Strengthening of certification requirements relating to the transfer or release of detainees at United States Naval Station, Guantanamo Bay, Cuba

(a)

Certification requirement generally

Subsection (a) of section 1034 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 969; 10 U.S.C. 801 note) is amended— (1)in the subsection heading, by striking

Prior

; and (2)by striking paragraph (1) and inserting the following new paragraph (1):

(1)

In general

Except as provided in paragraph (2), no amount authorized to be appropriated or otherwise made available for the Department of Defense or any other department, agency, or element of the United States Government may be used after the date of the enactment of the Protections Against Terrorist Transfer Act of 2016 to transfer, release, or assist in the transfer or release of any individual detained at Guantanamo to the custody or control of any foreign country or other foreign entity unless the Secretary of Defense certifies to the appropriate committees of Congress that the individual no longer poses a continuing threat to the security of the United States, its citizens, and its interests as described in subsection (b). The certification with respect to an individual shall be submitted not later than 30 days after the date on which the Secretary makes the determination that the individual no longer poses a continuing threat to the security of the United States, its citizens, and its interests.

(b)

Certification elements

Subsection (b) of such section is amended— (1)by redesignating paragraphs (1) through (4) as paragraphs (2) through (5), respectively; (2)by inserting before paragraph (2), as redesignated by paragraph (1) of this subsection, the following new paragraph (1):

(1)the individual to be transferred or released no longer poses a continuing threat to the security of the United States, its citizens, and its interests;

;

(3)in paragraph (2), as so redesignated, by inserting or release after transfer; (4)by inserting or released after transferred each place it appears; and (5)in subparagraph (B) of paragraph (4), as so redesignated, by striking paragraph (2)(C) and inserting paragraph (3)(C). (c)

Basis for certification

Such section is further amended— (1)by redesignating subsections (c) through (f) as subsections (d) through (g), respectively; and (2)by inserting after subsection (b) the following new subsection (c):

(c)

Basis for certification

(1)

In general

In making the certification described in subsection (b) with respect to an individual, the Secretary shall take into account and respond to each of the following: (A)The extent to which the individual was involved in or facilitated terrorist activities, including the extent to which the individual may have planned or participated in specific terrorist attacks. (B)The conduct of the individual when acting as part of, or substantially supporting, Taliban or al Qaeda forces, or the Islamic State of Iraq and the Levant (ISIL) or any other terrorist organization or forces, that are engaged in hostilities against the United States or its coalition partners. (C)The level of knowledge, skills, or training possessed by the individual that has been or could be used for terrorist purposes, including the following: (i)Training or ability to plan, lead, finance, organize, or execute acts of terrorism. (ii)Training or ability to facilitate the movement or training of terrorists. (iii)Any specialized training or operational experience, including training in paramilitary tactics, explosives, or weapons of mass casualty. (D)The nature and extent of the ties of the individual with individual terrorists, terrorist organizations, terrorist support networks, or other extremists. (E)Information pertaining to the likelihood that the individual intends to or is likely to engage in terrorist activities upon transfer or release. (F)Information pertaining to the likelihood that the individual will reestablish ties after transfer or release with terrorists, terrorist organizations, terrorist support networks, or other extremists that are engaged in hostilities against the United States or its coalition partners, and information pertaining to whether the group of which the individual was a part of at the time of capture is now defunct. (G)Information pertaining to the destination country, including, specifically, the following: (i)The presence of terrorist groups, instability, or other factors in that country that could negatively influence the potential of the individual to engage in terrorist activities upon transfer or release. (ii)The accessibility and likelihood the individual may contact or seek support from family, tribal, or known associates. (iii)The likelihood of rehabilitation or support for the individual by the receiving government or entity. (iv)The availability and credibility of measures by the receiving government or entity to mitigate substantially the assessed threat posed by the individual, including information regarding past detainee transfers to that country or entity, if applicable. (H)The likelihood the individual will be subject to trial by military commission, or any other law enforcement interest in the individual. (I)The conduct of the individual in the custody of the Department of Defense, including contact with any individual who is not a detainee, behavior, habits, traits, rehabilitation efforts, and whether the individual was considered a danger to other detainees or other individuals. (J)The physical and psychological condition of the individual, as assessed by a licensed professional. (K)Any other relevant factors bearing on the continuing threat to the security of the United States, its citizens, and its interests posed by the transfer or release of the individual. (L)Any other relevant information bearing on the national security and foreign policy interests of the United States or the interests of justice. (2)

Recommendations

In determining whether to make a certification described in subsection (b) on an individual, the Secretary shall take into account, and include with the certification, the recommendations and military value analyses of the following: (A)The Chairman of the Joint Chiefs of Staff. (B)The Chiefs of Staff of the Armed Forces, with respect to the effects of the transfer or release on military personnel with a residence for their permanent duty station in the geographic area, or forward deployed forces, in the foreign country concerned. (C)The commander of the geographic combatant command having the foreign country or entity to which the individual will be transferred or released within its area of operational responsibility. (D)The Commander of the United States Southern Command. (3)

Provision to individuals

Each individual covered by a certification described in subsection (b) shall be provided an unclassified written summary of the certification, in a language the individual understands, not earlier than 30 days after the Secretary submits the certification to the appropriate committees of Congress pursuant to subsection (a). The summary shall also be provided to the personal representative and private counsel of the individual.

(d)

Continuing threat defined

Subsection (g) of such section, as redesignated by subsection (c)(1) of this section, is amended by adding at the end the following new paragraph:

(5)The term continuing threat, means a threat to the security of the United States that may require any type of security measure by the United States or any other foreign country or other foreign entity associated with the transfer or release of a detainee.

(e)

Additional conforming amendments

Paragraph (3) of subsection (f) of such section, as so redesignated, is amended— (1)by striking subsection (b)(2)(C) and inserting subsection (b)(3)(C); and (2)by striking subsection (b)(3) and inserting subsection (b)(4). (f)

Clerical amendment

The heading of such section is amended to read as follows:

1034.

Certification requirements relating to the transfer or release of detainees at United States Naval Station, Guantanamo Bay, Cuba