The combined House/Senate agreement on the 2014 National Defense Authorization Act (NDAA) has two key terrorist-detainee-related provisions worth highlighting.
Section 1039 requires the Attorney General, in consultation with the Secretary of Defense, to prepare a report on the “legal rights, if any” for any Gitmo detainee transferred to the United States. Specifically, Section 1039 requires the report to include any rights that those detainees “may become eligible” for by “reason of such transfer.”
The report requires a number of assessments as to whether transferred detainees could become eligible for: (1) “relief from removal from the United States” as a result of the Convention Against Torture; (2) release from immigration detention, including pursuant to the Supreme Court decision Zadvydas v. Davis; (3) asylum or withholding of removal; or (4) “any additional constitutional right.”
Section 1039 also requires an explanation of those newly acquired rights and an “analysis of the extent to which legislation or other steps could address any legal rights” that might accrue to the detainee transferred into the United States.
This is the first time, to my knowledge, that Congress has formally demanded this information via legislation, and it comes at a critical time as the Administration has placed a renewed emphasis on closing Gitmo. In addition to appointing two new distinguished envoys to assist in the process of closing Gitmo, the Administration recently transferred two Gitmo detainees to Algeria over their attorneys’ objections.
Noticeably absent from Section 1039 is a specific requirement to include an assessment of the most likely litigation that will occur if/when those detainees are transferred to the U.S. and the likely outcome of that litigation.
As one might imagine, these assessments already exist in one form or another within the executive branch. And they existed in the Bush Administration as well. Congress did not require all previous assessments from this or the previous Administration, which naturally differ in key respects.
At the same time, Section 1038 requires the Secretaries of State and Defense to submit a report on the “capability of the government of Yemen to detain, rehabilitate, and prosecute individuals detained at Guantanamo who are transferred to Yemen.” Recall that the three major populations of detainees at Guantanamo were from Saudi Arabia, Afghanistan, and Yemen. The previous Administration crafted arrangements with the former two governments to transfer most of their Guantanamo-housed countrymen back home so long as they went through a rehabilitation program. It is not hard to see that the current Administration is now setting the table to push for a similar program in Yemen.
When one looks at these two provisions together, along with the uptick in transfers from Guantanamo, one can start to see the outlines of the game plan on how this Administration is thinking about closing Guantanamo.