Detainee Provisions in the National Defense Authorization Bills

Jennifer K. Elsea
Legislative Attorney

Michael John Garcia
Legislative Attorney

The 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.

In June, the Senate Armed Services Committee reported its initial version of the bill, S. 1253, which included many provisions similar to the House bill, but also included a provision requiring the military detention of certain terrorist suspects. Consideration of the bill was delayed after the the White House and the chairs of other Senate committees objected to some of the provisions. The Senate Armed Services Committee reported a second version of the authorization bill, 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. On December 1, 2011, the Senate passed S. 1867. During floor debate, significant attention centered on the extent to which the bill and existing law permit the military detention of U.S. citizens believed to be enemy belligerents. A single amendment was made to the detainee provisions to clarify that the bill’s affirmation of detention authority under the AUMF was not intended to affect any existing authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States. The Senate subsequently passed H.R. 1540, with the Senate bill’s language inserted in place of the original provisions. Differences between the House- and Senate-passed versions of the bill will be considered in conference.

The White House has been critical of aspects of each bill, and has threatened to veto any legislation “that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation.” In particular, the Administration has expressed strong opposition to any provision which mandates the military detention of certain categories of persons, limits executive discretion as to the appropriate forum to prosecute terrorist suspects, or constrains its ability to transfer detainees from U.S. custody.

This report offers a brief background of the salient issues raised by 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’ approaches with respect to the major issues they address.


Date of Report: December 8, 2011
Number of Pages: 40
Order Number: R41920
Price: $29.95

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