Transfers from GTMO to the United States: Not Banned Outright After All?

Adam Serwer has a goodcatch on this one.  As we've noted before, the pending omnibus spending package contains a wholesale prohibition on transfers of detainees from GTMO to United States territory.  Or at least it did.  Adam notes that the transfer ban remains in the bill, yet there is now additional language (added by an as-yet-unidentified Senator) causing the ban to terminate no later than the earlier of 9/30/11 of the date of passage of the pending National Defense Authorization Act for Fiscal Year 2011 (assuming section 1032 of the NDAA FY11 remains untouched). In practical terms, this means the following: Status quo: Under NDAA FY10 Section 1041: DOD may not outright release a GTMO detainee into the United States, and can bring a GTMO detainee into the United States for purposes of a "transfer" (presumably to DOJ/Bureau of Prisons custody) only by filing with SASC and HASC (the armed services committees) a report describing the plans and mitigation measures associated with the transfer of that particular person and then waiting for 45 days. From passage of the pending omnibus spending bill until either 9/30/11 or passage of the next NDAA: No GTMO transfers into the United States period After the later of 9/30/11 or passage of the NDAAFY 11: Back to the current status quo...unless of course the new Congress in the meantime has imposed other restraints. The relevant statutory texts appear below the jump:  Here is the language in the omnibus spending bill as reported by Adam:

The prohibition under subsection (a) shall termi nate on the earlier of the date of the enactment of an Act authorizing appropriations for fiscal year 2011 for the Department of Defense that includes a provision regarding the release or transfer of detainees held at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense, or September 30, 2011.

As you'll see if you click on the link above for the NDAA, section 1032 simply carries over the existing provision (from section 1041 of the NDAA FY10) regarding limitations on transferring detainees from GTMO to the United States (i.e., it just changes the relevant dates by moving them forward).  That existing provision (section 1041 from NDAA FY10) states:

SEC. 1041. LIMITATION ON USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA. (a) RELEASE PROHIBITION.—During the period beginning on October 1, 2009, and ending on December 31, 2010, the Secretary of Defense may not use any of the amounts authorized to be appropriated in this Act or otherwise available to the Departmentof Defense to release into the United States, its territories, or possessions, any individual described in subsection (e). (b) TRANSFER LIMITATION.—During the period beginning on October 1, 2009, and ending on December 31, 2010, the Secretary of Defense may not use any of the amounts authorized to be appropriated in this Act or otherwise available to the Department of Defense to transfer any individual described in subsection (e) to the United States, its territories, or possessions, until 45 days after the President has submitted to the congressional defense committees the plan described in subsection (c). (c) COMPREHENSIVE PLAN REQUIRED.—The President shall submit to the congressional defense committees a plan for the disposition of each individual described in subsection (e) who is proposed to be transferred to the United States, its territories, or possessions. Such plan for each individual shall include, at a minimum— (1) an assessment of the risk that the individual described in subsection (e) poses to the national security of the United States, its territories, or possessions; (2) a proposal for the disposition of each such individual; (3) the measures to be taken to mitigate any risks described in paragraph (1); (4) the location or locations at which the individual will be held under the proposal for disposition required by  paragraph (2); (5) the costs associated with executing the plan, including technical and financial assistance required to be provided to State and local law enforcement agencies, if necessary, to carry out the plan; (6) a summary of the consultation required in subsection (d); and (7) a certification by the Attorney General that under the plan the individual poses little or no security risk to the United States, its territories, or possessions. (d) CONSULTATION REQUIRED.—The President shall consult with the chief executive of the State, the District of Columbia, or the territory or possession of the United States to which the disposition in subsection (c)(2) includes transfer to that State, District of Columbia, or territory or possession. (e) DETAINEES DESCRIBED.—An individual described in this subsection is any individual who is located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who— (1) is not a citizen of the United States; and (2) is— (A) in the custody or under the effective control of the Department of Defense; or (B) otherwise under detention at the United States Naval Station, Guantanamo Bay, Cuba.