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Tuesday, November 29, 2011

Detainee Provisions in the National Defense Authorization Bills

Jennifer K. Elsea
Legislative Attorney

Michael John Garcia
Legislative Attorney

Both House and Senate bills competing to become the National Defense Authorization Act for FY2012 contain a subtitle addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and more broadly, hostilities against Al Qaeda and other entities. At the heart of both bills’ detainee provisions appears to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the Authorization for Use of Military Force (AUMF, P.L. 107-40) in the aftermath of the terrorist attacks of September 11, 2001. 

H.R. 1540
, as passed by the House of Representatives on May 26, 2011, contains provisions that would reaffirm the conflict and define its scope; impose specific restrictions on the transfer of any non-citizen wartime detainee into the United States; place stringent conditions on the transfer or release of any Guantanamo detainee to a foreign country; and require that any foreign national who has engaged in an offense related to a terrorist attack be tried by military commission if jurisdiction exists.

Shortly before H.R. 1540 was approved by the House, the White House issued a statement regarding its provisions. While supportive of most aspects of the bill, it was highly critical of those provisions concerning detainee matters. The Administration voiced strong opposition to the House provision reaffirming the existence of the armed conflict with Al Qaeda and arguably redefining its scope. It threatened to veto any version of the bill that contains provisions that the Administration views as challenging critical executive branch authority, including restrictions on detainee transfers and measures affecting review procedures.

In June, the Senate Armed Services Committee reported its initial version of the bill, S. 1253. The bill included many provisions similar to the House bill, but also included a provision requiring the military detention of certain terrorist suspects. After the White House and the chairs of other Senate committees objected to some of the provisions, Senate Majority Leader Reid delayed consideration of S. 1253 pending a resolution of the disputed language. The Senate Armed Services Committee reported a second version of the authorization bill on November 15, 2011, addressing some, but not all of the concerns. The new bill, S. 1867, would authorize the detention of certain categories of persons and require the military detention of a subset of them; regulate status determinations for persons held pursuant to the AUMF, regardless of location; regulate periodic review proceedings concerning the continued detention of Guantanamo detainees; and continue current funding restrictions that relate to Guantanamo detainee transfers to foreign countries. Unlike the House bill, the Senate bill would not bar the transfer of detainees into the United States for trial or perhaps for other purposes.

Despite the revisions to the detainee provisions, the Administration threatened to veto “any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation.”

This report offers a brief background of the salient issues raised by the H.R. 1540 and S. 1867 regarding detention matters, provides a section-by-section analysis of the relevant subdivision of each bill, and compares the bills’ approach with respect to the major issues they address.

Date of Report: November 18, 2011
Number of Pages: 38
Order Number: R41920
Price: $29.95

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American Jihadist Terrorism: Combating a Complex Threat

Jerome P. Bjelopera
Specialist in Organized Crime and Terrorism

From May 2009 through October 2011, arrests were made for 32 “homegrown,” jihadist-inspired terrorist plots by American citizens or legal permanent residents of the United States. Two of these resulted in attacks—U.S. Army Major Nidal Hasan’s alleged assault at Fort Hood in Texas and Abdulhakim Muhammed’s shooting at the U.S. Army-Navy Career Center in Little Rock, AR—and produced 14 deaths. By comparison, in more than seven years from the September 11, 2001, terrorist strikes (9/11) through April 2009, there were 21 such plots. Two resulted in attacks, and no more than six plots occurred in a single year (2006). The apparent spike in such activity from May 2009 to October 2011 suggests that at least some Americans—even if a tiny minority—continue to be susceptible to ideologies supporting a violent form of jihad.

This report describes homegrown violent jihadists and the plots and attacks that have occurred since 9/11. For this report, “homegrown” and “domestic” are terms that describe terrorist activity or plots perpetrated within the United States or abroad by American citizens, legal permanent residents, or visitors radicalized largely within the United States. The term “jihadist” describes radicalized individuals using Islam as an ideological and/or religious justification for their belief in the establishment of a global caliphate, or jurisdiction governed by a Muslim civil and religious leader known as a caliph. The term “violent jihadist” characterizes jihadists who have made the jump to illegally supporting, plotting, or directly engaging in violent terrorist activity.

The report also discusses the radicalization process and the forces driving violent extremist activity. It analyzes post-9/11 domestic jihadist terrorism and describes law enforcement and intelligence efforts to combat terrorism and the challenges associated with those efforts. It also outlines actions underway to build trust and partnership between community groups and government agencies and the tensions that may occur between law enforcement and engagement activities. Appendix A provides details about each of the post-9/11 homegrown jihadist terrorist plots and attacks. Finally, the report offers policy considerations for Congress.

There is an “executive summary” at the beginning that summarizes the report’s findings, observations, and policy considerations for Congress.

Date of Report: November 1
5, 2011
Number of Pages:
Order Number: R4
Price: $29.95

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Wednesday, November 23, 2011

Gun Control Legislation

William J. Krouse
Specialist in Domestic Security and Crime Policy

Congress has debated the efficacy and constitutionality of federal regulation of firearms and ammunition, with strong advocates arguing for and against greater gun control. Since March 2011, much of the gun control debate in the 112th Congress has swirled around allegations that the Department of Justice (DOJ) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) mishandled a Phoenix, AZ-based gun trafficking investigation known as “Operation Fast and Furious.” Senator Charles Grassley, ranking minority Member on the Committee on the Judiciary, and Representative Darrell Issa, Chairman of the Committee on Oversight and Government Reform, have issued two joint staff reports on Operation Fast and Furious and the House committee has held three related hearings. On November 1, 2011, a high-ranking DOJ official testified before the Senate Judiciary’s Crime and Terrorism Subcommittee that he had identified “gun walking” as a potentially risk laden investigative technique in April 2010 in connection with another ATF investigation, Operation Wide Receiver, but failed to inform the Attorney General about the potential risks. On November 8, 2011, the Senate Committee on the Judiciary held a DOJ oversight hearing, and Attorney General Eric Holder fielded questions about Operation Fast and Furious. On November 18, 2011, the President signed the FY2012 Minibus Appropriations Act (H.R. 2112) into law. This act includes a provision that reflects a Senate-adopted amendment that would prevent the expenditure of any funding provided under it to be used by a federal law enforcement officer to facilitate the transfer of an operable firearm to a person known or suspected to be connected with a drug cartel without that firearm being continuously monitored or controlled. The act does not include language adopted during House committee markup that would have prohibited ATF from collecting multiple rifle sales reports in Southwest border states.

On November 16, 2011, the House passed a bill (H.R. 822) that would establish a greater degree of reciprocity between states that issue concealed carry permits for handguns to civilians, than currently exists under state law. On October 11, 2011, the House passed a Veterans’ Benefits Act (H.R. 2349) that would prohibit the Department of Veterans’ Affairs from determining a beneficiary to be mentally incompetent for the purposes of gun control, unless such a determination were made by a judge, magistrate, or other judicial authority based upon a finding that the beneficiary posed a danger to himself or others. In May 2011, firearms-related amendments to bills reauthorizing the USA PATRIOT Act were considered (H.R. 1800, S. 1038, and S. 990), but they were not included in the enacted legislation (P.L. 112-14).

The tragic shootings in Tucson, AZ, on January 8, 2011, in which six people were killed and 13 wounded, including Representative Gabrielle Giffords, have generated attention in the 112th Congress. Several Members introduced proposals that arguably address issues related to the shooter’s mental illness and drug use (see S. 436) and his use of large capacity ammunition feeding devices (LCAFDs) (see H.R. 308 and S. 32), as well as a proposal to ban firearms within the proximity of certain high-level federal officials (see H.R. 367 and H.R. 496).

This report concludes with discussion of other salient and recurring gun control issues that have generated past congressional interest. Those issues include (1) screening firearms background check applicants against terrorist watch lists, (2) reforming the regulation of federally licensed gun dealers, (3) requiring background checks for private firearms transfers at gun shows, (4) more-strictly regulating certain firearms previously defined in statute as “semiautomatic assault weapons,” and (5) banning or requiring the registration of certain long-range .50 caliber rifles, which are commonly referred to as “sniper” rifles. To set these and other emerging issues in context, this report provides basic firearms-related statistics, an overview of federal firearms law, and a summary of legislative action in the 111th Congress.

Date of Report: November 18, 2011
Number of Pages: 79
Order Number: RL32842
Price: $29.95

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The Unified Command Plan and Combatant Commands: Background and Issues for Congress

Andrew Feickert
Specialist in Military Ground Forces

The Unified Command Plan (UCP) and associated Combatant Commands (COCOMs) provide operational instructions and command and control to the Armed Forces and have a significant impact on how they are organized, trained, and resourced—areas over which Congress has constitutional authority. The UCP is a classified executive branch document prepared by the Chairman of the Joint Chiefs of Staff (CJCS) and reviewed and updated every two years that assigns missions; planning, training, and operational responsibilities; and geographic areas of responsibilities to COCOMs. Functional COCOMs operate world-wide across geographic boundaries and provide unique capabilities to geographic combatant commands and the Services while Geographic COCOMs operate in clearly delineated areas of operation and have a distinctive regional military focus. There are currently nine COCOMs:

          USSOCOM: U.S. Special Operations Command, MacDill Air Force Base, FL. 
          USSTRATCOM: U.S. Strategic Command, Offutt Air Force Base, NE. 
          USTRANSCOM: U.S. Transportation Command, Scott Air Force Base, IL. 
          USAFRICOM: U.S. Africa Command, Kelley Barracks, Stuttgart, Germany. 
          USCENTCOM: U.S. Central Command, MacDill Air Force Base, FL. 
          USEUCOM: U.S. European Command, Patch Barracks, Stuttgart, Germany. 
          USNORTHCOM: U.S. Northern Command, Peterson Air Force Base, CO. 
          USPACOM: U.S. Pacific Command, Camp H.M. Smith, HI. 
          USSOUTHCOM: U.S. Southern Command, Miami, FL. 

This report provides information on the history, mission, and operational considerations for each of these organizations as well as a brief discussion of current issues associated with the UCP and these commands.

The origins of the UCP and COCOMs are rooted in World War II. After the war, U.S. leaders, taking advantage of the lessons learned in both theaters, initiated a series of legislative changes that resulted in the current UCP process and COCOM construct.

The UCP and COCOMs are covered under Title 10 - Armed Forces; Subtitle A - General Military Law; Part I–Organization and General Military Powers; Chapter 6–Combatant Commands. These provisions detail the responsibilities and authorities of COCOMs as well as legal requirements related to the UCP.

A potential issue for Congress is whether there is a need for greater interagency involvement in the UCP development process. Another possible area for congressional concern is if Geographical COCOMs have made U.S. foreign policy “too militarized.” Some have also suggested there might be a need for separate COCOMs apart from the current nine to better address emerging regional and ethnic alignments as well as emerging threats such as cyber warfare. Finally, if Congress believes the current COCOM construct does not meet contemporary or future security requirements, there are proposals for alternative organizational structures that might prove more effective.

Date of Report: November
7, 2011
Number of Pages:
Order Number: R
Price: $29.95

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