Organize to Break New Ground
• Time for a New Constitution and New Direction for the Economy!
• Congress Approves Indefinite Detention and $662 Billion in Funding for Pentagon
• CCR Condemns Obama for Failure to Veto Dangerous Legislation That Strips Right to Trial
• Obama Breaks Promise To Veto Bill Allowing Indefinite Detention of Americans
• National Defense Authorization Act for Fiscal Year 2012
Time for a New Constitution and New Direction for the Economy!
As people in the U.S. joined those worldwide in organizing various activities in December to carry forward the fight for human rights and migrant rights, the criminal state of human rights inside the U.S. was brutally evident. So too was the necessity for the working class and people to advance their fight to break new ground, to organize for a new direction for the economy and for political affairs.
The violence of poverty is increasing and impacting almost half of the people in the U.S., many of them workers. (see VOR update 111215). More children are hungry and homeless than last year and the numbers are increasing. The President and Congress joined in providing more than $660 billion in funding for the Pentagon and criminal U.S. wars, while also imposing trillions of dollars in cuts for basic human rights like the rights to education, housing and healthcare.
Immigrants face yet more deportations, with a record more than 400,000 this year alone, separating many families. Mass detentions, government violence and racism against immigrant and national minority communities intensifies. Mass racist incarceration and torture of prisoners using solitary confinement also continues, while the Guantánamo concentration camp and others worldwide continue their indefinite detention and torture of thousands.
On the 220th anniversary of the Bill of Rights, Congress passed a bill that enshrines indefinite detention without charges or trial of “any person” branded by the president as having “supported al-Qaeda, the Taliban, or associated forces.” There are no definitions of what constitutes “support” or “associated forces” so the government has impunity to interpret this however it chooses. Arrests and detention of citizens and non-citizens alike, inside and outside of the country can be done by the military or other policing agencies, as the president decides. Due process, habeas corpus, being charged before a judge, trial by jury, detention on the basis of conviction of a crime, all are now officially not the law. Presidential descretion to brand people and organizations as "terrorists," or "supporters" of "associated forces" and impose indefinite detention without charges or trial has been codified into law.
The existing Constitution with its Bill of Rights has not blocked the brutal government attacks on rights and its current direction of more war and fascism, with indefinite detention a part of this. So too is Obama's use of targetted assassinations, which are also decided at his descretion as president executing his powers.
There are no mechanisms for the public to enforce its will, such as national referendums, or means to challenge unjust laws or eliminate these police powers of the president. There is no ability to bring criminal charges against a government and government officials committing crimes.
Poverty is a social crime of violence but the Constitution does not make it so. On the contrary it protects private property and the property rights of the rich. Workers, youth, demonstrators all have experience that in the name of protecting private property and monopoly right, they can be jailed for defending their rights while crimes by the monopolies and their government go unpunished.
We live in a modern society with a socialized economy where the workers produce abundant wealth. As human beings we have rights simply because we are human. We are born to society and depend on society. Governments, at all levels, have the social responsibility to guarantee the rights of all, including human rights, migrant rights, women’s rights, workers’ rights and minority rights. Yet the working class and people are faced with an economy that cannot provide for the rights of all and a political system that stands against the will of the majority and systematically guarantees the rights of the monopolies — to plunder and exploit the peoples and sustain their unsustainable system through force.
There is an alternative to this criminal and unsustainable system that the workers themselves can and must organize to bring about. A new direction for the economy, one that serves the people is required. A new political system that empowers the people themselves to govern and decide is required. A new Constitution that is human centered and puts guaranteeing the rights of all at the center, is the order of the day. Demanding political mechanisms enabling the people to charge and punish those who trample on rights; providing for national referendum votes on major issues with the government required to provide full information on the issues; and local and state empowerment councils can all be fought for now.
The ruling circles are making clear that they have no solutions to the social problems we face. Measures such as indefinite detention without trial are measures of desperation, of a class that cannot go forward and thus is driving society backward so as to cling to their outdated rule.
Such desperation has no place among the working class and people. There is an alternative! The working class has the numbers and social duty to block the direction of fascism and war and strike out on its own new path. Struggles over the past year, by Wisconsin workers, those in Ohio, Michigan and elsewhere are indicative that workers are uniting to defend rights while also challenging the existing set up that blocks the people from power. Organizing to further build up their own fighting defense organizations and keep matters in their own hands is a struggle being waged. Taking up the fight to settle scores with the old, including the old Constitution and its old political arrangements by breaking new ground is a path workers can take up with confidence, knowing it provides a way forward for all.
Organize to Break New Ground!
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Congress Approves Indefinite Detention and $662 Billion in Funding for Pentagon
On December 15 Congress approved the 2012 funding for the Pentagon, $662 billion, an increase over last year. U.S. military funding accounts for more than 40 percent of all military spending worldwide. It is already far larger than the combined spending of the next top six countries in military funding, which include China, Russia and Japan.
The bill passed both the House and Senate by large majorities, 86-13 in the Senate and 283-136 in the House. However, the various votes on amendments showed the continuing fracturing of the political parties, with blocs of both parties voting for and against at various times. President Barack Obama is expected to sign it by December 26.
The increase in Pentagon funding is occurring when the U.S. aggressive wars against Iraq and Afghanistan are supposed to be ending. And when there are trillions of dollars in cuts to social programs, including education, Medicare, funding for emergency food and shelter — programs needed by increasing numbers of families. For many the bill is a crime of itself, funding aggression while increasing broad attacks on the rights of the people.
Consistent with U.S. crimes against the peace of planning aggressive war against Iran, the bill also includes more sanctions against Iran. The sanctions are aimed not at Iran’s nuclear energy, but at her oil sector. They are also another example of the U.S. use of sanctions to interfere in the sovereignty of other countries. Specifically, central banks of other countries and foreign financial institutions will have to stop engaging in large oil transactions with Iran or be shut out of the U.S. financial system, which dominates worldwide trading. Thus everyone is to submit to U.S. dictate or themselves face U.S. sanctions. Allies like South Korea and Japan, big consumers of Iranian oil, have already begun seeking waivers to any U.S. sanctions, which can be granted by the president.
Consistent with President Obama’s role of institutionalizing increased police powers of the executive and broad attacks on rights, the bill also serves to codify in law the power of the president to indefinitely detain without trial those he brands as “suspected terrorists.” Indefinite detention can be applied to citizens and non-citizens alike, arrested inside or outside the U.S. It includes detention by the military. This serves to increase the role of the military in policing actions inside the country, including allowing them to make arrests — something largely banned since the time of the Civil War. But detention is not limited to the military, meaning it can also be carried out by the CIA or ICE or other agencies. It is also directly contrary to what had been rule of law in the U.S., including norms such as innocent until proven guilty of a crime, being charged in open court before a judge, a right to a public jury trial and detention based on conviction for a crime, not “suspicion.” It can be said that the bill is being used to make the tyranny and injustice of elimination of due process and use of indefinite detention without charges “legal” and legitimate.
The legislation also extends for another year a ban on transferring prisoners held at the Guantánamo Bay concentration camp, even to face trial and on the use of Pentagon funds to build facilities in the U.S. to house such prisoners. Obama cannot release any detainee to another country without meeting certification requirements regarding that country’s security measures, requirements that have not yet been met anywhere, according to the U.S.
The U.S. continues to hold at least 2,500 people in detention centers around the world, according to letter Obama provided to House Speaker Republican John A. Boehner December 15. Guantánamo Bay is holding 170 detainees, the president said. The Pentagon, CIA, FBI and others have cleared more than half of these 170 people for release, and the Supreme Court has required it for some, yet they remain in indefinite detention at Guantánamo. The Pentagon bill ensures they will continue to be held prisoner.
The passage of the bill also was done in what is becoming “normal” for Congress, with top people in Congressional committees meeting behind closed doors then imposing and rapidly passing the final version of the bills without the usual congressional debate, hearings, and so forth. In this case it was rammed through by the House and Senate Armed Services Committees without the Judiciary and Intelligence Committees invoking their concurrent jurisdiction for public hearings. As well the usual legislative “findings” justifying the content were not provided. A final version of the detainee portion was worked out in committee and the final bill voted on within 24 hours in both the House and Senate, although both Congress and the President admitted the measure represented significant changes concerning indefinite detention without trial and the role of the military inside the country. As well, no Senator invoked what is called a “hold” to at least temporarily prevent passage of the bill, although several also stated the bill was unconstitutional.
Many across the U.S. and worldwide are denouncing the measure, both for its horrific military funding and its open efforts to completely eliminate rule of law and replace it with the executive tyranny of might makes right abroad and at home.
Contention Within Policing and Military Forces
Debate over the detainee section of the bill revealed contention between the FBI, CIA and military. The FBI said military detention could prevent it from interrogating suspects. FBI Director Robert Mueller gave the Lackawanna Six, all U.S. citizens, as an example where use of the military could have “interfered” with arrests and interrogations. It will be remembered that the case, from 2002, involved mass terrorizing of the Lackawanna community by a Joint Terrorism Task Force that included federal, state and local police agencies; no actual proof of any act of terrorism or violence; spying on mosques, gas stations and the youth soccer field; and forced guilty pleas that prevents trials, under threat of being sent to the Guantánamo concentration camp.
Military generals also raised concerns about the bill. Two retired 4 star marine generals, Charles C. Krulak and Joseph P. Hoar, urged a veto by Obama and said:
“One provision would authorize the military to indefinitely detain without charge people suspected of involvement with terrorism, including United States citizens apprehended on American soil. Due process would be a thing of the past. […]
“A second provision would mandate military custody for most terrorism suspects. It would force on the military responsibilities it has not sought”…. “for domestic law enforcement….”
“A third provision would further extend a ban on transfers from Guantánamo, ensuring that this morally and financially expensive symbol of detainee abuse will remain open well into the future.”
The final wording of the detainee portion of the bill further strengthens executive powers by giving the president authority to “include” indefinite military detention along with other forms and to also issue a “waiver” for the specific provisions in the name of national security. Specifically the key section, 1031, states: “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40) includes the authority for the Armed Forces of the United States to detain covered persons.” The “covered persons” are not only those “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.” It adds, “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” The terms “substantially supported” and “associated forces” are not defined, while clearly “any person” includes citizens and non-citizens. Given existing experience with many government claims of “terrorism,” or “material support” for terrorism and its growing list of people and groups considered “terrorist” or “associated forces,” it is clear that anyone could be branded and subjected to indefinite detention without charges or trial.
In addition to the broad war of terror against Muslims and Arabs and any peoples standing against U.S. aggression, the government has also targeted numerous U.S. organizers and organizations as “supporters of terrorism” for opposing U.S. wars, organizing against the G20, G8 and NATO wars, organizing demonstrations at the RNC and DNC conventions in 2008 and more. Current indictments for “terrorism” charges against anti-war organizers and communist organizations fighting for an alternative to the current system may now become immediate arrests and indefinite military detention.
The upcoming year will also see what are called “national security” events in Chicago at the NATO/G8 meetings, as well as the DNC and RNC conventions, where protesters clearly can be branded as supporting “associated forces” simply for opposing wars against Libya and Iran and for demonstrating in support of the peoples. Indeed, efforts are already underway to criminalize protesters before any actions have occurred, by refusing to grant permits, thus making any demonstrations “unlawful.”
Despite these efforts to terrorize and criminalize all those organizing resistance here and abroad, work is going forward to continue the fight to oppose all U.S. wars, defend the rights of all and organize for an alternative that favors the people.
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CCR Condemns Obama for Failure to Veto Dangerous Legislation That Strips Right to Trial
Center for Constitutional Rights, December 14, 2011
As President Obama said this afternoon that he would not veto the National Defense Authorization Act(NDAA), the Center for Constitutional Rights (CCR) issued the following statement:
President Obama made a choice with chilling consequences today when he announced he would not veto the NDAA despite the lack of change to provisions of the bill that make it even more difficult to shut down the prison at Guantánamo and make indefinite military detention without trial a permanent feature of the U.S. legal system.
The NDAA essentially prevents President Obama from bringing men from Guantánamo to the U.S. for trial and severely curtails his ability to resettle them in third countries. More than half of the men currently detained at Guantánamo – 89 of the 171 – have been unanimously cleared by the CIA, FBI, NSC and Defense Department for transfer or release, yet they are stuck in the island prison, victims of politics.
Guantánamo, which the president once promised to close in the first year of his administration, is a global symbol of human rights violations, and indefinite detention of citizens and non-citizens alike without charge or trial violates the most fundamental principles of the rule of law. […]
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Obama Breaks Promise To Veto Bill Allowing Indefinite Detention of Americans
There was a brief moment when civil libertarians were stunned to see President Barack Obama actually take a stand in favor of civil liberties after years of rolling back on basic rights of citizens and moving beyond the Bush Administration in building up the security state. Obama said that he would veto the defense bill that contained a horrific provision for the indefinite detention of American citizens. While many predicted it, Obama has now again betrayed the civil liberties community and lifted the threat of the veto. Americans will now be subject to indefinite detention without trial in federal courts in a measure supported by both Democrats and Republicans. It is a curious way to celebrate the 220th anniversary of the Bill of Rights.
This leaves Ron Paul as the only candidate in the presidential campaign fighting the bill and generally advocating civil liberties as a rallying point for his campaign. Paul offered another strong argument against the Patriot Act and other expansions of police powers in his last debate. He also noted that the Patriot Act provisions were long advocated before 9/11, which was used as an opportunity to expand police powers. Obama has […] has convinced many liberals to fight for an Administration that blocked torture prosecutions, expanded warrantless surveillance, continued military tribunals, killed Americans on the sole authority of the President, and other core violations of civil liberties.
The White House is saying that changes to the law made it unnecessary to veto the legislation. That spin is facially ridiculous. The changes were the inclusion of some meaningless rhetoric after key amendments protecting citizens were defeated. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality. The Administration and Democratic members are in full spin — using language designed to obscure the authority given to the military. The exemption for American citizens from the mandatory detention requirement (section 1032) is the screening language for the key section, 1031, which offers no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial.
At least Senator Lindsey Graham was honest when he said on the Senate floor that “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”
I am not sure which is worse: the loss of core civil liberties or the almost mocking post hoc rationalization for abandoning principle. The Congress and the President have now completed a law that would have horrified the Framers. Indefinite detention of citizens is something that the Framers were intimately familiar with and expressly sought to bar in the Bill of Rights. […]
Even more distressing is the statement from [Democratic] sponsor Senator Carl Levin, Chairman of the Armed Services Committee that “The language which precluded the application of Section 1031 to American citizens was in the bill that we originally approved … and the administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section.”
Jonathan Turley is a constitutional scholar at George Washington University. In 2011, Professor Turley filed a challenge to the Libyan War on behalf of ten members of Congress. Among his current cases, Professor Turley represents Dr. Ali Al-Timimi and Dr. Sami Al-Arian, both targets of the U.S. war of terrorism. Reprinted from jonathanturley.org
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National Defense Authorization Act
for Fiscal Year 2012
Subtitle D — Detainee Matters
Subtitle D – Detainee Matters [TOP]
SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-
Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.
(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) Authorities- Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.
(f) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).
SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.
(a) Custody Pending Disposition Under Law of War-
(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
(2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined--
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.
(4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.
(b) Applicability to United States Citizens and Lawful Resident Aliens-
(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
(c) Implementation Procedures-
(1) IN GENERAL- Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
(2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:
(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.
(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation session which is ongoing at the time the determination is made and does not require the interruption of any such ongoing session.
(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other government officials of the United States are granted access to an individual who remains in the custody of a third country.
(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.
(d) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date. (see our website, usmlo.org for additional portions of this section dealing with Guantanamo concentration camp).
SEC. 1033. REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.
(a) Certification Required Prior to Transfer-
(1) IN GENERAL- 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 for fiscal year 2012 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 Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual.
(2) EXCEPTION- Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate--
(A) 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 Congress of promptly after issuance); or
(B) a pre-trial agreement entered in a military commission case prior to the date of the enactment of this Act.
(b) Certification- 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 –
(1) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;
(2) 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;
(3) 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;
(4) 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;
(5) 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
(6) has agreed to share with the United States any information that--
(A) is related to the individual or any associates of the individual; and
(B) could affect the security of the United States, its citizens, or its allies.
(c) Prohibition in Cases of Prior Confirmed Recidivism-
(1) PROHIBITION- Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise made 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.
(2) EXCEPTION- Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate--
(A) 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 Congress of promptly after issuance); or
(B) a pre-trial agreement entered in a military commission case prior to the date of the enactment of this Act.
(d) National Security Waiver-
(1) IN GENERAL- The Secretary of Defense may waive the applicability to a detainee transfer of a certification requirement specified in paragraph (4) or (5) of subsection (b) or the prohibition in subsection (c) if the Secretary, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, determines that –
(A) alternative actions will be taken to address the underlying purpose of the requirement or requirements to be waived;
(B) in the case of a waiver of paragraph (4) or (5) of subsection (b), 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;
(C) 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
(D) the transfer is in the national security interests of the United States.
(2) REPORTS- 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) A copy of the determination and the waiver concerned.
(B) A statement of the basis for the determination, including--
(i) an explanation why the transfer is in the national security interests of the United States; and
(ii) in the case of a waiver of paragraph (4) or (5) of subsection (b), an explanation why it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated.
(C) 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.
(e) Definitions- In this section:
(1) The term `appropriate committees of Congress' means--
(A) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and
(B) the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.
(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 –
(A) is not a citizen of the United States or a member of the Armed Forces of the United States; and
(B) is –
(i) in the custody or under the control of the Department of Defense; or
(ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.
(3) 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).
(f) Repeal of Superseded Authority- Section 1033 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383; 124 Stat. 4351) is repealed.
SEC. 1034. PROHIBITION ON USE OF FUNDS TO CONSTRUCT OR MODIFY FACILITIES IN THE UNITED STATES TO HOUSE DETAINEES TRANSFERRED FROM UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.
(a) In General – No amounts authorized to be appropriated or otherwise made available to the Department of Defense for fiscal year 2012 may be used to construct or modify any facility in the United States, its territories, or possessions to house any individual detained at Guantanamo for the purposes of detention or imprisonment in the custody or under the control of the Department of Defense unless authorized by Congress.
(b) Exception- The prohibition in subsection (a) shall not apply to any modification of facilities at United States Naval Station, Guantanamo Bay, Cuba.
(c) Individual Detained at Guantanamo Defined- In this section, the term `individual detained at Guantanamo' has the meaning given that term in section 1033(e)(2).
(d) Repeal of Superseded Authority- Section 1034 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383; 124 Stat. 4353) is amended by striking subsections (a), (b), and (c).
SEC. 1035. PROCEDURES FOR PERIODIC DETENTION REVIEW OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.
(a) Procedures Required- Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth procedures for implementing the periodic review process required by Executive Order No. 13567 for individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force (Public Law 107- 40).
(b) Covered Matters- The procedures submitted under subsection (a) shall, at a minimum--
(1) clarify that the purpose of the periodic review process is not to determine the legality of any detainee's law of war detention, but to make discretionary determinations whether or not a detainee represents a continuing threat to the security of the United States;
(2) clarify that the Secretary of Defense is responsible for any final decision to release or transfer an individual detained in military custody at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Executive Order referred to in subsection (a), and that in making such a final decision, the Secretary shall consider the recommendation of a periodic review board or review committee established pursuant to such Executive Order, but shall not be bound by any such recommendation; and
(3) ensure that appropriate consideration is given to factors addressing the need for continued detention of the detainee, including--
(A) the likelihood the detainee will resume terrorist activity if transferred or released;
(B) the likelihood the detainee will reestablish ties with al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners if transferred or released;
(C) the likelihood of family, tribal, or government rehabilitation or support for the detainee if transferred or released;
(D) the likelihood the detainee may be subject to trial by military commission; and
(E) any law enforcement interest in the detainee.
(c) Appropriate Committees of Congress Defined- In this section, the term `appropriate committees of Congress' means--
(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and
(2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.
SEC. 1036. PROCEDURES FOR STATUS DETERMINATIONS.
(a) In General- Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107-40) for purposes of section 1031.
(b) Elements of Procedures- The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force:
(1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.
(2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.
(c) Report on Modification of Procedures- The Secretary of Defense shall submit to the appropriate committees of Congress a report on any modification of the procedures submitted under this section. The report on any such modification shall be so submitted not later than 60 days before the date on which such modification goes into effect.
(d) Appropriate Committees of Congress Defined- In this section, the term `appropriate committees of Congress' means--
(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and
(2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.
SEC. 1037. CLARIFICATION OF RIGHT TO PLEAD GUILTY IN TRIAL OF CAPITAL OFFENSE BY MILITARY COMMISSION.
(a) Clarification of Right- Section 949m(b)(2) of title 10, United States Code, is amended--
(1) in subparagraph (C), by inserting before the semicolon the following: ‘, or a guilty plea was accepted and not withdrawn prior to announcement of the sentence in accordance with section 949i(b) of this title'; and
(2) in subparagraph (D), by inserting ‘on the sentence' after ‘vote was taken'.
(b) Pre-trial Agreements- Section 949i of such title is amended by adding at the end the following new subsection:
‘(c) Pre-trial Agreements- (1) A plea of guilty made by the accused that is accepted by a military judge under subsection (b) and not withdrawn prior to announcement of the sentence may form the basis for an agreement reducing the maximum sentence approved by the convening authority, including the reduction of a sentence of death to a lesser punishment, or that the case will be referred to a military commission under this chapter without seeking the penalty of death. Such an agreement may provide for terms and conditions in addition to a guilty plea by the accused in order to be effective.
‘(2) A plea agreement under this subsection may not provide for a sentence of death imposed by a military judge alone. A sentence of death may only be imposed by the unanimous vote of all members of a military commission concurring in the sentence of death as provided in section 949m(b)(2)(D) of this title.'