Yesterday, the Senate voted on two amendments to the National Defense Authorization Act (NDAA) regarding the closure of the Guantanamo Bay Detention Facility.
The current text removes some of the largest burdens to transferring detainees and lifts the ban on transferring prisoners to the United States for trial or medical treatment.
The first amendment was offered by Senator Kelly Ayotte (R-NH), an authoritarian hawk (Is that redundant?). Ayotte's amendment would continue the existing burdensome NDAA certification regime for transfers to foreign nations and would entirely ban any transfers of Guantanamo detainees to Yemen. It would also prohibit the expenditure of defense funds for the purpose of trying or detaining Guantanamo detainees in the States.
The Ayotte amendment failed 43-55, not even mustering 50 votes. The vote was largely party line, with, of course, a few exceptions.
Three Republicans--John McCain (R-AZ), Jeff Flake (R-AZ), and Rand Paul (R-KY) joined the Democratic caucus in voting against it.
Three Democrats--Joe Donnelly (D-IN), Kay Hagan (D-NC), and Mark Pryor (D-AR)--joined the Republicans in voting for it.
The second amendment was offered by Sen. Carl Levin (D-MI) and Sen. John McCain (R-AZ). Diane Feinstein (D-CA) also joined as a co-sponsor. Levin described his amendment as a side-by-side amendment to the language in the existing bill. The McCain-Levin amendment repeats part of section 1033 to the NDAA verbatim but adds stipulations on the following points.
The status of detainees while in the United States
(d) Status while in the United States. A detainee who is transferred to the United States under this sectionProhibition of release into the United States(1) shall not be permitted to apply for asylum under section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) or be eligible to apply for admission into the United States;
(2) shall be considered to be paroled into the United States temporarily pursuant to section 212 (d)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182 (d)(5)(A)); and
(3) shall not, as a result of such transfer, have a change in designation as an unprivileged enemy belligerent eligible for detention pursuant to the Authorization for Use of Military Force, as determined in accordance with applicable laws and regulations.
(e) Limitation on Transfer or Release of Detainees Transferred to the United States. An individual who is transferred to the United States under this section may not be released within the United States and may only be transferred or released in accordance with the procedures under section 1031.
Limitations on judicial review for detainees held in the United States
(f) Limitations on Judicial ReviewA detailed plan for closing the Guantanamo Bay detention facility
(1) Limitations – Except as provided for in paragraph (2), no court, justice, or judge shall have jurisdiction to hear or consider any action against the United States or its agents relating to any aspect of the detention, transfer, treatment, or conditions of confinement of a detainee described in subsection (a) who is held by the Armed Forces of the United States.(2) Exception. A detainee who is transferred to the United States under this section shall not be deprived of the right to challenge his designation as an unprivileged enemy belligerent by filing a writ of habeas corpus as provided by the Supreme Court in Hamdan v. Humsfeld (548 U.S. 557 (2006)) and Boumedine v. Bush (553 U.S. 723 (2008)).
(3) No Cause of Action in Decision Not to Transfer. A decision not to transfer a detainee to the United States under this section shall not give rise to a judicial cause of action.
(1) IN GENERAL. Subsections (b), (c), (c1), (e), and (f) shall take effect on the date that is 60 days after the date on which the Secretary of Defense submits to the appropriate committees of Congress a detailed plan to close the detention facility at United States Naval Station, Guantanamo Bay, Cuba.(2) ELEMENTS. The report required by paragraph (1) shall contain the following:
(A) A case-by-case determination made for each individual detained at Guantanamo of whether such individual is intended to be transferred to a foreign country, transferred to the United States for the purpose of civilian or military trial, or transferred to the United States or another country for continued detention under the law of armed conflict.
(B) The specific facility or facilities that are intended to be used, or modified to be used, to hold individuals inside the United States for the purpose of trial, for detention in the aftermath of conviction, or for continued detention under the law of armed conflict.
(C) The estimated costs associated with the detention inside the United States of individuals detained at Guantanamo.
(D) A description of any additional actions that should be taken consistent with subsections (d), (e), and (f) to hold detainees inside the United States.
(E) A detailed description of the assessment, made in consultation with the Secretary of State and the Director of National Intelligence, of the actions that would be taken prior to the transfer of an individual at Guantanamo that would substantially mitigate the risk of such individual engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States persons or interests.
(F) What additional authorities, if any, may be necessary to detain an individual detained at Guantanamo inside the United States as an unprivileged enemy belligerent pursuant to the Authorization for Use of Military Force (Public Law 107-40), pending the end of hostilities or a future determination by the Secretary of Defense that such individual no longer poses a threat to the United States or United States persons or interests.
(3) FORM. The report required by paragraph (1) shall be submitted in unclassified form, but may include a classified annex.
The continuation of the standing prohibition of the use of funds for transferring detainees until the above condition is met
(H) Interim Prohibition. The prohibition in section 1022 of the Fiscal Year 2013 National Defense Authorization Act (Public Law 112-239; 126 Stat. 1911) shall apply to funds appropriated or otherwise made available for fiscal year 2014 for the Department of Defense from the date of the enactment of this Act until the effective date specific in subsection (g).The vote on this amendment was far more interesting than the last one, in my humble opinion. The amendment failed to reach the 60 vote threshold often required to amend legislation (in order to avoid "poison pills"). There were 52 YEA votes and 46 NAY votes.
There were two Republican supporters: Susan Collins (R-ME) and co-sponsor John McCain (R-AZ).
5 members of the Democratic caucus voted against the amendment. One--Mark Pryor (D-AR)--likely voted against it for the same reason as his Republican colleagues did. However, four of the most liberal senators voted against it as well: Pat Leahy (D-VT), Bernie Sanders (I-VT), Elizabeth Warren (D-MA), and Ron Wyden (D-OR).
I would guess that their vote against it could have to do with the fact that it, like the president's past initiatives, continues the practice of indefinite detention, but now in the United States itself, as civil libertarians like Glenn Greenwald and the ACLU have often pointed out. The demand for a detailed plan might be seen as a new, unneeded burden as well. Per Bernie Sanders's daily news update, civil liberties groups opposed the amendment. Wyden and Sanders are two of the most civil liberties conscious senators, so I would assume they were well-clued in to the opinions of said groups.
Pat Leahy, for instance, is a strong supporter of closing Gitmo and recently spoke of the importance of closing Gitmo to national security and the rule of law:
Among the most important are provisions that would help make it possible to close the detention facility at Guantanamo. As long as Guantanamo remains open, it will serve as a recruiting tool for terrorists, needlessly siphon away critical national security dollars, and discredit America’s historic role as a global leader that defends human rights and the rule of law.As the administration's effort to close GITMO proceeds, it is, however, important to remember that "transferring" prisoners is not the same as "releasing" them, and the U.S. still intends to keep many individuals in indefinite detention against whom they have no formal charges.Currently, 164 individuals remain detained at Guantanamo. Most of them have been there for more than a decade. Of those, more than half – 84 – have been cleared for transfer to another country, but efforts to do so have stalled, largely due to irrationally onerous restrictions imposed by Congress. These unnecessary and counterproductive hurdles have made it all but impossible to close Guantanamo, and they have severely damaged our credibility when we criticize other governments for their use of indefinite detention.
Provisions in the 2014 NDAA would ease these restrictions. While incremental, they would streamline procedures for transferring detainees to other countries and, where appropriate, allow transfers to the United States for trial or detention. These are common sense changes and they are necessary if we are serious about putting an end to this ugly chapter in our history.
There are sure to be some who will come to the floor of this Chamber over the next several days to tell us how dangerous and irresponsible it would be to close Guantanamo. But the facts are simply not with them. The bottom line is that Guantanamo hurts us; it does not help us.
Guantanamo does not make us safer. We are all committed to protecting the national security of the United States and of the American people, but Guantanamo undermines those efforts. Our national security and military leaders have concluded that keeping Guantanamo open is itself a risk to our national security. The facility continues to serve as a recruitment tool for terrorists and weakens our alliances with key international partners.
Guantanamo does not hold terrorists accountable. The military commission system for trying these detainees does not work. Federal courts have recently overturned two Guantanamo convictions in opinions that will prevent the military commission prosecutors from bringing conspiracy and material support charges against detainees – a fact acknowledged by the lead military prosecutor at Guantanamo.
These charges can be pursued, however, in Federal courts where our prosecutors have a strong track record of obtaining long prison sentences against those who seek to do us harm. Since 9/11, Federal courts have convicted more than 500 terrorism-related suspects who remain securely behind bars.
Guantanamo also diverts scarce resources from critical national security efforts. At a time when the Department of Defense faces deep and ongoing cuts, operating the Guantanamo detention facility costs about $450 million a year to house 164 individuals. That is about $2.7 million per detainee, every year, and many of them have been there for a decade or more.
By comparison, it costs less than $80,000 per year to hold a prisoner at America’s most secure Federal prisons, which have housed hundreds of convicted terrorists for decades and never had an escape. And, despite the fact that the Pentagon rejected a request earlier this year to spend hundreds of millions of dollars to overhaul the aging compound, House Republicans included this spending in their version of the National Defense Authorization Act.
The money squandered on this long-failed experiment would be better served helping disabled veterans returning home from war and soldiers preparing to defend our Nation in the future. This waste must end.
Guantanamo has undermined our reputation as a champion of human rights. Countries that respect the rule of law and human rights do not lock away prisoners indefinitely without charge or trial. We condemn authoritarian states that carry out such practices and we should not tolerate them for even our worst enemies.
The status quo at Guantanamo is untenable and I appreciate President Obama’s renewed vow to shutter this unnecessary, expensive, and counterproductive prison. But in order for the President’s plan to be successful, Congress must do its part.
We must pass the common sense provisions in the National Defense Authorization Act. I thank Senator Levin for his leadership on this issue as Chairman of the Senate Armed Services Committee and I stand solidly with Senators Feinstein, Durbin and others who have long recognized that it is in our national security interest to close Guantanamo. It is the fiscally responsible thing to do, it is the morally responsible thing to do, and, above all, it will make our country safer.
For over a decade, the indefinite detention of prisoners at Guantanamo has contradicted our most basic principles of justice, degraded our international standing, and harmed our national security. It is shameful that we are still debating this issue. The status quo is unacceptable.