Should There be Restrictions on the Release or Transfer of Guantanamo Bay Prisoners? (S. 165)

It would also prevent Khalid Sheikh Mohammed from being transferred or released to the U.S. or its territories. This ban would apply to any other Guantanamo detainees that are not U.S. citizens or who have been held at the facility since January 20, 2009.

The Secretary Defense or a Dept. of Defense (DOD) official would be able to temporarily transfer Guantanamo detainees to DOD medical facilities in the U.S. if:

• They need treatment to prevent death or imminent significant harm.

• The treatment the need is not available at Guantanamo Bay without excessive or unreasonable costs.

• DOD provides security measures.

Temporarily transferred detainees would remain in the uninterrupted custody of DOD officials during their time in the U.S. They would be kept from invoking rights through immigration laws or any other U.S. laws beyond those available to them at Guantanamo Bay.

Judicial review of any claims against the U.S. regarding aspects of the detention, transfer, treatment, or conditions of confinement of a detainee transferred to the U.S. for medical treatment would be prohibited. The U.S. District Court for the District of Columbia would, however, be allowed to consider an challenge to the fact or duration of detention that seeks release from custody. The Court could not review, halt, or delay the individual’s return to Guantanamo, or order a release of the individual within the U.S.

The DOD would be prohibited from using funds to transfer Guantanamo detainees to foreign countries or entities unless DOD certifies that the country’s government or entity’s leadership:

• Is not a designated state sponsor of terrorism or foreign terrorist organization.

• Maintains control over detention facilities and isn’t facing likely threats to its control of the individual.

• Agrees to take actions to ensure that the individual can’t engage in terrorism against the U.S., its citizens or its allies.

• Agrees to share information regarding the individual or their associates that could affect the security of the U.S. or its allies.

For two years after enactment, this bill prohibits the transfer of a detainee to a country considered high-risk or medium-risk to the U.S., its interests or its allies, and specifically the Republic of Yemen or any entity within Yemen. Any country where a detainee was released and the detainee returns to terrorist activity would be prohibited from receiving future released detainees, which could be waived by DOD for national security purposes.

The DOD would be required to ensure that the operations of the Guantanamo Bay detention facility are conduct in a manner consistent with:

• The law of armed conflict, including Common Article 3 of the Geneva Conventions.

• Interrogation standards and prohibitions on cruel, inhuman, or degrading treatment or punishment under the Detainee Treatment Act of 2005.

DOD would be required to submit a list of Guantanamo detainees determined to be high-risk or medium-risk. The DOD would also be required to publish an unclassified report providing details about the previous terrorist activities of detainees remaining at Guantanamo. An additional report about the effectiveness and impact of the Guantanamo detention facility as a propaganda and recruiting tool would be required, which includes efforts to counter that impact.

This bill supersedes all previous restrictions that were set to expire on December 31, 2015.