First this,
On
Wednesday, the House Armed Services Committee sits down to markup the FY2020
National Defense Authorization Act (NDAA)—the must-pass legislation that
determines defense policies and budget. In the markup process, the Committee
will consider, debate, and vote on amendments to the draft bill, which was
prepared by Chairman Adam Smith (D-WA). The baseline draft bill, which is also
called the chairman’s mark, touches on key issues ranging from the
militarization of the southern border to deterring Russia and reemphasizing the
nation’s commitment to protecting human rights....
One of the big issues is Gitmo.
The chairman’s mark rescinds restrictions on the president’s authority to transfer prisoners from Guantanamo Bay, bans bringing new detainees to Guantanamo for detention or trial by military commission, requires the Attorney General to submit a plan—other than continued law of war detention—for the remaining detainees, and expresses concern about the ability of the United States Government to provide adequate medical care for the aging detainee population.
The mark largely omits controversial restrictions on the president’s authority to transfer detainees from Guantanamo to third countries or to the United States. During the Bush administration, the president was able to transfer detainees both abroad and to the United States without Congressional restrictions and indeed transferred hundreds of detainees. During the Obama administration, however, Congress passed restrictions on transfers that infringed on the president’s authority to determine the appropriate disposition for law of war detainees by requiring an onerous certification process for foreign transfers and an outright ban on any transfers to the United States, even for a criminal prosecution or emergency medical treatment. Additionally, past defense authorizations have prevented the building or modification of facilities for housing detainees in the United States.
By contrast, Section 1032 of the Chairman’s mark largely reverts to the Bush-era policy of leaving maximum flexibility for the Commander in Chief by imposing no restrictions on transfers to the United States or on foreign country transfers other than a ban on transferring detainees to Libya, Somalia, Syria, and Yemen.
Reflecting the strong consensus among national security leaders that Guantanamo is harmful to U.S. national security interests, Section 1033 prohibits transferring any additional detainees to Guantanamo for law of war detention or military commission proceedings who were not already detained at Guantanamo in law of war detention or military commission proceedings on or after May 2, 2018.
Section 1033 also requires the Attorney General, in consultation with the Secretary of Defense, to submit a disposition plan to the defense committees within 60 days of enactment identifying a disposition for each individual still detained at Guantanamo Bay as of the date of enactment other than simply continuing to hold the individuals in continued law of war detention indefinitely.
The Chairman’s mark (Section 1034) also contains a set of Findings and a Sense of Congress concerning the ability of the United States Government to meet its obligation to provide adequate medical care to detainees at Guantanamo given the limited medical facilities at the isolated military base, the logistics challenges of providing care on base, and the increased costs of providing care there—all of which will be exacerbated as the detainee population ages.
The Chairman’s mark also directs the Comptroller General to provide an independent study to the defense committees no later than September 1, 2020 on the quality of detainee medical care at Guantanamo. The report must address several specific areas of concern, including the current state of health services, the medical needs of the detainee population, and any impediments to detainees receiving proper care at the facility. Notably absent from the Chairman’s mark is an authorization for the construction of an $88.5 million wheelchair accessible facility the Pentagon requested from Congress.
Furthermore, the Chairman’s mark expresses concerns over the stalled repatriation process for detainees who have been cleared for transfer by either the Periodic Review Board or the Guantanamo Review Task Force. The mark notes that no detainees have been transferred since January 20, 2017, despite at least five detainees having previously been approved for transfer.
The bill orders an unclassified report to explain why none of the cleared detainees have been transferred and why the process has stalled. The mark also notes that the lack of transfers is not only problematic from a policy and human rights perspective but that it is also having a negative effect on the functioning of the ongoing periodic review board (PRB) process.
Read the rest here at Just Security.
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