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 of 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. S. 1253, as reported out of the Senate Armed Services Committee, 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 make permanent the current funding restrictions that relate to Guantanamo detainee transfers to foreign countries. The Senate bill, however, would permit the transfer of detainees into the United States for trial or perhaps for other purposes.

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. Although the Administration has not issued a similarly detailed statement regarding S. 1253, it seems likely that many of the Senate bill’s detainee provisions will evoke similar objections.

This report offers a brief background of the salient issues raised by the bills 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: July 18, 2011
Number of Pages: 35
Order Number: R41920
Price: $29.95

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