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112TH CONGRESS " HOUSE OF REPRESENTATIVES 1st Session

!

REPORT 112–

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012

, 2011.—Ordered to be printed

Mr. McKeon, from the committee of conference, submitted the following

CONFERENCE REPORT
[To accompany H.R. 1540]

The committee of conference on the disagreeing votes of the two Houses on the amendment of the Senate to the bill (H.R. 1540), to authorize appropriations for fiscal year 2012 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows: That the House recede from its disagreement to the amendment of the Senate and agree to the same with an amendment as follows: In lieu of the matter proposed to be inserted by the Senate amendment, insert the following:

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653 1 2 3 4 5 6 7 8 9 10 11 12 (B) Updated consideration of life extensions of FFG–7 class frigates in light of continued delays in deliveries of the Littoral Combat Ship deliveries. (C) Consideration of the possibility of bringing additional surface warships to Naval Station Mayport for maintenance with the consequence of spreading the ship repair workload appropriately amongst the various public and private shipyards and ensuring the long-term health of the shipyard in Mayport. (b) COMPTROLLER GENERAL
OF THE

UNITED

13 STATES ASSESSMENT.—Not later than 120 days after the 14 submittal of the report required by subsection (a), the 15 Comptroller General of the United States shall submit to 16 Congress an assessment by the Comptroller General of the 17 report, including a determination whether or not the re18 port complies with applicable best practices. 19 20 21 22 23 24

Subtitle D—Counterterrorism
SEC. 1021. 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 author-

25 ity of the President to use all necessary and appropriate

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654 1 force pursuant to the Authorization for Use of Military 2 Force (Public Law 107–40; 50 U.S.C. 1541 note) includes 3 the authority for the Armed Forces of the United States 4 to detain covered persons (as defined in subsection (b)) 5 pending disposition under the law of war. 6 (b) COVERED PERSONS.—A covered person under

7 this section is any person as follows: 8 9 10 11 12 13 14 15 16 17 18 19 (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 dis-

20 position of a person under the law of war as described 21 in subsection (a) may include the following: 22 23 24 (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

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655 1 2 3 4 5 6 7 8 9 10 (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 in-

11 tended to limit or expand the authority of the President 12 or the scope of the Authorization for Use of Military 13 Force. 14 (e) AUTHORITIES.—Nothing in this section shall be

15 construed to affect existing law or authorities relating to 16 the detention of United States citizens, lawful resident 17 aliens of the United States, or any other persons who are 18 captured or arrested in the United States. 19 (f) REQUIREMENT
FOR

BRIEFINGS

OF

CONGRESS.—

20 The Secretary of Defense shall regularly brief Congress 21 regarding the application of the authority described in this 22 section, including the organizations, entities, and individ23 uals considered to be ‘‘covered persons’’ for purposes of 24 subsection (b)(2).

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656 1 2 3
SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.

(a) CUSTODY PENDING DISPOSITION UNDER LAW OF

4 WAR.— 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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(1) IN

GENERAL.—Except

as provided in para-

graph (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 1021 who is determined— (A) to be a member of, or part of, alQaeda 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
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657 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
AND

section 1021(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1028. (4) WAIVER
FOR NATIONAL SECURITY.—The

President may waive the requirement of paragraph (1) if the President 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

LAWFUL RESIDENT ALIENS.— (1) UNITED
STATES CITIZENS.—The

require-

ment to detain a person in military custody under this section does not extend to citizens of the United States. (2) LAWFUL
RESIDENT ALIENS.—The

require-

ment 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

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658 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 which is ongoing at the time the determination is made and does not require the interruption of any such ongoing interrogation. (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

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659 1 2 3 4 5 6 7 8 9 10 11 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) AUTHORITIES.—Nothing in this section shall be

12 construed to affect the existing criminal enforcement and 13 national security authorities of the Federal Bureau of In14 vestigation or any other domestic law enforcement agency 15 with regard to a covered person, regardless whether such 16 covered person is held in military custody. 17 (e) EFFECTIVE DATE.—This section shall take effect

18 on the date that is 60 days after the date of the enactment 19 of this Act, and shall apply with respect to persons de20 scribed in subsection (a)(2) who are taken into the custody 21 or brought under the control of the United States on or 22 after that effective date.

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660 1 2 3 4 5
SEC. 1023. PROCEDURES FOR PERIODIC DETENTION REVIEW OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) PROCEDURES REQUIRED.—Not later than 180

6 days after the date of the enactment of this Act, the Sec7 retary of Defense shall submit to the appropriate commit8 tees of Congress a report setting forth procedures for im9 plementing the periodic review process required by Execu10 tive Order No. 13567 for individuals detained at United 11 States Naval Station, Guantanamo Bay, Cuba, pursuant 12 to the Authorization for Use of Military Force (Public 13 Law 107–40; 50 U.S.C. 1541 note). 14 (b) COVERED MATTERS.—The procedures submitted

15 under subsection (a) shall, at a minimum— 16 17 18 19 20 21 22 23 24 25 26
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(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 sub(514854|11)
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661 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 section (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; (3) clarify that the periodic review process applies to any individual who is detained as an unprivileged enemy belligerent at United States Naval Station, Guantanamo Bay, Cuba, at any time; and (4) 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

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662 1 2 3 4 (E) any law enforcement interest in the detainee. (c) APPROPRIATE COMMITTEES
FINED.—In OF

CONGRESS DE-

this section, the term ‘‘appropriate commit-

5 tees of Congress’’ means— 6 7 8 9 10 11 12 (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. 1024. PROCEDURES FOR STATUS DETERMINATIONS.

(a) IN GENERAL.—Not later than 90 days after the

13 date of the enactment of this Act, the Secretary of Defense 14 shall submit to the appropriate committees of Congress 15 a report setting forth the procedures for determining the 16 status of persons detained pursuant to the Authorization 17 for Use of Military Force (Public Law 107–40; 50 U.S.C. 18 1541 note) for purposes of section 1021. 19 (b) ELEMENTS
OF

PROCEDURES.—The procedures

20 required by this section shall provide for the following in 21 the case of any unprivileged enemy belligerent who will 22 be held in long-term detention under the law of war pursu23 ant to the Authorization for Use of Military Force:

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663 1 2 3 4 5 6 7 8 (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) APPLICABILITY.—The Secretary of Defense is not

9 required to apply the procedures required by this section 10 in the case of a person for whom habeas corpus review 11 is available in a Federal court. 12 (d) REPORT
ON

MODIFICATION

OF

PROCEDURES.—

13 The Secretary of Defense shall submit to the appropriate 14 committees of Congress a report on any modification of 15 the procedures submitted under this section. The report 16 on any such modification shall be so submitted not later 17 than 60 days before the date on which such modification 18 goes into effect. 19 20 (e) APPROPRIATE COMMITTEES
FINED.—In OF

CONGRESS DE-

this section, the term ‘‘appropriate commit-

21 tees of Congress’’ means— 22 23 (1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and

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664 1 2 3 4 5 6 7 (2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.
SEC. 1025. REQUIREMENT FOR NATIONAL SECURITY PROTOCOLS GOVERNING DETAINEE COMMUNICATIONS.

(a) IN GENERAL.—Not later than 180 days after the

8 date of the enactment of this Act, the Secretary of Defense 9 shall develop and submit to the congressional defense com10 mittees a national security protocol governing communica11 tions to and from individuals detained at United States 12 Naval Station, Guantanamo Bay, Cuba, pursuant to the 13 Authorization for Use of Military Force (Public Law 107– 14 40; 50 U.S.C. 1541 note), and related issues. 15 (b) CONTENTS.—The protocol developed pursuant to

16 subsection (a) shall include Department of Defense poli17 cies and procedures regarding each of the following: 18 19 20 21 22 23 24 (1) Detainee access to military or civilian legal representation, or both, including any limitations on such access and the manner in which any applicable legal privileges will be balanced with national security considerations. (2) Detainee communications with persons other than Federal Government personnel and mem-

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665 1 2 3 4 5 6 7 8 9 10 11 12 13 14 bers of the Armed Forces, including meetings, mail, phone calls, and video teleconferences, including— (A) any limitations on categories of information that may be discussed or materials that may be shared; and (B) the process by which such communications or materials are to be monitored or reviewed. (3) The extent to which detainees may receive visits by persons other than military or civilian representatives. (4) The measures planned to be taken to implement and enforce the provisions of the protocol. (c) UPDATES.—The Secretary of Defense shall notify

15 the congressional defense committees of any significant 16 change to the policies and procedures described in the pro17 tocol submitted pursuant to subsection (a) not later than 18 30 days after such change is made. 19 (d) FORM
OF

PROTOCOL.—The protocol submitted

20 pursuant to subsection (a) may be submitted in classified 21 form.

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666 1 2 3 4 5 6
SEC. 1026. PROHIBITION ON USE OF FUNDS TO CONSTRUCT OR MODIFY TO FACILITIES HOUSE IN THE UNITED TRANS-

STATES

DETAINEES

FERRED FROM UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) IN GENERAL.—No amounts authorized to be ap-

7 propriated or otherwise made available to the Department 8 of Defense for fiscal year 2012 may be used to construct 9 or modify any facility in the United States, its territories, 10 or possessions to house any individual detained at Guanta11 namo for the purposes of detention or imprisonment in 12 the custody or under the control of the Department of De13 fense unless authorized by Congress. 14 (b) EXCEPTION.—The prohibition in subsection (a)

15 shall not apply to any modification of facilities at United 16 States Naval Station, Guantanamo Bay, Cuba. 17 18 (c) INDIVIDUAL DETAINED
FINED.—In AT

GUANTANAMO DE-

this section, the term ‘‘individual detained at

19 Guantanamo’’ has the meaning given that term in section 20 1028(e)(2). 21 (d) REPEAL
OF

SUPERSEDED AUTHORITY.—Section

22 1034 of the Ike Skelton National Defense Authorization 23 Act for Fiscal Year 2011 (Public Law 111–383; 124 Stat. 24 4353) is amended by striking subsections (a), (b), and (c).

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667 1 2 3 4 5
SEC. 1027. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

None of the funds authorized to be appropriated by

6 this Act for fiscal year 2012 may be used to transfer, re7 lease, or assist in the transfer or release to or within the 8 United States, its territories, or possessions of Khalid 9 Sheikh Mohammed or any other detainee who— 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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(1) is not a United States citizen or a member of the Armed Forces of the United States; and (2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.
SEC. 1028. 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
FER.—

TO

TRANS-

(1) IN

GENERAL.—Except

as provided in para-

graph (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 indi(514854|11)
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668 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 vidual 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

20 subsection is a written certification made by the Secretary 21 of Defense, with the concurrence of the Secretary of State 22 and in consultation with the Director of National Intel23 ligence, that— 24 25 (1) the government of the foreign country or the recognized leadership of the foreign entity to

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669 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 which the individual detained at Guantanamo is to be transferred— (A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization; (B) 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; (C) 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; (D) 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; (E) 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 (F) has agreed to share with the United States any information that—

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670 1 2 3 4 5 6 7 8 9 (i) is related to the individual or any associates of the individual; and (ii) could affect the security of the United States, its citizens, or its allies; and (2) 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. (c) PROHIBITION
IN

CASES

OF

PRIOR CONFIRMED

10 RECIDIVISM.— 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (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 trans-

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671 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 fer 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 subparagraph (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— (A) alternative actions will be taken to address the underlying purpose of the requirement or requirements to be waived;

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672 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (B) 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; (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.

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673 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (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 subparagraph (D) or (E) of subsection (b)(1), an explanation why it is not possible to certify that the risks addressed in the subparagraph 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 subparagraph or subsection to be waived. (D) The assessment required by subsection (b)(2). (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 Perma-

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674 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 nent 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

21 1033 of the Ike Skelton National Defense Authorization 22 Act for Fiscal Year 2011 (Public Law 111–383; 124 Stat. 23 4351) is repealed.

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675 1 2 3
SEC. 1029. REQUIREMENT FOR CONSULTATION REGARDING PROSECUTION OF TERRORISTS.

(a) IN GENERAL.—Before seeking an indictment of,

4 or otherwise charging, an individual described in sub5 section (b) in a Federal court, the Attorney General shall 6 consult with the Director of National Intelligence and the 7 Secretary of Defense about— 8 9 10 11 12 13 14 (1) whether the more appropriate forum for prosecution would be a Federal court or a military commission; and (2) whether the individual should be held in civilian custody or military custody pending prosecution. (b) APPLICABILITY.—The consultation requirement

15 in subsection (a) applies to— 16 17 18 19 20 21 22 (1) a person who is subject to the requirements of section 1022, in accordance with a determination made pursuant to subsection (a)(2) of such section; and (2) any other person who is held in military detention outside of the United States pursuant to the authority affirmed by section 1021.

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676 1 2 3 4
SEC. 1030. CLARIFICATION OF RIGHT TO PLEAD GUILTY IN TRIAL OF CAPITAL OFFENSE BY MILITARY COMMISSION.

(a) CLARIFICATION

OF

RIGHT.—Section 949m(b)(2)

5 of title 10, United States Code, is amended— 6 7 8 9 10 11 12 13 (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

14 title is amended— 15 16 17 18 19 20 21 22 23 24 25 (1) in the first sentence of subsection (b)— (A) by inserting after ‘‘military judge’’ the following: ‘‘, including a charge or specification that has been referred capital,’’; (B) by inserting ‘‘by the military judge’’ after ‘‘may be entered’’; and (C) by inserting ‘‘by the members’’ after ‘‘vote’’; and (2) by adding at the end the following new subsection: ‘‘(c) PRE-TRIAL AGREEMENTS.—(1) A plea of guilty

26 made by the accused that is accepted by a military judge
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677 1 under subsection (b) and not withdrawn prior to an2 nouncement of the sentence may form the basis for an 3 agreement reducing the maximum sentence approved by 4 the convening authority, including the reduction of a sen5 tence of death to a lesser punishment, or that the case 6 will be referred to a military commission under this chap7 ter without seeking the penalty of death. Such an agree8 ment may provide for terms and conditions in addition to 9 a guilty plea by the accused in order to be effective. 10 ‘‘(2) A plea agreement under this subsection may not

11 provide for a sentence of death imposed by a military 12 judge alone. A sentence of death may only be imposed by 13 the unanimous vote of all members of a military commis14 sion concurring in the sentence of death as provided in 15 section 949m(b)(2)(D) of this title.’’. 16 17 18
SEC. 1031. COUNTERTERRORISM OPERATIONAL BRIEFING REQUIREMENT.

(a) BRIEFINGS REQUIRED.—Beginning not later

19 than March 1, 2012, the Secretary of Defense shall pro20 vide to the congressional defense committees quarterly 21 briefings outlining Department of Defense

22 counterterrorism operations and related activities involv23 ing special operations forces. 24 (b) ELEMENTS.—Each briefing under subsection (a)

25 shall include each of the following:

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678 1 2 3 4 5 6 7 8 9 10 11 12 (1) A global update on activity within each geographic combatant command. (2) An overview of authorities and legal issues including limitations. (3) An outline of interagency activities and initiatives. (4) Any other matters the Secretary considers appropriate.
SEC. 1032. NATIONAL SECURITY PLANNING GUIDANCE TO DENY SAFE HAVENS TO AL-QAEDA AND ITS VIOLENT EXTREMIST AFFILIATES.

(a) PURPOSE.—The purpose of this section is to im-

13 prove interagency strategic planning and execution to 14 more effectively integrate efforts to deny safe havens and 15 strengthen at-risk states to further the goals of the Na16 tional Security Strategy related to the disruption, dis17 mantlement, and defeat of al-Qaeda and its violent ex18 tremist affiliates. 19 20 21 22 23 24 25 (b) NATIONAL SECURITY PLANNING GUIDANCE.— (1) GUIDANCE
REQUIRED.—The

President shall

issue classified or unclassified national security planning guidance in support of objectives stated in the national security strategy report submitted to Congress by the President pursuant to section 108 of the National Security Act of 1947 (50 U.S.C. 404a)

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679 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to deny safe havens to al-Qaeda and its violent extremist affiliates and to strengthen at-risk states. Such guidance shall serve as the strategic plan that governs United States and coordinated international efforts to enhance the capacity of governmental and nongovernmental entities to work toward the goal of eliminating the ability of al-Qaeda and its violent extremist affiliates to establish or maintain safe havens. (2) CONTENTS
OF GUIDANCE.—The

guidance

required under paragraph (1) shall include each of the following: (A) A prioritized list of specified geographic areas that the President determines are necessary to address and an explicit discussion and list of the criteria or rationale used to prioritize the areas on the list, including a discussion of the conditions that would hamper the ability of the United States to strengthen atrisk states or other entities in such areas. (B) For each specified geographic area, a description, analysis, and discussion of the core problems and contributing issues that allow or could allow al-Qaeda and its violent extremist affiliates to use the area as a safe haven from

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680 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which to plan and launch attacks, engage in propaganda, or raise funds and other support, including any ongoing or potential

radicalization of the population, or to use the area as a key transit route for personnel, weapons, funding, or other support. (C) A list of short-term, mid-term, and long-term goals for each specified geographic area, prioritized by importance. (D) A description of the role and mission of each Federal department and agency involved in executing the guidance, including the Departments of Defense, Justice, Treasury, and State and the Agency for International Development. (E) A description of gaps in United States capabilities to meet the goals listed pursuant to subparagraph (C), and the extent to which those gaps can be met through coordination with nongovernmental, international, or private sector organizations, entities, or companies. (3) REVIEW
AND UPDATE OF GUIDANCE.—The

President shall review and update the guidance required under paragraph (1) as necessary. Any such review shall address each of the following:

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681 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 (A) The overall progress made toward achieving the goals listed pursuant to paragraph (2)(C), including an overall assessment of the progress in denying a safe haven to alQaeda and its violent extremist affiliates. (B) The performance of each Federal department and agency involved in executing the guidance. (C) The performance of the unified country team and appropriate combatant command, or in the case of a cross-border effort, country teams in the area and the appropriate combatant command. (D) Any addition to, deletion from, or change in the order of the prioritized list maintained pursuant to paragraph (2)(A). (4) SPECIFIED
GEOGRAPHIC AREA DEFINED.—

In this subsection, the term ‘‘specified geographic area’’ means any country, subnational territory, or region— (A) that serves or may potentially serve as a safe haven for al-Qaeda or a violent extremist affiliate of al-Qaeda—

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682 1 2 3 4 5 6 7 8 9 10 11 12 13 14 (i) from which to plan and launch attacks, engage in propaganda, or raise funds and other support; or (ii) for use as a key transit route for personnel, weapons, funding, or other support; and (B) over which one or more governments or entities exert insufficient governmental or security control to deny al-Qaeda and its violent extremist affiliates the ability to establish a large scale presence.
SEC. 1033. EXTENSION OF AUTHORITY TO MAKE REWARDS FOR COMBATING TERRORISM.

Section 127b of title 10, United States Code, is

15 amended— 16 17 18 19 20 21 22 23 24 25 (1) in subsection (c)(3)(C), by striking ‘‘September 30, 2011’’ and inserting ‘‘September 30, 2013’’; and (2) in subsection (f)— (A) in paragraph (1), by striking ‘‘December’’ and inserting ‘‘February’’; and (B) in paragraph (2)— (i) in subparagraph (C)(ii), by inserting ‘‘and the recipient’s geographic location’’ after ‘‘reward’’; and

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683 1 2 3 4 5 6 7 8 9 10 11 12 13 14 (ii) by adding at the end the following new subparagraphs: ‘‘(E) A description of the status of program implementation in each geographic combatant command. ‘‘(F) A description of efforts to coordinate and de-conflict the authority under subsection (a) with similar rewards programs administered by the United States Government. ‘‘(G) An assessment of the effectiveness of the program in meeting its objectives.’’.
SEC. 1034. AMENDMENTS RELATING TO THE MILITARY COMMISSIONS ACT OF 2009.

(a) REFERENCE

TO

HOW CHARGES ARE MADE.—

15 Section 949a(b)(2)(C) of title 10, United States Code, is 16 amended by striking ‘‘preferred’’ in clauses (i) and (ii) and 17 inserting ‘‘sworn’’. 18 19 (b) JUDGES
TARY OF

UNITED STATES COURT

OF

MILI-

COMMISSION REVIEW.—Section 949b(b) of such

20 title is amended— 21 22 23 24 25 (1) in paragraph (1)(A), by striking ‘‘a military appellate judge or other duly appointed judge under this chapter on’’ and inserting ‘‘a judge on’’; (2) in paragraph (2), by striking ‘‘a military appellate judge on’’ and inserting ‘‘a judge on’’; and

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684 1 2 3 4 5 (3) in paragraph (3)(B), by striking ‘‘an appellate military judge or a duly appointed appellate judge on’’ and inserting ‘‘a judge on’’. (c) PANELS
TARY OF

UNITED STATES COURT

OF

MILI-

COMMISSION REVIEW.—Section 950f(a) of such title

6 is amended by striking ‘‘appellate military judges’’ in the 7 second sentence and inserting ‘‘judges on the Court’’. 8 (d) REVIEW
OF

FINAL JUDGMENTS
FOR THE

BY

UNITED

9 STATES COURT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

OF

APPEALS

D.C. CIRCUIT.—

(1) CLARIFICATION
REVIEW.—Subsection

OF MATTER SUBJECT TO

(a) of section 950g of such

title is amended by inserting ‘‘as affirmed or set aside as incorrect in law by’’ after ‘‘where applicable,’’. (2) CLARIFICATION
VIEW.—Subsection ON TIME FOR SEEKING RE-

(c) of such section is amended—

(A) in the matter preceding paragraph (1), by striking ‘‘by the accused’’ and all that follows through ‘‘which—’’ and inserting ‘‘in the Court of Appeals—’’; (B) in paragraph (1)— (i) by inserting ‘‘not later than 20 days after the date on which’’ after ‘‘(1)’’; and

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685 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 (ii) by striking ‘‘on the accused or on defense counsel’’ and inserting ‘‘on the parties’’; and (C) in paragraph (2)— (i) by inserting ‘‘if’’ after ‘‘(2)’’; and (ii) by inserting before the period the following: ‘‘, not later than 20 days after the date on which such notice is submitted’’.

Subtitle E—Nuclear Forces
SEC. 1041. BIENNIAL ASSESSMENT AND REPORT ON THE DELIVERY PLATFORMS FOR NUCLEAR WEAPONS AND THE NUCLEAR COMMAND AND CONTROL SYSTEM.

(a) IN GENERAL.—Chapter 23 of title 10, United

16 States Code, is amended by adding after section 490 the 17 following new section: 18 ‘‘§ 490a. Biennial assessment and report on the deliv19 20 21
ery platforms for nuclear weapons and the nuclear command and control system

‘‘(a) BIENNIAL ASSESSMENTS.—(1) For each even-

22 numbered year, each covered official shall assess the safe23 ty, security, reliability, sustainability, performance, and 24 military effectiveness of the systems described in para25 graph (2) for which such official has responsibility.

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