Sec. 1033. 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

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Except as provided in paragraph

(2)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. 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). 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— 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— is not a designated state sponsor of terrorism or a designated foreign terrorist organization; 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; 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; 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; 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 has agreed to share with the United States any information that— is related to the individual or any associates of the individual; and could affect the security of the United States, its citizens, or its allies; the United States Government and the government of the foreign country have entered into a written memorandum of understanding

(MOU)regarding the transfer of the individual and such memorandum of understanding has previously been transmitted to the appropriate committees of Congress; and 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. Except as provided in paragraph

(2)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 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. Subject to subsection (e), paragraph

(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— alternative actions will be taken to address the underlying purpose of the requirement or requirements to be waived; 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; 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 the transfer is in the national security interests of the United States. 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 copy of the determination and the waiver concerned. A statement of the basis for the determination, including— an explanation why the transfer is in the national security interests of the United States; 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 a classified summary of— the individual’s record of cooperation while in the custody of or under the effective control of the Department of Defense; and the agreements and mechanisms in place to provide for continuing cooperation. 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. The assessment required by subsection (b)(2). 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— 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 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. Each certification under subsection

(b)or report under subsection (d)(2) that includes an assessment in which favorable consideration was given an individual as described in paragraph

(1)shall also include the following: A description of the cooperation for which favorable consideration was so given. A description of operational outcomes, if any, affected by such cooperation. In this section: The term appropriate committees of Congress means— the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives. In connection with a certification made under subsection (b), the term also includes the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives, but only with respect to the submittal to such committees of a copy of the written memorandum of understanding concerned described in subsection (b)(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— is not a citizen of the United States or a member of the Armed Forces of the United States; and is— in the custody or under the control of the Department of Defense; or otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba. 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 ). The term state sponsor of terrorism has the meaning given that term in section 301(13) of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 ( 22 U.S.C. 8541(13) ). 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.