Saturday, December 03, 2011

Sen. Carl Levin: Summary of Detainee Provisions in the Senate-passed Defense Authorization Act

Posted Friday, Dec. 2, 2011, as a press release on Sen. Carl Levin's Web site*

WASHINGTON -- Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, issued a summary today (Dec. 2, 2011) of detainee provisions approved Thursday by the Senate (part of Senate Bill 1867, National Defense Authorization Act):

"Because of the many questions that have been raised relating to the detainee provisions in the defense authorization bill, I felt it was important to provide this summary of the language approved by the Senate," Levin said. "I hope it will be a useful reference for those who are interested in this important issue."

Section 1031: Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force.
  • Section 1031 reaffirms the military’s existing authority to detain individuals captured in the course of hostilities in accordance with the law of war. The authority extends to any person who: (1) planned, authorized, committed, or aided the terrorist attacks on September 11, 2001; or (2) was part of or substantially supported al Qaeda, the Taliban, or associated forces in hostilities against the United States. This provision codifies detention authority that has been adopted by two Administrations, has been upheld in the courts, and has a centuries-long foundation in the law of war. An amendment adopted on the Senate floor by a 99-1 vote confirms that nothing in the provision "shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."
Section 1032: Requirement for Military Custody.
  • Section 1032 provides that a narrowly-defined group of people -- foreign al Qaeda terrorists who participate in planning or conducting attacks against us -- shall be held in military custody. The provision is subject to waiver by the executive branch. The provision specifically exempts United States citizens. It also does not apply to lawful resident aliens inside the United States, except to the extent permitted by the Constitution. The procedures for determining who is covered by the provision are left up to the Executive Branch to establish. Those procedures are to include procedures for determining how and when persons determined to be subject to military custody would be transferred from civilian law enforcement to military officials, and to ensure that such determinations do not interfere with ongoing intelligence, surveillance, or interrogations. The provision expressly authorizes the transfer of detainees for trial in civilian courts. An amendment to strip out this transfer authority (which would have prohibited civilian trials for detainees) was defeated in the Senate Armed Services Committee by a bipartisan vote of 19-7.
Section 1033: Requirements for Certifications Relating to the Transfer of Detainees at United States Naval Station, Guantanamo Bay, Cuba, to Foreign Countries and other Foreign Entities.
  • Section 1033 continues for another year conditions on the transfer of GITMO detainees to foreign countries which have a track record of being unable to prevent released detainees from returning to battle against us. The provision continues the requirement that the Secretary of Defense certify that appropriate steps have been taken to reduce the risk of renewed terrorist activities by detainees who are released. Section 1033 is less restrictive than provisions included in previously enacted legislation signed by President Obama, because it includes a new national security waiver.
Section 1034: Prohibition on Use of Funds to Construct or Modify Facilities in the United States to House Detainees Transferred from United States Naval Station, Guantanamo Bay, Cuba.
  • Section 1034 continues for another year the limitation that has been included in past authorization and appropriations Acts, precluding the use of DOD funds to build facilities inside the United States to house Guantanamo detainees. This provision does not require the closure of Guantanamo, it applies only to DOD funds, and it does not prohibit the use of Department of Justice funds that might be needed in connection with the transfer of a Guantanamo detainee for trial.
Section 1035: Procedures for Periodic Detention Review of Individuals Detained at United States Naval Station, Guantanamo Bay, Cuba.
  • Section 1035 requires DOD to issue procedures implementing the Executive Order issued by the President earlier this year addressing ambiguities in the process for periodic status reviews established for Guantanamo detainees. The periodic reviews are to determine whether a detainee no longer represents a continuing threat to the security of the United States and therefore can be released from detention.
Section 1036: Procedures for Status Determinations.
  • Section 1036 requires DOD to establish procedures for determining the status of detainees -- i.e., whether or not we have legal authority to detain them. These procedures include, for the first time, a military judge and a military lawyer for any detainee held in long-term military custody.
Section 1037: Clarification of Right to Plead Guilty in Trial of Capital Offense by Military Commission.
  • Section 1037 clarifies the procedures for guilty pleas in trials by military commissions. The provision requires a separate trial on the penalty with a unanimous verdict needed to impose the death penalty. The Supreme Court has held that defendants in the federal courts have a right to plead guilty in capital cases. The omission of this provision would leave defendants in military commission cases without a similar right.
* Editor's Notes:

See also the Dec. 1, 2011, post on Sen. Levin's Web site: "Levin Floor Statement on Compromise Detainee Language in NDAA"

On Dec. 2, 2011, Sen. Levin also posted this press release: "Levin Announces Michigan-Related Projects in National Defense Authorization Act for FY 2012."

On Nov. 30, 2011, before the Senate passed this bill, an op-ed article by William Rivers Pitt on Truthout is critical of the detainee language in the bill and cites strong objections by Amnesty International, whose members call for President Obama to veto the bill if it comes to his desk. See "A Gut-Check Moment for Mr. Obama."

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