committee on Armed Services, the 

8 Committee on Appropriations, and the Select 

9 Committee on Intelligence of the Senate; and 

10 (B) the Committee on Armed Services, the 

11 Committee on Appropriations, and the Perma12 nent Select Committee on Intelligence of the 

13 House of Representatives. 

14 (2) The term ‘‘individual detained at Guanta15 namo’’ means any individual located at United 

16 States Naval Station, Guantanamo Bay, Cuba, as of 

17 October 1, 2009, who— 

18 (A) is not a citizen of the United States or 

19 a member of the Armed Forces of the United 

20 States; and 

21 (B) is— 

22 (i) in the custody or under the control 

23 of the Department of Defense; or 


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1 (ii) otherwise under detention at 

2 United States Naval Station, Guantanamo 

3 Bay, Cuba. 

4 SEC. 5. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR 

5 RELEASE ABROAD OF INDIVIDUALS DE6 TAINED AT UNITED STATES NAVAL STATION, 

7 GUANTANAMO BAY, CUBA, DETERMINED OR 

8 ASSESSED TO BE HIGH-RISK OR MEDIUM-RISK 

9 THREATS. 

10 (a) PROHIBITION.— 

11 (1) IN GENERAL.—Notwithstanding any other 

12 provision of law, no amounts appropriated or other13 wise available for any department or agency of the 

14 United States Government may be used, during the 

15 period beginning on the date of the enactment of this 

16 Act and ending on the date that is two years after the 

17 date of the enactment of this Act, to transfer, release, 

18 or assist in the transfer or release of any individual 

19 described in paragraph (2) to the custody or control 

20 of the individual’s country of origin, any other for21 eign country, or any other foreign entity. 

22 (2) COVERED INDIVIDUALS.—An individual de23 scribed in this paragraph is any individual detained 

24 in the custody or under the control of the Department 

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1 namo Bay, Cuba, who is currently or ever has been 

2 determined or assessed by Joint Task Force Guanta3 namo to be a high-risk or medium-risk threat to the 

4 United States, its interests, or its allies. 

5 (b) EXCEPTION.—Subsection (a) shall not apply to 

6 any action taken by the head of a department or agency 

7 of the United States Government to transfer, release, or as8 sist in the transfer or release of any individual described 

9 in that subsection to effectuate an order affecting the dis10 position of the individual that is issued by a court or com11 petent tribunal of the United States having lawful jurisdic12 tion (which the Secretary shall notify the appropriate com13 mittees of Congress promptly after issuance). 

14 (c) APPROPRIATE COMMITTEES OF CONGRESS DE15 FINED.—In this section, the term ‘‘appropriate committees 

16 of Congress’’ means— 

17 (1) the Committee on Armed Services, the Com18 mittee on Appropriations, and the Select Committee 

19 on Intelligence of the Senate; and 

20 (2) the Committee on Armed Services, the Com21 mittee on Appropriations, and the Permanent Select 

22 Committee on Intelligence of the House of Representa23 tives. 


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1 SEC. 6. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR 

2 RELEASE TO YEMEN OF INDIVIDUALS DE3 TAINED AT UNITED STATES NAVAL STATION, 

4 GUANTANAMO BAY, CUBA. 

5 Notwithstanding any other provision of law, no 

6 amounts appropriated or otherwise available for any de7 partment or agency of the United States Government may 

8 be used, during the period beginning on the date of the en9 actment of this Act and ending on the date that is two years 

10 after the date of the enactment of this Act, to transfer, re11 lease, or assist in the transfer or release of any individual 

12 detained in the custody or under the control of the Depart13 ment of Defense at United States Naval Station, Guanta14 namo Bay, Cuba, to the custody or control of the Republic 

15 of Yemen or any entity within Yemen. 

16 SEC. 7. REENACTMENT AND MODIFICATION OF CERTAIN 

17 PRIOR REQUIREMENTS FOR CERTIFICATIONS 

18 RELATING TO TRANSFER OF DETAINEES AT 

19 UNITED STATES NAVAL STATION, GUANTA20 NAMO BAY, CUBA, TO FOREIGN COUNTRIES 

21 AND OTHER FOREIGN ENTITIES. 

22 (a) CERTIFICATION REQUIRED PRIOR TO TRANS23 FER.— 

24 (1) IN GENERAL.—Except as provided in para25 graph (3) and subsection (d), the Secretary of Defense 

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1 priated or otherwise available to the Department of 

2 Defense to transfer any individual detained at Guan3 tanamo to the custody or control of the individual’s 

4 country of origin, any other foreign country, or any 

5 other foreign entity unless the Secretary submits to 

6 the appropriate committees of Congress the certifi7 cation described in subsection (b) not later than 30 

8 days before the transfer of the individual. 

9 (2) SCOPE OF REQUIREMENT.—The requirement 

10 in paragraph (1) applies to any authorized transfer 

11 or release of an individual described in that para12 graph after the date of the enactment of this Act, in13 cluding a transfer or release of such an individual 

14 who is also described in paragraph (2) of section 5(a) 

15 after the prohibition in section 5(a) ceases to be in ef16 fect. 

17 (3) EXCEPTION.—Paragraph (1) shall not apply 

18 to any action taken by the Secretary to transfer any 

19 individual detained at Guantanamo to effectuate an 

20 order affecting the disposition of the individual that 

21 is issued by a court or competent tribunal of the 

22 United States having lawful jurisdiction (which the 

23 Secretary shall notify the appropriate committees of 

24 Congress of promptly after issuance). 


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1 (b) CERTIFICATION.—A certification described in this 

2 subsection is a written certification made by the Secretary 

3 of Defense, with the concurrence of the Secretary of State 

4 and in consultation with the Director of National Intel5 ligence, that— 

6 (1) the government of the foreign country or the 

7 recognized leadership of the foreign entity to which 

8 the individual detained at Guantanamo is to be 

9 transferred— 

10 (A) is not a designated state sponsor of ter11 rorism or a designated foreign terrorist organi12 zation; 

13 (B) maintains control over each detention 

14 facility in which the individual is to be detained 

15 if the individual is to be housed in a detention 

16 facility; 

17 (C) is not, as of the date of the certification, 

18 facing a threat that is likely to substantially af19 fect its ability to exercise control over the indi20 vidual; 

21 (D) has taken or agreed to take effective ac22 tions to ensure that the individual cannot take 

23 action to threaten the United States, its citizens, 

24 or its allies in the future; 


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1 (E) has taken or agreed to take such actions 

2 as the Secretary of Defense determines are nec3 essary to ensure that the individual cannot en4 gage or reengage in any terrorist activity; and 

5 (F) has agreed to share with the United 

6 States any information that— 

7 (i) is related to the individual or any 

8 associates of the individual; and 

9 (ii) could affect the security of the 

10 United States, its citizens, or its allies; and 

11 (2) includes an assessment, in classified or un12 classified form, of the capacity, willingness, and past 

13 practices (if applicable) of the foreign country or enti14 ty in relation to the Secretary’s certifications. 

15 (c) PROHIBITION IN CASES OF PRIOR CONFIRMED RE16 CIDIVISM.— 

17 (1) PROHIBITION.—Except as provided in para18 graph (2) and subsection (d), the Secretary of Defense 

19 may not use any amounts authorized to be appro20 priated or otherwise made available to the Depart21 ment of Defense to transfer any individual detained 

22 at Guantanamo to the custody or control of the indi23 vidual’s country of origin, any other foreign country, 

24 or any other foreign entity if there is a confirmed 

25 case of any individual who was detained at United 


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1 States Naval Station, Guantanamo Bay, Cuba, at 

2 any time after September 11, 2001, who was trans3 ferred to such foreign country or entity and subse4 quently engaged in any terrorist activity. 

5 (2) EXCEPTION.—Subject to subsection (e), para6 graph (1) shall not apply to any action taken by the 

7 Secretary to transfer any individual detained at 

8 Guantanamo to effectuate an order affecting the dis9 position of the individual that is issued by a court or 

10 competent tribunal of the United States having lawful 

11 jurisdiction (which the Secretary shall notify the ap12 propriate committees of Congress of promptly after 

13 issuance). 

14 (d) NATIONAL SECURITY WAIVER.— 

15 (1) IN GENERAL.—Subject to subsection (e), the 

16 Secretary of Defense may waive the applicability to 

17 a detainee transfer of a certification requirement 

18 specified in subparagraph (D) or (E) of subsection 

19 (b)(1) or the prohibition in subsection (c), if the Sec20 retary certifies the rest of the criteria required by sub21 section (b) for transfers prohibited by subsection (c) 

22 and, with the concurrence of the Secretary of State 

23 and in consultation with the Director of National In24 telligence, determines that— 


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1 (A) alternative actions will be taken to ad2 dress the underlying purpose of the requirement 

3 or requirements to be waived; 

4 (B) in the case of a waiver of subparagraph 

5 (D) or (E) of subsection (b)(1), it is not possible 

6 to certify that the risks addressed in the para7 graph to be waived have been completely elimi8 nated, but the actions to be taken under subpara9 graph (A) will substantially mitigate such risks 

10 with regard to the individual to be transferred; 

11 (C) in the case of a waiver of subsection (c), 

12 the Secretary has considered any confirmed case 

13 in which an individual who was transferred to 

14 the country subsequently engaged in terrorist ac15 tivity, and the actions to be taken under sub16 paragraph (A) will substantially mitigate the 

17 risk of recidivism with regard to the individual 

18 to be transferred; and 

19 (D) the transfer is in the national security 

20 interests of the United States. 

21 (2) REPORTS.—Whenever the Secretary makes a 

22 determination under paragraph (1), the Secretary 

23 shall submit to the appropriate committees of Con24 gress, not later than 30 days before the transfer of the 

25 individual concerned, the following: 


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1 (A) A copy of the determination and the 

2 waiver concerned. 

3 (B) A statement of the basis for the deter4 mination, including— 

5 (i) an explanation why the transfer is 

6 in the national security interests of the 

7 United States; 

8 (ii) in the case of a waiver of para9 graph (D) or (E) of subsection (b)(1), an 

10 explanation why it is not possible to certify 

11 that the risks addressed in the paragraph to 

12 be waived have been completely eliminated; 

13 and 

14 (iii) a classified summary of— 

15 (I) the individual’s record of co16 operation while in the custody of or 

17 under the effective control of the De18 partment of Defense; and 

19 (II) the agreements and mecha20 nisms in place to provide for con21 tinuing cooperation. 

22 (C) A summary of the alternative actions to 

23 be taken to address the underlying purpose of, 

24 and to mitigate the risks addressed in, the para25 graph or subsection to be waived. 


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1 (D) The assessment required by subsection 

2 (b)(2). 

3 (e) COORDINATION WITH PROHIBITION ON TRANSFER

4 TO YEMEN.—While the prohibition in section 6 is in effect, 

5 the exception in subsection (c)(2) and the waiver authority 

6 in subsection (d) shall not apply to authorize the transfer 

7 of an individual detained at Guantanamo to Yemen. 

8 (f) RECORD OF COOPERATION.—In assessing the risk 

9 that an individual detained at Guantanamo will engage 

10 in terrorist activity or other actions that could affect the 

11 security of the United States if released for the purpose of 

12 making a certification under subsection (b) or a waiver 

13 under subsection (d), the Secretary of Defense may give fa14 vorable consideration to any such individual— 

15 (1) who has substantially cooperated with United 

16 States intelligence and law enforcement authorities, 

17 pursuant to a pre-trial agreement, while in the cus18 tody of or under the effective control of the Depart19 ment of Defense; and 

20 (2) for whom agreements and effective mecha21 nisms are in place, to the extent relevant and nec22 essary, to provide for continued cooperation with 

23 United States intelligence and law enforcement au24 thorities. 

25 (g) DEFINITIONS.—In this section: 


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1 (1) The term ‘‘appropriate committees of Con2 gress’’ means— 

3 (A) the Committee on Armed Services, the 

4 Committee on Appropriations, and the Select 

5 Committee on Intelligence of the Senate; and 

6 (B) the Committee on Armed Services, the 

7 Committee on Appropriations, and the Perma8 nent Select Committee on Intelligence of the 

9 House of Representatives. 

10 (2) The term ‘‘individual detained at Guanta11 namo’’ means any individual located at United 

12 States Naval Station, Guantanamo Bay, Cuba, as of 

13 October 1, 2009, who— 

14 (A) is not a citizen of the United States or 

15 a member of the Armed Forces of the United 

16 States; and 

17 (B) is— 

18 (i) in the custody or under the control 

19 of the Department of Defense; or 

20 (ii) otherwise under detention at 

21 United States Naval Station, Guantanamo 

22 Bay, Cuba. 

23 (3) The term ‘‘foreign terrorist organization’’ 

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1 retary of State under section 219 of the Immigration 

2 and Nationality Act (8 U.S.C. 1189). 

3 (h) REPEAL OF SUPERSEDED REQUIREMENTS AND

4 LIMITATIONS.—Section 1035 of the National Defense Au5 thorization Act for Fiscal Year 2014 (Public Law 113–66; 

6 127 Stat. 851; 10 U.S.C. 801 note) is repealed. 

7 SEC. 8. MINIMUM REQUIREMENTS FOR OPERATIONS AT DE8 TENTION FACILITY AT UNITED STATES NAVAL 

9 STATION, GUANTANAMO BAY, CUBA. 

10 The Secretary of Defense shall ensure that operations 

11 at the detention facility at United States Naval Station, 

12 Guantanamo Bay, Cuba, are conducted in a manner con13 sistent with each of the following: 

14 (1) The law of armed conflict, including Com15 mon Article 3 of the Geneva Conventions. 

16 (2) Sections 1402 and 1403 of the Detainee 

17 Treatment Act of 2005 (10 U.S.C. 801 note; 42 U.S.C. 

18 2000dd). 

19 SEC. 9. REPORT ON CURRENT DETAINEES AT UNITED 

20 STATES NAVAL STATION, GUANTANAMO BAY, 

21 CUBA, DETERMINED OR ASSESSED TO BE 

22 HIGH-RISK OR MEDIUM RISK. 

23 (a) REPORT REQUIRED.—Not later than 60 days after 

24 the date of the enactment of this Act, the Secretary of De25 fense shall submit to the appropriate committees of Congress 


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1 a report, in unclassified form, setting forth a list of the in2 dividuals detained at Guantanamo as of the date of the en3 actment of this Act who have been determined or assessed 

4 by Joint Task Force Guantanamo, at any time before the 

5 date of the report, to be a high-risk or medium-risk threat 

6 to the United States, its interests, or its allies. 

7 (b) ELEMENTS.—The report under subsection (a) shall 

8 set forth, for each individual covered by the report, the fol9 lowing: 

10 (1) The name and country of origin. 

11 (2) The date on which first designated or as12 sessed as a high-risk or medium-risk threat to the 

13 United States, its interests, or its allies. 

14 (3) Whether, as of the date of the report, cur15 rently designated or assessed as a high-risk or me16 dium-risk threat to the United States, its interests, or 

17 its allies. 

18 (4) If the designation or assessment changed be19 tween the date specified pursuant to paragraph (2) 

20 and the date of the report, the year and month in 

21 which the designation or assessment changed and the 

22 designation or assessment to which changed. 

23 (5) To the extent practicable, without jeopard24 izing intelligence sources and methods— 


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1 (A) prior actions in support of terrorism, 

2 hostile actions against the United States or its 

3 allies, gross violations of human rights, and 

4 other violations of international law; and 

5 (B) any affiliations with al Qaeda, al 

6 Qaeda affiliates, or other terrorist groups. 

7 (c) DEFINITIONS.—In this section: 

8 (1) The term ‘‘appropriate committees of Con9 gress’’ means— 

10 (A) the Committee on Armed Services, the 

11 Committee on Appropriations, and the Select 

12 Committee on Intelligence of the Senate; and 

13 (B) the Committee on Armed Services, the 

14 Committee on Appropriations, and the Perma15 nent Select Committee on Intelligence of the 

16 House of Representatives. 

17 (2) The term ‘‘individual detained at Guanta18 namo’’ means any individual located at United 

19 States Naval Station, Guantanamo Bay, Cuba, as of 

20 October 1, 2009, who— 

21 (A) is not a citizen of the United States or 

22 a member of the Armed Forces of the United 

23 States; and 

24 (B) is— 


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1 (i) in the custody or under the control 

2 of the Department of Defense; or 

3 (ii) otherwise under detention at 

4 United States Naval Station, Guantanamo 

5 Bay, Cuba. 

6 SEC. 10. SEMIANNUAL REPORTS ON USE OF UNITED STATES 

7 NAVAL STATION, GUANTANAMO BAY, CUBA, 

8 AND ANY OTHER DEPARTMENT OF DEFENSE 

9 OR BUREAU OF PRISONS PRISON OR OTHER 

10 DETENTION OR DISCIPLINARY FACILITY IN 

11 RECRUITMENT AND OTHER PROPAGANDA OF 

12 TERRORIST ORGANIZATIONS. 

13 (a) IN GENERAL.—Not later than six months after the 

14 date of the enactment of this Act, and every six months 

15 thereafter, the Secretary of Defense shall, in consultation 

16 with the Director of National Intelligence, submit to Con17 gress a report on the use by terrorist organizations and 

18 their leaders of images and symbols relating to United 

19 States Naval Station, Guantanamo Bay, Cuba, and any 

20 other Department of Defense or Bureau of Prisons prison 

21 or other detention or disciplinary facility for recruitment 

22 and other propaganda purposes during the six-month pe23 riod ending on the date of such report. Each report shall 

24 include the following: 


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1 (1) A description and assessment of the effective2 ness of the use of such images and symbols for recruit3 ment and other propaganda purposes. 

4 (2) A description and assessment of the efforts of 

5 the United States Government to counter the use of 

6 such images and symbols for such purposes and to 

7 disseminate accurate information about such facili8 ties. 

9 (b) ADDITIONAL MATERIAL IN FIRST REPORT.—The 

10 first report under subsection (a) shall include a description 

11 of the use by terrorist organizations and their leaders of 

12 images and symbols relating to United States Naval Sta13 tion, Guantanamo Bay, Cuba, and any other Department 

14 of Defense or Bureau of Prisons prison or other detention 

15 or disciplinary facility for recruitment and other propa16 ganda purposes before the date of the enactment of this Act. 


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Calendar No. 20 

114TH CONGRESS 

1ST SESSION S. 165 

A BILL 

To extend and enhance prohibitions and limitations 

Guantanamo Bay, Cuba, and for other purposes. uals detained at United States Naval Station, with respect to the transfer or release of individFEBRUARY 23, 2015 

Reported with an amendment 


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