Immigration-Related Provisions in the National Defense Authorization Act of FY 2017, Part 1

By Dan Cadman, December 6, 2016

On December 2, the House of Representatives overwhelmingly passed the Fiscal Year 2017 National Defense Authorization Act (NDAA 2017), the appropriations bill for the entire Defense Department. This is the first of two posts on immigration-related provisions in the bill.

The federal fiscal year the bill addresses actually began on October 1, 2016, so as usual this is a catching-up exercise, neither party having wanted to take on the full substantive bill until after the November elections were over, for fear of adding more controversy into the mix of an already chaotic political season.

The bill the House passed, however, is the one that has been through, and is the product of, conferencing with the Senate on its version of the bill, so it's likely that the Senate will take up the measure, and almost certainly pass it, in the very near future.

Although on its face, and by its purpose, this appropriations bill deals with national defense and military matters, there are a few interesting immigration and homeland security items embedded in its 3,000-plus pages that are worth noting. This first post on the bill addresses three different issues it contains:

  • The Guantanamo Bay terrorist detention center (Title X, Sections 1032-1035)
  • Special immigrant visas for certain Afghans (Title XII, Section 1214)
  • Sanctions against certain human rights abusers (Title XII, Sec. 1261-1265)

Guantanamo Bay Terrorist Detention Center. At least twice before I've written about the immigration implications that might come about should terrorist suspects detained at the Naval Brig in Guantanamo Bay, Cuba, be transferred to the United States. (See here and here.)

Once again, Congress has blocked this president (and the next) from doing anything of the sort by precluding the expenditure of any appropriated funds to build U.S. facilities for that purpose, to effect such transfers, or to close the brig. But President Obama's determination to functionally shutter the terrorist detention center, if not "close" it officially, is well known, and he has worked to accomplish this by transferring these individuals instead to any number of nations willing to accept them — despite avowals made under oath by Defense Secretary Ashton Carter that those detainees who are left at the brig are the worst of the worst, and can't be trusted to other nations; and despite the fact that a substantial percentage of those released to date have been documented as returning to their jihadi operations; and despite the fact that some nations have lost track of the individuals once they have been transferred into their "custody."

In response, Congress this year has added a new proviso to the string of previously-issued "thou shalt nots," to wit Section 1034, which prohibits using appropriated funds to transfer any Guantanamo detainees to the following countries:

  • Libya
  • Somalia
  • Syria
  • Yemen

One is tempted to utter a resounding "Duh!" but for the fact that before Yemen fell into its present failed-state status, there was, in fact, a Pentagon plan to transfer detainees there.

It's worth noting that one of the original legislative proposals would have gone beyond the four named hells-on-earth, and included a more general "[p]rohibition on use of funds for transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, to countries covered by Department of State travel warnings" (emphasis added), which is a significantly larger and more robust list. Regrettably, this version of the prohibition on foreign transfer of terrorist detainees failed to be adopted at conference.

Special Immigrant Visas for Certain Afghans. In 2009, Congress created a special immigrant visa category for certain Afghans who were participating in the war effort against the Taliban. This program mirrored one that was also set up for Iraqis. There was a five-year window on the program, meaning it was to sunset in 2013. The statute provided for 1,500 visas yearly to be provided to Afghans (and their families) who had aided American government or military endeavors in the country — for instance, as interpreters, drivers, etc. — who, by their assistance, were likely at risk of retaliation. The provision also specified that visas not used in any year be rolled over to the next so that the numbers weren't lost, up to the final year of the program, when there would be no rollover.

To make a long story short, the program didn't, in fact, sunset in 2013 because Congress has continually extended it, including again this year. In addition, the number of visas made available went up from 1,500 yearly to 7,000 and with this bill has once again risen to 8,500 visas, although it also winnows down the types of assistance the principal alien must have engaged in to qualify.

The program has strong support from the Pentagon, which is no surprise. Soldiers serving in hostile field locations rely on such indigenous personnel to make their jobs do-able and at least a little more survivable. They don't want to think that because of the help they provide, these individuals and their families may be targeted for murder or abduction.

But from a more removed perspective, it's fair to raise some questions having to do with numbers, duration, and vetting. If 1,500 was deemed sufficient during the years when American presence was strongest, how have the new, much larger quotas been arrived at? How long will the program last? One hates to imagine that, like so many other things Congress initiates, it will perpetuate itself long past the point of utility.

And, of course, there is that nagging issue of screening applicants and families. Both this program and its Iraqi special immigrant visa counterpart have had difficulties filling the numbers each year because of nearly intractable difficulties with background clearances. It's no wonder, though, that vetting is especially difficult for Afghan nationals. For instance, in 2012, so-called "green-on-blue" attacks (in which Afghan soldiers or police turned on their allies) constituted 15 percent of the combined casualties for U.S. and other coalition forces. In 2014, one of those green-on-blue deaths was of an American major general.

The problem is that this kind of vetting backlog in the adjudication process of a sensitive program inevitably generates bureaucratic pressure downwards to the point that at some juncture the examiners handling the cases find ways to cut corners and "get to yes" in order to get the higher-ups off their backs.

This bodes ill for the American people, because it becomes a domestic problem once these individuals and their families are admitted. We already have little reason to trust the vetting processes at U.S. Citizenship and Immigration Services (USCIS), given all of the failed cases that have come to light in recent years involving terrorists, would-be terrorists, and criminals. Worse yet, the House Judiciary Committee recently discovered just such corner-cutting when a confidential source provided the committee evidence that USCIS examiners were short-circuiting FBI name checks for naturalization applicants. We don't know whether this was the case with other forms of benefits as well, because USCIS did everything possible to conceal this problem from the public until the confidential informant revealed it to the Judiciary Committee.

Sanctions for Violators of Internationally Recognized Human Rights. This series of provisions within NDAA 2017 is self-contained. It's called the "Global Magnitsky Human Rights Accountability Act", and authorizes the president to impose sanctions on foreign persons (or their agents) who are:

[R]esponsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals in any foreign country who seek (A) to expose illegal activity carried out by government officials; or (B) to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections.

Similarly, the president may impose such sanctions on government officials, senior associates of those officials, and individuals who materially support or sponsor such officials who are:

[R]esponsible for, or complicit in, ordering, controlling, or otherwise directing, acts of significant corruption, including the expropriation of private or public assets for personal gain, corruption related to government contracts or the extraction of natural resources, bribery, or the facilitation or transfer of the proceeds of corruption to foreign jurisdictions.

Among the key sanctions to be levied against these violators, described at Subsection 1263(b), is ineligibility to receive a visa, and inadmissibility to the United States. Individuals who are determined to be within the scope of Global Magnitsky Act after they have already received visas are subject to having those visas revoked.

The act does not prescribe what might happen should such a person be identified after he or she has already received a benefit such as lawful resident alien status. Presumably at that point the usual functions of immigration law, as already embedded in the Immigration and Nationality Act, would kick in. The question in such a circumstance would inevitably revolve around whether the actions that led to the presidential determination occurred prior to admission or receipt of resident alien status. If so, it is likely that a case might be made that the individual committed fraud by concealing material facts at the time of applying for a visa or for adjustment to permanent residency.

The Global Magnitsky Act provides that a presidential declaration may be triggered by information received from the chairs of certain congressional committees, or via credible evidence provided by other governments or even nongovernmental organizations.

There is an exception to the ineligibility to receive visas and inadmissibility to the United States for two circumstances: first, when necessary to provide access of the identified foreign person or governmental official to the United Nations as per international agreement(s); and second, when doing so "would further important law enforcement objectives", although those law enforcement objectives are nowhere defined.

The president may also "de-sanction" identified foreign persons or governmental officials upon credible findings that the person didn't, in fact, engage in the proscribed conduct; or has been prosecuted or otherwise punished for the conduct; or has significantly changed his ways after having "paid an appropriate consequence" for the conduct.

Section 1265 establishes a sunset to the Global Magnitsky Act, which would cause it to expire six years after enactment of NDAA 2017, absent congressional action to continue the sanctions regimen.


Part Two of this analysis will cover Title XIX of NDAA 2017: The "Department of Homeland Security Strategy for International Programs".