I n the years since President Obama took office, Congress has included provisions in annual defense authorization bills addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and, more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. The National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 112-81 ) arguably constituted the most significant legislation informing wartime detention policy since the 2001 Authorization for the Use of Military Force (AUMF; P.L. 107-40 ), which serves as the primary legal authority for U.S. operations against Al Qaeda and associated forces. Both the National Defense Authorization Acts for FY2013 (2013 NDAA; P.L. 112-239 ) and FY2014 (2014 NDAA; P.L. 113-66 ) contain subtitles addressing U.S. detention policy, particularly with respect to persons held at Guantanamo, though neither act addresses detention matters as comprehensively as the 2012 NDAA. The FY2015 NDAA ( P.L. 113-291 ) essentially maintained the status quo established by the 2014 NDAA, while the FY2016 NDAA ( P.L. The Consolidated and Further Continuing Appropriations Act, 2015 (2015 Cromnibus, P.L. The Obama Administration subsequently stepped up transfers of cleared detainees to foreign countries. The 2016 NDAA reenacted a modified version of earlier restrictions and imposed some new ones. This report offers a brief background of the salient issues and provides a section-by-section analysis of the detainee provisions in the National Defense Authorization Act for FY2012. It also discusses executive interpretation and implementation of the act's mandatory military detention provision. Background

At the heart of the consideration of the detainee provisions in the 2012 NDAA appears to have been an effort to confirm or, as some observers view it, expand the detention authority Congress implicitly granted the President in the aftermath of the terrorist attacks of September 11, 2001. President Obama also announced that he would "not authorize the indefinite military detention without trial of American citizens," regardless of whether such detention would be permissible under the AUMF or the 2012 NDAA. However, more recent funding limitations, including those contained in the 2012 Minibus and the 2012 CAA, prohibited the transfer of Guantanamo detainees into the United States for any purpose, including criminal prosecution. This version of the restriction was extended until the end of FY2013 by the 2013 NDAA, through the end of FY2014 by the 2014 NDAA and the 2014 Omnibus, through 2015 by the 2015 NDAA and the 2015 Cromnibus, and through the end of 2016 by the 2016 NDAA and the 2016 Omnibus. Restrictions on Guantanamo detainee transfers contained in the 2012 NDAA and prior and subsequent legislative enactments are widely believed to have constrained executive efforts to transfer detainees to foreign custody. The directive declares that, acting pursuant to the statutory waiver authority provided under Section 1022, the President has waived application of the provision's military transfer requirements when
a person in U.S. custody is a lawful permanent resident alien (i.e., green-card holder) who is arrested in the United States on the basis of conduct occurring inside the country; a person has been arrested by a federal agency in the United States on charges other than terrorism, unless he is subsequently charged with a terrorism offense and held in federal custody on such charges; a person is arrested by state or local law enforcement, pursuant to state or local authority, and is thereafter transferred to federal custody; placing a foreign country's nationals or residents in U.S. military detention would impede counterterrorism cooperation, including on matters related to intelligence-sharing or assistance in the investigation or prosecution of suspected terrorists; a foreign government indicates that it will not extradite or otherwise transfer a person to the United States if he would be placed in military custody; transferring a person to military custody could interfere with efforts to secure the person's cooperation or confession; or transferring a person to military custody could interfere with efforts to jointly prosecute the individual with others who are either not subject to military custody or whose prosecution in a federal or state court had already been determined to proceed. 3304 represented a compromise between these approaches—extending the existing blanket prohibition on transferring Guantanamo detainees to the United States through the end of 2014, but allowing the Executive greater flexibility in determining whether to transfer detainees to foreign custody. 114-92 ). Section 1035 requires the Secretary of Defense to submit a comprehensive plan for the detention of current and future individuals captured and held under AUMF authority pending the end of hostilities, including the following:
the specific facility or facilities to be used to hold individuals for the purpose of trial and incarceration after conviction or law of war detention and interrogation; estimated costs associated with Guantanamo detainees' detention inside the United States; a plan for the disposition of transferred detainees if the law of war authority for detention were to expire and an assessment of precautions that might mitigate implications to the national security interests of the United States; a plan for the disposition of individuals held under AUMF authority at Guantanamo; a plan for the disposition of future detainees held under AUMF authority; and an explanation of any additional authorities that may be necessary to hold a detainee as an unprivileged enemy belligerent pursuant to the AUMF pending the end of hostilities or a future determination that the individual no longer requires detention.
In recent years, Congress has included provisions in annual defense authorization bills addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and, more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. The National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 112-81) arguably constituted the most significant legislation informing wartime detention policy since the 2001 Authorization for the Use of Military Force (AUMF; P.L. 107-40), which serves as the primary legal authority for U.S. operations against Al Qaeda and associated forces. Much of the debate surrounding passage of the 2012 NDAA centered on what appeared to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the AUMF in the aftermath of the terrorist attacks of September 11, 2001. But the 2012 NDAA addressed other issues as well, including the continued detention of persons at Guantanamo. Both the 2013 NDAA (P.L. 112-239) and the 2014 NDAA (P.L. 113-66) also contain subtitles addressing U.S. detention policy, though neither act addresses detention matters as comprehensively as did the 2012 NDAA. The 2015 NDAA (P.L. 113-291) and the Consolidated and Further Continuing Appropriations Act, 2015 (2015 Cromnibus; P.L. 113-235), essentially maintain the status quo. The 2016 NDAA (P.L. 114-92) likewise addressed detention.
The 2012 NDAA authorizes the detention of certain categories of persons and requires the military detention of a subset of them (subject to waiver); regulates status determinations for persons held pursuant to the AUMF; regulates periodic review proceedings concerning Guantanamo detainees; and continued funding restrictions on Guantanamo detainee transfers. During floor debate, significant attention centered on the extent to which the bill and existing law permit the military detention of U.S. citizens believed to be enemy belligerents, especially if arrested within the United States. The act clarified that its affirmation of detention authority under the AUMF is not intended to affect existing authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons arrested in the United States. When signing the 2012 NDAA into law, President Obama stated that he would "not authorize the indefinite military detention without trial of American citizens."
The 2012 NDAA and subsequent defense authorization enactments also included provisions concerning the transfer or release of detainees currently held at Guantanamo. Subsequent NDAAs have extended the prohibition on the release of detainees into the United States for any purpose, as well as restrictions upon the transfer of such Guantanamo detainees to foreign countries. The 2014 NDAA extended the blanket prohibition on transferring Guantanamo detainees to the United States, but allowed the Executive greater flexibility in determining whether to transfer detainees to foreign custody. Both policies continued in the 2015 NDAA and the 2015 Cromnibus, and the Obama Administration stepped up the transfer of detainees to foreign countries. The 2016 NDAA, however, reenacted and modified earlier restrictions and imposed some new transfer restrictions.
This report offers a brief background of the salient issues raised by the detainee provisions of the FY2012 NDAA, provides a section-by-section analysis, and discusses executive interpretation and implementation of the act's mandatory military detention provision. It also addresses detainee provisions in subsequent defense authorization legislation. An earlier version of this report was entitled The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters.