- The Washington Times - Thursday, December 12, 2013

The House voted Thursday to ease restrictions on transferring detainees at Guantanamo Bay to foreign countries as part of a yearly defense policy bill that will be considered by the Senate next week.

The defense policy bill passed the House by a bipartisan 350-69 vote. The bill sets aside $632.8 billion for the defense budget and includes some policies to combat military sex assault, like criminalizing retaliation and mandatory discharge for convicted service members, in addition to simplifying the process to transfer cleared War on Terrorism detainees back to their home countries.

“Superficially it doesn’t look a lot different, but in the real world it will make it a lot easier for the Defense Department to make these determinations and negotiate transfer agreements,” said Chris Anders, senior legislative council for the American Civil Liberties Union.

The defense policy bill was rolled out Monday in an effort to pass quickly the bill that will fund the military, including pay, before the House leaves Washington on Friday. Leaders on the House and Senate Armed Services Committees pre-conferenced a bill they believed could pass both chambers when the Senate was unable to agree on how to introduce amendments and schedule a vote last month.

“This is not the best way to proceed, but our troops and their families and our nation’s security deserve a defense bill and this is the only practical way to get a defense bill done,” Sen. Carl Levin, Michigan Democrat and head of the Senate Armed Services Committee, said Monday on the Senate floor. “There is no other way.”

The National Defense Authorization Act will not allow Guantanamo Bay detainees to be transferred to the U.S. or for any defense funds to go toward building or updating facilities for the detainees in America. It does, however, make it easier for the secretary of defense to transfer cleared detainees back to their home country after ensuring the prisoner will not return to terrorist activities and working with the home country on an individualized security plan.

Of the 162 detainees currently at Guantanamo Bay, 82 have been cleared for transfer. However, the passage of the bill will not automatically apply to all who have been cleared and cause a mass exodus. Evaluations will still be made on a case-by-case basis and individualized security plans with the detainee’s home country will need to be negotiated, Mr. Anders said.

“What the Defense Department will have to do before transferring anybody overseas is show that they’ve taken important steps to reduce the risk that a detainee will engage in any attack on the United States in the future,” he said. “For a lot of the detainees, they’ve been found that there’s no reason they should’ve been put there in the first place.”

While many argue about the human cost of indefinite incarceration, Mr. Anders also points to the financial cost of providing for detainees who could be released without causing a national security threat to the U.S. The country pays $2.7 million per year for each detainee at Guantanamo Bay, while Mr. Anders called “absurdly high.”

The defense bill extends the prohibition against transferring any prisoners to America for another year, which also has a cost. Since the detainees can’t be tried in federal court, they must face military commissions that have cost about $600 million since 2006. With only five convictions since then, that means each conviction cost taxpayers $120 million versus about $18,000 per conviction of terrorist crimes in U.S. federal court since 9/11, Mr. Anders said. While the bill leaves national security requirements for transfers intact, it removes many of the convoluted processes the secretary of defense had to complete for a transfer to happen.

“At the end of the day it was almost impossible, or at least very difficult to track through the transfer restrictions and figure out what the secretary could do and remain within what Congress had set up. In what seemed to be an abundance of caution, the secretary of defense applied the restrictions in a very restrictive way,” Mr. Anders said. “A big part of what the House and Senate negotiators did is they came up with a streamlined way so it’s much clearer what secretary of defense has to find and report to Congress on.”

Despite Senate Republicans’ complaints that amendments are not being allowed on the defense policy bill, Sen. James M. Inhofe, Oklahoma Republican and one of the negotiators of the bipartisan defense deal, said Thursday he believes the Senate has the votes to pass the measure Monday or Tuesday.