[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 165 Introduced in Senate (IS)]

114th CONGRESS
  1st Session
                                 S. 165

To extend and enhance prohibitions and limitations with respect to the 
  transfer or release of individuals detained at United States Naval 
         Station, Guantanamo Bay, Cuba, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 13, 2015

    Ms. Ayotte (for herself, Mr. Graham, Mr. Burr, and Mr. McCain) 
introduced the following bill; which was read twice and referred to the 
                      Committee on Armed Services

_______________________________________________________________________

                                 A BILL


 
To extend and enhance prohibitions and limitations with respect to the 
  transfer or release of individuals detained at United States Naval 
         Station, Guantanamo Bay, Cuba, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Detaining Terrorists to Protect 
America Act of 2015''.

SEC. 2. 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.

    (a) Prohibition.--No amounts appropriated or otherwise available 
for any department or agency of the United States Government may be 
used, during the period beginning on the date of the enactment of this 
Act and ending on the date that is two years after the date of the 
enactment of this Act, to construct or modify any facility in the 
United States, its territories, or possessions to house an individual 
detained at Guantanamo for the purpose of detention or imprisonment in 
the custody or control of the United States Government unless 
authorized by Congress.
    (b) Exception.--The prohibition in subsection (a) shall not apply 
to any modification of facilities at United States Naval Station, 
Guantanamo Bay, Cuba.
    (c) Individual Detained at Guantanamo Defined.--In this section, 
the term ``individual detained at Guantanamo'' means any individual 
located at United States Naval Station, Guantanamo Bay, Cuba, as of 
October 1, 2009, who--
            (1) is not a citizen of the United States or a member of 
        the Armed Forces of the United States; and
            (2) is--
                    (A) in the custody or under the control of the 
                Department of Defense; or
                    (B) otherwise under detention at United States 
                Naval Station, Guantanamo Bay, Cuba.
    (d) Repeal of Superseded Prohibition.--Section 1033 of the National 
Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66; 127 
Stat. 850), as amended by section 1032 of the Carl Levin and Howard P. 
``Buck'' McKeon National Defense Authorization Act for Fiscal Year 2015 
(Public Law 113-291), is repealed.

SEC. 3. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO THE 
              UNITED STATES OF INDIVIDUALS DETAINED AT UNITED STATES 
              NAVAL STATION, GUANTANAMO BAY, CUBA.

    (a) Prohibition.--No amounts appropriated or otherwise available 
for any department or agency of the United States Government may be 
used, during the period beginning on the date of the enactment of this 
Act and ending on the date that is two years after the date of the 
enactment of this Act, to transfer, release, or assist in the transfer 
or release to or within the United States, its territories, or 
possessions of Khalid Sheikh Mohammed or any other detainee who--
            (1) is not a United States citizen or a member of the Armed 
        Forces of the United States; and
            (2) was held on January 20, 2009, at United States Naval 
        Station, Guantanamo Bay, Cuba, by the Department of Defense.
    (b) Repeal of Superseded Prohibition.--Section 1034 of the National 
Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66; 127 
Stat. 851), as amended by section 1033 of the Carl Levin and Howard P. 
``Buck'' McKeon National Defense Authorization Act for Fiscal Year 2015 
(Public Law 113-291), is repealed.

SEC. 4. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE ABROAD OF 
              INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, 
              GUANTANAMO BAY, CUBA, DETERMINED OR ASSESSED TO BE HIGH-
              RISK OR MEDIUM-RISK THREATS.

    (a) Prohibition.--
            (1) In general.--Notwithstanding any other provision of 
        law, no amounts appropriated or otherwise available for any 
        department or agency of the United States Government may be 
        used, during the period beginning on the date of the enactment 
        of this Act and ending on the date that is two years after the 
        date of the enactment of this Act, to transfer, release, or 
        assist in the transfer or release of any individual described 
        in paragraph (2) to the custody or control of the individual's 
        country of origin, any other foreign country, or any other 
        foreign entity.
            (2) Covered individuals.--An individual described in this 
        paragraph is any individual detained in the custody or under 
        the control of the Department of Defense at United States Naval 
        Station, Guantanamo Bay, Cuba, who is currently or ever has 
        been determined or assessed by Joint Task Force Guantanamo to 
        be a high-risk or medium-risk threat to the United States, its 
        interests, or its allies.
    (b) Exception.--Subsection (a) shall not apply to any action taken 
by the head of a department or agency of the United States Government 
to transfer, release, or assist in the transfer or release of any 
individual described in that subsection to effectuate an order 
affecting the disposition of the individual that is issued by a court 
or competent tribunal of the United States having lawful jurisdiction 
(which the Secretary shall notify the appropriate committees of 
Congress promptly after issuance).
    (c) Appropriate Committees of Congress Defined.--In this section, 
the term ``appropriate committees of Congress'' means--
            (1) the Committee on Armed Services, the Committee on 
        Appropriations, and the Select Committee on Intelligence of the 
        Senate; and
            (2) the Committee on Armed Services, the Committee on 
        Appropriations, and the Permanent Select Committee on 
        Intelligence of the House of Representatives.

SEC. 5. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO YEMEN OF 
              INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, 
              GUANTANAMO BAY, CUBA.

    Notwithstanding any other provision of law, no amounts appropriated 
or otherwise available for any department or agency of the United 
States Government may be used, during the period beginning on the date 
of the enactment of this Act and ending on the date that is two years 
after the date of the enactment of this Act, to transfer, release, or 
assist in the transfer or release of any individual detained in the 
custody or under the control of the Department of Defense at United 
States Naval Station, Guantanamo Bay, Cuba, to the custody or control 
of the Republic of Yemen or any entity within Yemen.

SEC. 6. REENACTMENT AND MODIFICATION OF CERTAIN PRIOR REQUIREMENTS FOR 
              CERTIFICATIONS RELATING TO TRANSFER OF DETAINEES AT 
              UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO 
              FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.

    (a) Certification Required Prior to Transfer.--
            (1) In general.--Except as provided in paragraph (3) and 
        subsection (d), the Secretary of Defense may not use any 
        amounts authorized to be appropriated or otherwise available to 
        the Department of Defense to transfer any individual detained 
        at Guantanamo to the custody or control of the individual's 
        country of origin, any other foreign country, or any other 
        foreign entity unless the Secretary submits to the appropriate 
        committees of Congress the certification described in 
        subsection (b) not later than 30 days before the transfer of 
        the individual.
            (2) Scope of requirement.--The requirement in paragraph (1) 
        applies to any authorized transfer or release of an individual 
        described in that paragraph after the date of the enactment of 
        this Act, including a transfer or release of such an individual 
        who is also described in paragraph (2) of section 4(a) after 
        the prohibition in section 4(a) ceases to be in effect.
            (3) Exception.--Paragraph (1) shall not apply to any action 
        taken by the Secretary to transfer any individual detained at 
        Guantanamo to effectuate an order affecting the disposition of 
        the individual that is issued by a court or competent tribunal 
        of the United States having lawful jurisdiction (which the 
        Secretary shall notify the appropriate committees of Congress 
        of promptly after issuance).
    (b) Certification.--A certification described in this subsection is 
a written certification made by the Secretary of Defense, with the 
concurrence of the Secretary of State and in consultation with the 
Director of National Intelligence, that--
            (1) the government of the foreign country or the recognized 
        leadership of the foreign entity to which the individual 
        detained at Guantanamo is to be transferred--
                    (A) is not a designated state sponsor of terrorism 
                or a designated foreign terrorist organization;
                    (B) maintains control over each detention facility 
                in which the individual is to be detained if the 
                individual is to be housed in a detention facility;
                    (C) is not, as of the date of the certification, 
                facing a threat that is likely to substantially affect 
                its ability to exercise control over the individual;
                    (D) has taken or agreed to take effective actions 
                to ensure that the individual cannot take action to 
                threaten the United States, its citizens, or its allies 
                in the future;
                    (E) has taken or agreed to take such actions as the 
                Secretary of Defense determines are necessary to ensure 
                that the individual cannot engage or reengage in any 
                terrorist activity; and
                    (F) has agreed to share with the United States any 
                information that--
                            (i) is related to the individual or any 
                        associates of the individual; and
                            (ii) could affect the security of the 
                        United States, its citizens, or its allies; and
            (2) includes an assessment, in classified or unclassified 
        form, of the capacity, willingness, and past practices (if 
        applicable) of the foreign country or entity in relation to the 
        Secretary's certifications.
    (c) Prohibition in Cases of Prior Confirmed Recidivism.--
            (1) Prohibition.--Except as provided in paragraph (2) and 
        subsection (d), the Secretary of Defense may not use any 
        amounts authorized to be appropriated or otherwise made 
        available to the Department of Defense to transfer any 
        individual detained at Guantanamo to the custody or control of 
        the individual's country of origin, any other foreign country, 
        or any other foreign entity if there is a confirmed case of any 
        individual who was detained at United States Naval Station, 
        Guantanamo Bay, Cuba, at any time after September 11, 2001, who 
        was transferred to such foreign country or entity and 
        subsequently engaged in any terrorist activity.
            (2) Exception.--Subject to subsection (e), paragraph (1) 
        shall not apply to any action taken by the Secretary to 
        transfer any individual detained at Guantanamo to effectuate an 
        order affecting the disposition of the individual that is 
        issued by a court or competent tribunal of the United States 
        having lawful jurisdiction (which the Secretary shall notify 
        the appropriate committees of Congress of promptly after 
        issuance).
    (d) National Security Waiver.--
            (1) In general.--Subject to subsection (e), the Secretary 
        of Defense may waive the applicability to a detainee transfer 
        of a certification requirement specified in subparagraph (D) or 
        (E) of subsection (b)(1) or the prohibition in subsection (c), 
        if the Secretary certifies the rest of the criteria required by 
        subsection (b) for transfers prohibited by subsection (c) and, 
        with the concurrence of the Secretary of State and in 
        consultation with the Director of National Intelligence, 
        determines that--
                    (A) alternative actions will be taken to address 
                the underlying purpose of the requirement or 
                requirements to be waived;
                    (B) in the case of a waiver of subparagraph (D) or 
                (E) of subsection (b)(1), it is not possible to certify 
                that the risks addressed in the paragraph to be waived 
                have been completely eliminated, but the actions to be 
                taken under subparagraph (A) will substantially 
                mitigate such risks with regard to the individual to be 
                transferred;
                    (C) in the case of a waiver of subsection (c), the 
                Secretary has considered any confirmed case in which an 
                individual who was transferred to the country 
                subsequently engaged in terrorist activity, and the 
                actions to be taken under subparagraph (A) will 
                substantially mitigate the risk of recidivism with 
                regard to the individual to be transferred; and
                    (D) the transfer is in the national security 
                interests of the United States.
            (2) Reports.--Whenever the Secretary makes a determination 
        under paragraph (1), the Secretary shall submit to the 
        appropriate committees of Congress, not later than 30 days 
        before the transfer of the individual concerned, the following:
                    (A) A copy of the determination and the waiver 
                concerned.
                    (B) A statement of the basis for the determination, 
                including--
                            (i) an explanation why the transfer is in 
                        the national security interests of the United 
                        States;
                            (ii) in the case of a waiver of paragraph 
                        (D) or (E) of subsection (b)(1), an explanation 
                        why it is not possible to certify that the 
                        risks addressed in the paragraph to be waived 
                        have been completely eliminated; and
                            (iii) a classified summary of--
                                    (I) the individual's record of 
                                cooperation while in the custody of or 
                                under the effective control of the 
                                Department of Defense; and
                                    (II) the agreements and mechanisms 
                                in place to provide for continuing 
                                cooperation.
                    (C) A summary of the alternative actions to be 
                taken to address the underlying purpose of, and to 
                mitigate the risks addressed in, the paragraph or 
                subsection to be waived.
                    (D) The assessment required by subsection (b)(2).
    (e) Coordination With Prohibition on Transfer to Yemen.--While the 
prohibition in section 5 is in effect, the exception in subsection 
(c)(2) and the waiver authority in subsection (d) shall not apply to 
authorize the transfer of an individual detained at Guantanamo to 
Yemen.
    (f) Record of Cooperation.--In assessing the risk that an 
individual detained at Guantanamo will engage in terrorist activity or 
other actions that could affect the security of the United States if 
released for the purpose of making a certification under subsection (b) 
or a waiver under subsection (d), the Secretary of Defense may give 
favorable consideration to any such individual--
            (1) who has substantially cooperated with United States 
        intelligence and law enforcement authorities, pursuant to a 
        pre-trial agreement, while in the custody of or under the 
        effective control of the Department of Defense; and
            (2) for whom agreements and effective mechanisms are in 
        place, to the extent relevant and necessary, to provide for 
        continued cooperation with United States intelligence and law 
        enforcement authorities.
    (g) Definitions.--In this section:
            (1) The term ``appropriate committees of Congress'' means--
                    (A) the Committee on Armed Services, the Committee 
                on Appropriations, and the Select Committee on 
                Intelligence of the Senate; and
                    (B) the Committee on Armed Services, the Committee 
                on Appropriations, and the Permanent Select Committee 
                on Intelligence of the House of Representatives.
            (2) The term ``individual detained at Guantanamo'' means 
        any individual located at United States Naval Station, 
        Guantanamo Bay, Cuba, as of October 1, 2009, who--
                    (A) is not a citizen of the United States or a 
                member of the Armed Forces of the United States; and
                    (B) is--
                            (i) in the custody or under the control of 
                        the Department of Defense; or
                            (ii) otherwise under detention at United 
                        States Naval Station, Guantanamo Bay, Cuba.
            (3) The term ``foreign terrorist organization'' means any 
        organization so designated by the Secretary of State under 
        section 219 of the Immigration and Nationality Act (8 U.S.C. 
        1189).
    (h) Repeal of Superseded Requirements and Limitations.--Section 
1035 of the National Defense Authorization Act for Fiscal Year 2014 
(Public Law 113-66; 127 Stat. 851; 10 U.S.C. 801 note) is repealed.

SEC. 7. REPORT ON CURRENT DETAINEES AT UNITED STATES NAVAL STATION, 
              GUANTANAMO BAY, CUBA, DETERMINED OR ASSESSED TO BE HIGH-
              RISK OR MEDIUM RISK.

    (a) Report Required.--Not later than 60 days after the date of the 
enactment of this Act, the Secretary of Defense shall submit to the 
appropriate committees of Congress a report, in unclassified form, 
setting forth a list of the individuals detained at Guantanamo as of 
the date of the enactment of this Act who have been determined or 
assessed by Joint Task Force Guantanamo, at any time before the date of 
the report, to be a high-risk or medium-risk threat to the United 
States, its interests, or its allies.
    (b) Elements.--The report under subsection (a) shall set forth, for 
each individual covered by the report, the following:
            (1) The name and country of origin.
            (2) The date on which first designated or assessed as a 
        high-risk or medium-risk threat to the United States, its 
        interests, or its allies.
            (3) Whether, as of the date of the report, currently 
        designated or assessed as a high-risk or medium-risk threat to 
        the United States, its interests, or its allies.
            (4) If the designation or assessment changed between the 
        date specified pursuant to paragraph (2) and the date of the 
        report, the year and month in which the designation or 
        assessment changed and the designation or assessment to which 
        changed.
            (5) To the extent practicable, without jeopardizing 
        intelligence sources and methods--
                    (A) prior actions in support of terrorism, hostile 
                actions against the United States or its allies, gross 
                violations of human rights, and other violations of 
                international law; and
                    (B) any affiliations with al Qaeda, al Qaeda 
                affiliates, or other terrorist groups.
    (c) Definitions.--In this section:
            (1) The term ``appropriate committees of Congress'' means--
                    (A) the Committee on Armed Services, the Committee 
                on Appropriations, and the Select Committee on 
                Intelligence of the Senate; and
                    (B) the Committee on Armed Services, the Committee 
                on Appropriations, and the Permanent Select Committee 
                on Intelligence of the House of Representatives.
            (2) The term ``individual detained at Guantanamo'' means 
        any individual located at United States Naval Station, 
        Guantanamo Bay, Cuba, as of October 1, 2009, who--
                    (A) is not a citizen of the United States or a 
                member of the Armed Forces of the United States; and
                    (B) is--
                            (i) in the custody or under the control of 
                        the Department of Defense; or
                            (ii) otherwise under detention at United 
                        States Naval Station, Guantanamo Bay, Cuba.
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