II 

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, and Mr. MCCAIN) introduced the following bill; which was read twice and referred to the Committee on Armed Services 

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, 

3 SECTION 1. SHORT TITLE. 

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

5 to Protect America Act of 2015’’. 


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

2 OR MODIFY FACILITIES IN THE UNITED 

3 STATES TO HOUSE DETAINEES TRANS4 FERRED FROM UNITED STATES NAVAL STA5 TION, GUANTANAMO BAY, CUBA. 

6 (a) PROHIBITION.—No amounts appropriated or oth7 erwise available for any department or agency of the 

8 United States Government may be used, during the period 

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

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

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

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

13 house an individual detained at Guantanamo for the pur14 pose of detention or imprisonment in the custody or con15 trol of the United States Government unless authorized 

16 by Congress. 

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

18 shall not apply to any modification of facilities at United 

19 States Naval Station, Guantanamo Bay, Cuba. 

20 (c) INDIVIDUAL DETAINED AT GUANTANAMO DE21 FINED.—In this section, the term ‘‘individual detained at 

22 Guantanamo’’ means any individual located at United 

23 States Naval Station, Guantanamo Bay, Cuba, as of Octo24 ber 1, 2009, who— 


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

2 member of the Armed Forces of the United States; 

3 and 

4 (2) is— 

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

6 the Department of Defense; or 

7 (B) otherwise under detention at United 

8 States Naval Station, Guantanamo Bay, Cuba. 

9 (d) REPEAL OF SUPERSEDED PROHIBITION.—Sec10 tion 1033 of the National Defense Authorization Act for 

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

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

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

14 for Fiscal Year 2015 (Public Law 113–291), is repealed. 

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

16 RELEASE TO THE UNITED STATES OF INDI17 VIDUALS DETAINED AT UNITED STATES 

18 NAVAL STATION, GUANTANAMO BAY, CUBA. 

19 (a) PROHIBITION.—No amounts appropriated or oth20 erwise available for any department or agency of the 

21 United States Government may be used, during the period 

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

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

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

25 transfer or release to or within the United States, its terriVerDate Sep 11 2014 19:05 Jan 23, 2015 Jkt 049200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S165.IS S165

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1 tories, or possessions of Khalid Sheikh Mohammed or any 

2 other detainee who— 

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

4 of the Armed Forces of the United States; and 

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

6 States Naval Station, Guantanamo Bay, Cuba, by 

7 the Department of Defense. 

8 (b) REPEAL OF SUPERSEDED PROHIBITION.—Sec9 tion 1034 of the National Defense Authorization Act for 

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

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

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

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

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

15 RELEASE ABROAD OF INDIVIDUALS DE16 TAINED AT UNITED STATES NAVAL STATION, 

17 GUANTANAMO BAY, CUBA, DETERMINED OR 

18 ASSESSED TO BE HIGH-RISK OR MEDIUM19 RISK THREATS. 

20 (a) PROHIBITION.— 

21 (1) IN GENERAL.—Notwithstanding any other 

22 provision of law, no amounts appropriated or other23 wise available for any department or agency of the 

24 United States Government may be used, during the 

25 period beginning on the date of the enactment of 


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

2 after the date of the enactment of this Act, to trans3 fer, release, or assist in the transfer or release of 

4 any individual described in paragraph (2) to the cus5 tody or control of the individual’s country of origin, 

6 any other foreign country, or any other foreign enti7 ty. 

8 (2) COVERED INDIVIDUALS.—An individual de9 scribed in this paragraph is any individual detained 

10 in the custody or under the control of the Depart11 ment of Defense at United States Naval Station, 

12 Guantanamo Bay, Cuba, who is currently or ever 

13 has been determined or assessed by Joint Task 

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

15 threat to the United States, its interests, or its al16 lies. 

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

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

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

20 assist in the transfer or release of any individual described 

21 in that subsection to effectuate an order affecting the dis22 position of the individual that is issued by a court or com23 petent tribunal of the United States having lawful jurisdic24 tion (which the Secretary shall notify the appropriate com25 mittees of Congress promptly after issuance). 


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1 (c) APPROPRIATE COMMITTEES OF CONGRESS DE2 FINED.—In this section, the term ‘‘appropriate commit3 tees of Congress’’ means— 

4 (1) the Committee on Armed Services, the 

5 Committee on Appropriations, and the Select Com6 mittee on Intelligence of the Senate; and 

7 (2) the Committee on Armed Services, the 

8 Committee on Appropriations, and the Permanent 

9 Select Committee on Intelligence of the House of 

10 Representatives. 

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

12 RELEASE TO YEMEN OF INDIVIDUALS DE13 TAINED AT UNITED STATES NAVAL STATION, 

14 GUANTANAMO BAY, CUBA. 

15 Notwithstanding any other provision of law, no 

16 amounts appropriated or otherwise available for any de17 partment or agency of the United States Government may 

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

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

20 years after the date of the enactment of this Act, to trans21 fer, release, or assist in the transfer or release of any indi22 vidual detained in the custody or under the control of the 

23 Department of Defense at United States Naval Station, 

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

25 Republic of Yemen or any entity within Yemen. 


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1 SEC. 6. REENACTMENT AND MODIFICATION OF CERTAIN 

2 PRIOR REQUIREMENTS FOR CERTIFICATIONS 

3 RELATING TO TRANSFER OF DETAINEES AT 

4 UNITED STATES NAVAL STATION, GUANTA5 NAMO BAY, CUBA, TO FOREIGN COUNTRIES 

6 AND OTHER FOREIGN ENTITIES. 

7 (a) CERTIFICATION REQUIRED PRIOR TO TRANS8 FER.— 

9 (1) IN GENERAL.—Except as provided in para10 graph (3) and subsection (d), the Secretary of De11 fense may not use any amounts authorized to be ap12 propriated or otherwise available to the Department 

13 of Defense to transfer any individual detained at 

14 Guantanamo to the custody or control of the individ15 ual’s country of origin, any other foreign country, or 

16 any other foreign entity unless the Secretary sub17 mits to the appropriate committees of Congress the 

18 certification described in subsection (b) not later 

19 than 30 days before the transfer of the individual. 

20 (2) SCOPE OF REQUIREMENT.—The require21 ment in paragraph (1) applies to any authorized 

22 transfer or release of an individual described in that 

23 paragraph after the date of the enactment of this 

24 Act, including a transfer or release of such an indi25 vidual who is also described in paragraph (2) of secVerDate Sep 11 2014 19:05 Jan 23, 2015 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S165.IS S165

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1 tion 4(a) after the prohibition in section 4(a) ceases 

2 to be in effect. 

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

4 apply to any action taken by the Secretary to trans5 fer any individual detained at Guantanamo to effec6 tuate an order affecting the disposition of the indi7 vidual that is issued by a court or competent tri8 bunal of the United States having lawful jurisdiction 

9 (which the Secretary shall notify the appropriate 

10 committees of Congress of promptly after issuance). 

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

12 subsection is a written certification made by the Secretary 

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

14 and in consultation with the Director of National Intel15 ligence, that— 

16 (1) the government of the foreign country or 

17 the recognized leadership of the foreign entity to 

18 which the individual detained at Guantanamo is to 

19 be transferred— 

20 (A) is not a designated state sponsor of 

21 terrorism or a designated foreign terrorist orga22 nization; 

23 (B) maintains control over each detention 

24 facility in which the individual is to be detained 


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1 if the individual is to be housed in a detention 

2 facility; 

3 (C) is not, as of the date of the certifi4 cation, facing a threat that is likely to substan5 tially affect its ability to exercise control over 

6 the individual; 

7 (D) has taken or agreed to take effective 

8 actions to ensure that the individual cannot 

9 take action to threaten the United States, its 

10 citizens, or its allies in the future; 

11 (E) has taken or agreed to take such ac12 tions as the Secretary of Defense determines 

13 are necessary to ensure that the individual can14 not engage or reengage in any terrorist activity; 

15 and 

16 (F) has agreed to share with the United 

17 States any information that— 

18 (i) is related to the individual or any 

19 associates of the individual; and 

20 (ii) could affect the security of the 

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

22 (2) includes an assessment, in classified or un23 classified form, of the capacity, willingness, and past 

24 practices (if applicable) of the foreign country or en25 tity in relation to the Secretary’s certifications. 


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1 (c) PROHIBITION IN CASES OF PRIOR CONFIRMED

2 RECIDIVISM.— 

3 (1) PROHIBITION.—Except as provided in para4 graph (2) and subsection (d), the Secretary of De5 fense may not use any amounts authorized to be ap6 propriated or otherwise made available to the De7 partment of Defense to transfer any individual de8 tained at Guantanamo to the custody or control of 

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

10 country, or any other foreign entity if there is a con11 firmed case of any individual who was detained at 

12 United States Naval Station, Guantanamo Bay, 

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

14 was transferred to such foreign country or entity 

15 and subsequently engaged in any terrorist activity. 

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

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

18 the Secretary to transfer any individual detained at 

19 Guantanamo to effectuate an order affecting the dis20 position of the individual that is issued by a court 

21 or competent tribunal of the United States having 

22 lawful jurisdiction (which the Secretary shall notify 

23 the appropriate committees of Congress of promptly 

24 after issuance). 

25 (d) NATIONAL SECURITY WAIVER.— 


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

2 the Secretary of Defense may waive the applicability 

3 to a detainee transfer of a certification requirement 

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

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

6 Secretary certifies the rest of the criteria required by 

7 subsection (b) for transfers prohibited by subsection 

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

9 State and in consultation with the Director of Na10 tional Intelligence, determines that— 

11 (A) alternative actions will be taken to ad12 dress the underlying purpose of the requirement 

13 or requirements to be waived; 

14 (B) in the case of a waiver of subpara15 graph (D) or (E) of subsection (b)(1), it is not 

16 possible to certify that the risks addressed in 

17 the paragraph to be waived have been com18 pletely eliminated, but the actions to be taken 

19 under subparagraph (A) will substantially miti20 gate such risks with regard to the individual to 

21 be transferred; 

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

23 (c), the Secretary has considered any confirmed 

24 case in which an individual who was transferred 

25 to the country subsequently engaged in terrorist 


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1 activity, and the actions to be taken under sub2 paragraph (A) will substantially mitigate the 

3 risk of recidivism with regard to the individual 

4 to be transferred; and 

5 (D) the transfer is in the national security 

6 interests of the United States. 

7 (2) REPORTS.—Whenever the Secretary makes 

8 a determination under paragraph (1), the Secretary 

9 shall submit to the appropriate committees of Con10 gress, not later than 30 days before the transfer of 

11 the individual concerned, the following: 

12 (A) A copy of the determination and the 

13 waiver concerned. 

14 (B) A statement of the basis for the deter15 mination, including— 

16 (i) an explanation why the transfer is 

17 in the national security interests of the 

18 United States; 

19 (ii) in the case of a waiver of para20 graph (D) or (E) of subsection (b)(1), an 

21 explanation why it is not possible to certify 

22 that the risks addressed in the paragraph 

23 to be waived have been completely elimi24 nated; and 

25 (iii) a classified summary of— 


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1 (I) the individual’s record of co2 operation while in the custody of or 

3 under the effective control of the De4 partment of Defense; and 

5 (II) the agreements and mecha6 nisms in place to provide for con7 tinuing cooperation. 

8 (C) A summary of the alternative actions 

9 to be taken to address the underlying purpose 

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

11 paragraph or subsection to be waived. 

12 (D) The assessment required by subsection 

13 (b)(2). 

14 (e) COORDINATION WITH PROHIBITION ON TRANS15 FER TO YEMEN.—While the prohibition in section 5 is in 

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

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

18 the transfer of an individual detained at Guantanamo to 

19 Yemen. 

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

21 that an individual detained at Guantanamo will engage in 

22 terrorist activity or other actions that could affect the se23 curity of the United States if released for the purpose of 

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


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

2 favorable consideration to any such individual— 

3 (1) who has substantially cooperated with 

4 United States intelligence and law enforcement au5 thorities, pursuant to a pre-trial agreement, while in 

6 the custody of or under the effective control of the 

7 Department of Defense; and 

8 (2) for whom agreements and effective mecha9 nisms are in place, to the extent relevant and nec10 essary, to provide for continued cooperation with 

11 United States intelligence and law enforcement au12 thorities. 

13 (g) DEFINITIONS.—In this section: 

14 (1) The term ‘‘appropriate committees of Con15 gress’’ means— 

16 (A) the Committee on Armed Services, the 

17 Committee on Appropriations, and the Select 

18 Committee on Intelligence of the Senate; and 

19 (B) the Committee on Armed Services, the 

20 Committee on Appropriations, and the Perma21 nent Select Committee on Intelligence of the 

22 House of Representatives. 

23 (2) The term ‘‘individual detained at Guanta24 namo’’ means any individual located at United 


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

2 October 1, 2009, who— 

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

4 a member of the Armed Forces of the United 

5 States; and 

6 (B) is— 

7 (i) in the custody or under the control 

8 of the Department of Defense; or 

9 (ii) otherwise under detention at 

10 United States Naval Station, Guantanamo 

11 Bay, Cuba. 

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

13 means any organization so designated by the Sec14 retary of State under section 219 of the Immigra15 tion and Nationality Act (8 U.S.C. 1189). 

16 (h) REPEAL OF SUPERSEDED REQUIREMENTS AND

17 LIMITATIONS.—Section 1035 of the National Defense Au18 thorization Act for Fiscal Year 2014 (Public Law 113– 

19 66; 127 Stat. 851; 10 U.S.C. 801 note) is repealed. 

20 SEC. 7. REPORT ON CURRENT DETAINEES AT UNITED 

21 STATES NAVAL STATION, GUANTANAMO BAY, 

22 CUBA, DETERMINED OR ASSESSED TO BE 

23 HIGH-RISK OR MEDIUM RISK. 

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

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


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1 of Defense shall submit to the appropriate committees of 

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

3 of the individuals detained at Guantanamo as of the date 

4 of the enactment of this Act who have been determined 

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

6 before the date of the report, to be a high-risk or medium7 risk threat to the United States, its interests, or its allies. 

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

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

10 the following: 

11 (1) The name and country of origin. 

12 (2) The date on which first designated or as13 sessed as a high-risk or medium-risk threat to the 

14 United States, its interests, or its allies. 

15 (3) Whether, as of the date of the report, cur16 rently designated or assessed as a high-risk or me17 dium-risk threat to the United States, its interests, 

18 or its allies. 

19 (4) If the designation or assessment changed 

20 between the date specified pursuant to paragraph 

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

22 in which the designation or assessment changed and 

23 the designation or assessment to which changed. 

24 (5) To the extent practicable, without jeopard25 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. 

Æ 


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