Closing the Guantanamo Detention Center: Legal Issues

Congressional research reportMay 30, 2013

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Closing the Guantanamo Detention Center:

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Closing the Guantanamo Detention Center: Legal Issues

Summary

Following the terrorist attacks of 9/11, Congress passed the Authorization for the Use of Military

Force (AUMF), which granted the President the authority “to use all necessary and appropriate

force against those ... [who] planned, authorized, committed, or aided the terrorist attacks” against

the United States. Many persons subsequently captured during military operations in Afghanistan

and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention

and possible prosecution. Although nearly 800 persons have been held at Guantanamo since early

2002, the substantial majority of Guantanamo detainees have been transferred to another country

for continued detention or release. Those detainees who remain fall into three categories: (1)

persons placed in non-penal, preventive detention to stop them from rejoining hostilities; (2)

persons who face or are expected to face criminal charges; and (3) persons who have been cleared

for transfer or release, whom the United States continues to detain pending transfer. Although the

Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees may seek habeas corpus

review of the legality of their detention, several legal issues remain unsettled.

In January 2009, President Obama issued an Executive Order to facilitate the closure of the

Guantanamo detention facility within a year. This deadline was not met, but the Administration

has repeatedly stated its intent to close the facility. In March 2011, President Obama issued a new

Executive Order establishing a process to periodically review whether the continued detention of

a lawfully held Guantanamo detainee is warranted, which resulted in some 80 detainees being

cleared for release and transfer to a foreign country. Efforts to transfer these prisoners and close

Guantanamo have been hampered by a series of congressional enactments limiting executive

discretion to transfer or release detainees into the United States, including, most recently, the

National Defense Authorization Act for FY2013 (2013 NDAA; P.L. 112-239) and the

Consolidated and Further Continuing Appropriations Act, 2013 (2013 CAA; P.L. 113-6 ). By

prohibiting funds from being used to transfer or release detainees into the United States, or to

assist in the transfer or release of detainees into the country, these acts seem to ensure that the

Guantanamo detention facility remains open at least through the 2013 fiscal year, and perhaps for

the foreseeable future. Moreover, the measures appear to make military tribunals the only viable

forum by which Guantanamo detainees could be tried for criminal offenses, as no civilian court

operates within Guantanamo, unless efforts to close the facility are successfully renewed. Upon

signing each of these measures into law, President Obama issued a statement describing his

opposition to the restrictions imposed on the transfer of Guantanamo detainees, and asserted that

his Administration will work with Congress to mitigate their effect.

The closure of the Guantanamo detention facility would raise a number of legal issues with

respect to the individuals formerly interned there, particularly if those detainees are transferred to

the United States. The nature and scope of constitutional protections owed to detainees within the

United States may be different from the protections owed to aliens held abroad. The transfer of

detainees to the United States may also have immigration consequences. This report provides an

overview of major legal issues likely to arise as a result of executive and legislative action to

close the Guantanamo detention facility. It discusses legal issues related to the transfer of

Guantanamo detainees (either to a foreign country or into the United States), the continued

detention of such persons in the United States, and the possible removal of persons brought into

the country. It also discusses selected constitutional issues that may arise in the criminal

prosecution of detainees, emphasizing the procedural and substantive protections that are utilized

in different forums (i.e., federal courts, court-martial proceedings, and military commissions).

Congressional Research Service

Closing the Guantanamo Detention Center: Legal Issues

Contents

Introduction...................................................................................................................................... 1

Detainee Transfer or Release from Guantanamo ............................................................................. 9

Transfer/Release of Guantanamo Detainees to a Country Other Than the United

States ...................................................................................................................................... 9

Transfer of Detainees into the United States ........................................................................... 16

Detention and Treatment of Persons Transferred to the United States .......................................... 19

Authority to Detain Within the United States .......................................................................... 19

Treatment of Detained Persons ................................................................................................ 23

Legal Challenges to Nature of Detention ................................................................................ 25

Removal of Detainees from the United States ............................................................................... 26

Detainees’ Rights in a Criminal Prosecution ................................................................................. 27

Right to Assistance of Counsel ................................................................................................ 31

Right Against Use of Coerced Confessions ............................................................................. 33

Right Against Prosecution under Ex Post Facto Laws ............................................................ 39

Rules Against Hearsay Evidence ............................................................................................. 44

Evidentiary Issues ............................................................................................................. 44

Constitutional Issues ......................................................................................................... 46

Right to a Speedy Trial ............................................................................................................ 48

Statutory and Regulatory Requirements............................................................................ 50

Speedy Trials under Military System ................................................................................ 51

Right to Confront Secret Evidence .......................................................................................... 52

Withholding Classified Information During Discovery .................................................... 53

The Use of Secret Evidence at Trial .................................................................................. 55

Conclusion ..................................................................................................................................... 58

Contacts

Author Contact Information........................................................................................................... 59

Congressional Research Service

Closing the Guantanamo Detention Center: Legal Issues

Introduction

Following the terrorist attacks of 9/11, Congress passed the Authorization for the Use of Military

Force (AUMF), which granted the President the authority “to use all necessary and appropriate

force against those ... [who] planned, authorized, committed, or aided the terrorist attacks” against

the United States.1 As part of the subsequent “war on terror,” many persons captured during

military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at

Guantanamo Bay, Cuba, for detention and possible prosecution before military tribunals.

Although nearly 800 persons were transported to Guantanamo from early 2002 through 2008,2 the

substantial majority of Guantanamo detainees have ultimately been transferred to a third country

for continued detention or release.3 Detainees who remain fall into three categories:

•

Persons who have been placed in preventive detention to stop them from

returning to the battlefield (formerly labeled “enemy combatants” by the Bush

Administration4). Preventive detention of captured belligerents is non-penal in

nature, and must be ended upon the cessation of hostilities.

P.L. 107-40.

Most of the detainees (632) were brought to Guantanamo in 2002. In 2003, an additional 117 detainees were brought

to Guantanamo; ten arrived in 2004; 14 in 2005; five in 2007; and one in 2008. See Guantanamo Review Task Force,

Final Report, Jan. 22, 2010, available at http://www.justice.gov/ag/guantanamo-review-final-report.pdf. No detainees

have been brought to Guantanamo since 2008.

For a detailed description of the Guantanamo detainee population, see Andrei Scheinkman et al., “The Guantanamo

Docket,” New York Times, http://projects.nytimes.com/guantanamo [hereinafter “Guantanamo Docket”]; “Names of the

Detained in Guantanamo Bay, Cuba,” Washington Post, http://projects.washingtonpost.com/guantanamo/. See also

Benjamin Wittes and Zaahira Wyne, The Current Detainee Population of Guantánamo: An Empirical Study, Brookings

Institute, December 16, 2008 [hereinafter “Brookings Report”]. Updates to the Brookings Report that track

developments in the Guantanamo detainee population are available at http://www.brookings.edu/reports/2008/

1216_detainees_wittes.aspx (last updated October 21, 2009) [hereinafter “Brookings Report Update”].

In March 2009, the Obama Administration announced a new definitional standard for the government’s authority to

detain terrorist suspects, which does not use the phrase “enemy combatant” to refer to persons who may be properly

detained. The new standard is similar in scope to the “enemy combatant” standard used by the Bush Administration to

detain terrorist suspects. Like the former standard, the new standard would permit the detention of members of the

Taliban, Al Qaeda, and associated forces, along with persons who provide support to such groups, regardless of

whether such persons were captured away from the battlefield in Afghanistan. However, in contrast to the former

standard, the new definition specifies that persons may be detained on account of support provided to Al Qaeda, the

Taliban, or associated forces only if such support is “substantial.” Department of Justice, “Department of Justice

Withdraws ‘Enemy Combatant’ Definition for Guantanamo Detainees,” press release, March 13, 2009,

http://www.usdoj.gov/opa/pr/2009/March/09-ag-232.html; In re Guantanamo Bay Detainee Litigation, Respondents’

Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held At Guantanamo Bay, No.

08-0442, filed March 13, 2009 (D.D.C.). In October 2009, Congress modified rules for military commissions pursuant

to the Military Commissions Act of 2009, enacted as part of the National Defense Authorization Act for Fiscal Year

2010, including by providing commissions with jurisdiction over alien “unprivileged enemy belligerents.” P.L. 111-84,

§1802 (amending, inter alia, 10 U.S.C. §§948a-948b). Commissions previously could exercise jurisdiction over alien

“unlawful enemy combatants.” 10 U.S.C. §948c (2008). Despite the difference in nomenclature, the two terms are used

to refer to similar categories of persons. In January 2010, a three-judge panel of the D.C. Circuit Court of Appeals held

that, at minimum, the executive’s authority to detain persons in the conflict with Al Qaeda and the Taliban covered

those persons subject to the jurisdiction of military commissions. Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010),

cert. denied 131 S. Ct. 1814 (2011). Section 1021 of the National Defense Authorization Act for 2012, P.L. 112-81,

essentially codified detention authority standards along the lines of the definition the Obama Administration employed

in the litigation above, but it refers to “covered persons” and does not use the terms enemy belligerents or enemy

combatants.

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•

Persons who, besides being subject to preventive detention, have been brought or

are expected to be brought before a military or other tribunal to face criminal

charges, including for alleged violations of the law of war. If convicted, such

persons may be subject to criminal penalty, which in the case of the most severe

offenses may include life imprisonment or death.

•

Persons who have been cleared for transfer or release to a foreign country, either

because (1) they are not believed to have been engaged in hostilities, or (2)

although they were found to have been enemy belligerents, they are no longer

considered a threat to U.S. security. Such persons remain detained at

Guantanamo until their transfer may be effectuated.

The decision by the Bush Administration to detain suspected belligerents at Guantanamo was

based upon both policy and legal considerations. From a policy standpoint, the U.S. facility at

Guantanamo offered a safe and secure location away from the battlefield where captured persons

could be interrogated and potentially tried by military tribunals for any war crimes they may have

committed. From a legal standpoint, the Bush Administration sought to avoid the possibility that

suspected enemy combatants could pursue legal challenges regarding their detention or other

wartime actions taken by the executive. The Bush Administration initially believed that

Guantanamo was largely beyond the jurisdiction of the federal courts, and noncitizens held there

would not have access to the same substantive and procedural protections that would be required

if they were detained in the United States.5

The legal support for this policy was significantly eroded by a series of Supreme Court rulings

permitting Guantanamo detainees to seek judicial review of the circumstances of their detention.

Although Congress attempted to limit federal courts’ jurisdiction over detainees through the

enactment of the Detainee Treatment Act of 2005 (DTA; P.L. 109-148, Title X) and the Military

Commissions Act of 2006 (MCA; P.L. 109-366), these efforts were subject to judicial challenge.

In 2008, the Supreme Court ruled in Boumediene v. Bush that the constitutional writ of habeas

corpus extends to noncitizens held at Guantanamo, and found that provisions of the DTA and

MCA eliminating federal habeas jurisdiction over Guantanamo detainees acted as an

unconstitutional suspension of the writ.6 As a result, Guantanamo detainees may seek habeas

review of the legality of their detention. Nonetheless, several legal issues were not definitively

settled by the Boumediene decision, including the scope of habeas review available to

Guantanamo detainees, the remedy available for those persons found to be unlawfully held by the

United States, and the extent to which other constitutional provisions extend to noncitizens held

at Guantanamo.7 Litigation addressing these matters is ongoing in the D.C. Circuit, with several

rulings being issued by the circuit court of appeals. These rulings have generally been favorable

to the legal position advanced by the government.8 The Supreme Court has denied certiorari with

Memorandum from the Office of Legal Counsel, Department of Justice, for William J. Haynes, General Counsel,

Department of Defense, Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba, December 28,

2001.

Boumediene v. Bush, 553 U.S. 723 (2008).

For background, see CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal

Court, by (name redacted) and (name redacted); CRS Report R41156,

Judicial Activity Concerning Enemy

Combatant Detainees: Major Court Rulings, by (name redacted) and (name redacted).

See CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by

(name redacted) and (name redacted).

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Closing the Guantanamo Detention Center: Legal Issues

respect to all such decisions thus far, but may prove willing to take on another Guantanamo case

in the future. In the meantime, it appears that the circuit court’s rulings will remain controlling.

On January 22, 2009, President Barack Obama issued Executive Order 13492, requiring that the

Guantanamo detention facility be closed as soon as practicable, and no later than a year from the

date of the Order.9 Any persons who continue to be held at Guantanamo at the time of closure

were to be either transferred to a third country for continued detention or release, or transferred to

another U.S. detention facility. The Order further provided that specified officials would review

all Guantanamo detentions to assess whether the detainee should continue to be held by the

United States, transferred or released to a third country, or be prosecuted by the United States for

criminal offenses.10 Reviewing authorities were required to identify and consider the legal,

logistical, and security issues that would arise in the event that some detainees are transferred to

the United States. The Order also mandated that the reviewing authorities to assess the feasibility

of prosecuting detainees in an Article III court. During this review period, the Secretary of

Defense was required to take steps to ensure that all proceedings before military commissions and

the United States Court of Military Commission Review were halted. On the same day that the

Executive Order to close the Guantanamo detention facility was issued, President Obama issued

two other Executive Orders which created separate task forces—the Special Task Force on

Detainee Disposition and the Special Task Force on Interrogation and Transfer Policies—charged

with reviewing aspects of U.S. detention policy, including the options available for the detention,

trial, or transfer of wartime detainees, whether held at Guantanamo or elsewhere.11 Although

these task forces are distinct from the task force responsible for reviewing Guantanamo

detentions, their work and recommendations may have implications on U.S. policy with respect to

Guantanamo.

Since the issuance of the Executive Order to close Guantanamo, only one detainee formerly held

there has been transferred to the United States. In June 2009, Ahmed Ghailani was transferred to

the United States to face criminal charges in federal civilian court for his alleged role in the 1998

bombings of U.S. embassies in Tanzania and Kenya (the transfer occurred shortly before

Congress enacted the first of several restrictions on the use of appropriated funds to bring

Executive Order 13492, “Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and

Closure of Detention Facilities,” 74 Federal Register 4897, January 22, 2009 [hereinafter “Executive Order”].

Id. at §4. The Order specifies that the review shall be conducted by the Attorney General (who shall also coordinate

the review process), the Secretary of Defense, the Secretary of State, the Secretary of Homeland Security, the Director

of National Intelligence, the Chairman of the Joint Chiefs of Staff, as well as other officers or full- or part-time

employees of the U.S. government (as determined by the Attorney General, with the concurrence of the relevant

department head) with intelligence, counterterrorism, military, or legal expertise.

Executive Order 13491, “Ensuring Lawful Interrogations,” 74 Federal Register 4893, January 22, 2009; Executive

Order 13493, “Review of Detention Policy Options,” 74 Federal Register 4901, January 22, 2009. On July 20, 2009,

the Special Task Force on Detainee Disposition, which was required to issue a final report by July 21, 2009, “unless the

Co-Chairs determine that an extension is necessary,” extended by six months the period in which the Task Force will

conduct its work and submit a final report. The Task Force issued a preliminary report on the use of military

commissions to try wartime detainees (including those held at Guantanamo) and the process for determining the

appropriate forum for trials of suspected terrorists. Special Task Force on Detainee Disposition (Detention Policy Task

Force), “Preliminary Report,” July 20, 2009, available at http://www.scotusblog.com/wp/wp-content/uploads/2009/07/

law-of-war-prosecution-prelim-report-7-20-09.pdf. The Special Task Force on Interrogation and Transfer Policies

established by Executive Order 13491 issued recommendations to the President in August 2009. Department of Justice,

“Special Task Force on Interrogations and Transfer Policies Issues Its Recommendations to the President,” press

release, August 24, 2009, http://www.usdoj.gov/opa/pr/2009/August/09-ag-835.html.

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Closing the Guantanamo Detention Center: Legal Issues

Guantanamo detainees to the United States12). Ghailani was convicted and sentenced to life

imprisonment for his part in the conspiracy.13

On October 28, 2009, the National Defense Authorization Act for FY2010 (P.L. 111-81) was

signed into law, and modified rules governing military commissions. Soon thereafter, the

Departments of Justice and Defense made an announcement regarding the forums in which 10

other Guantanamo detainees, who had previously been charged before military commissions,

would be tried.14 The Attorney General and Secretary of Defense determined that military

commission proceedings against five Guantanamo detainees may be resumed15 However, the

Department of Justice stated that it intended to bring charges against five detainees in the U.S.

District Court for the Southern District of New York for criminal offenses related to the 9/11

terrorist attacks,16 and the charges brought before these individuals before military commissions

were withdrawn without prejudice in January 2010.17

The decision to try some Guantanamo detainees in federal civilian court proved controversial.

Plans to bring charges in federal court against Khalid Sheik Mohammed, the alleged mastermind

of the 9/11 attacks, were placed on hold until the Attorney General announced in April 2011 that

the Administration had reversed course and the 9/11 conspirators would be tried before military

commissions.18 The November 2010 conviction of Ahmed Ghailani for one of the more than 280

charges he faced in connection to the 1998 embassy bombings has fueled the debate over

terrorism trials. While some have characterized Ghailani’s conviction as demonstrating that

federal civilian courts serve as an appropriate forum for the prosecution of some Guantanamo

detainees, others view Ghailani’s acquittal of most charges as evidence that civilian courts are an

inappropriate forum for the criminal prosecution of wartime detainees.19

The Supplemental Appropriations Act, 2009 (P.L. 111-32), which was enacted within weeks of Ghailani’s transfer to

the United States, restricted the subsequent use of funds to transfer any detainee into the United States, except for

prosecution or detention during legal proceedings, provided that the executive fulfilled a 45-day reporting requirement

prior to any such transfer occurring. Later restrictions enacted after the Attorney General’s proposal to try the 9/11

conspirators in New York eliminated the exceptions to transfers to the United States, including that for prosecutions.

See, e.g., P.L. 112-81 §1027.

Benjamin Weiser, Ex-Detainee Gets Life Sentence in Embassy Blasts, WASH. POST, January 25, 2011. Ghailani is

appealing his conviction and sentence.

Department of Justice and Department of Defense, “Departments of Justice and Defense Announce Forum Decisions

for Ten Guantanamo Bay Detainees,” press release, November 13, 2009, http://www.justice.gov/opa/pr/2009/

November/09-ag-1224.html [hereinafter “DOJ Announcement”].

Id. In a legal brief filed with the D.C. Circuit in January 2010, the government noted that the Attorney General

decided that the prosecution of an additional detainee should occur before a military commission, and the convening

authority of military commissions must now decide whether to refer charges against the detainee to a military

commission. A copy of this brief is available at http://a.abcnews.go.com/images/Politics/Final_Brief.pdf.

These detainees are Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh,

Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi.

Dept. of Defense, “Military Commission Charges Withdrawn In Sept. 11 Case,” press release, January 22, 2010,

http://www.defense.gov/releases/release.aspx?releaseid=13262.

Vindicating Guantanamo, WALL ST. J. ONLINE, April 5, 2011. The Department of Defense announced that charges

have been sworn against the five accused 9/11 conspirators. Dept. of Defense, “DOD Announces Charges Sworn

Against Five Detainees Allegedly Responsible for 9/11 Attacks,” press release, May 31, 2011, http://www.defense.gov/

releases/release.aspx?releaseid=14532.

For more information about the Ghailani case, see CRS Report R41156, Judicial Activity Concerning Enemy

Combatant Detainees: Major Court Rulings, by (name redacted) and (name redacted).

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Closing the Guantanamo Detention Center: Legal Issues

On January 22, 2010, the Guantanamo Task Force issued its final report concerning the

appropriate disposition of each detainee held at Guantanamo. The Task Force concluded that 36

detainees remained subject to active criminal investigations or prosecutions; 48 detainees should

remain in preventive detention without criminal trial, as they are “too dangerous to transfer but

not feasible for prosecution”; and the remaining detainees could be transferred, either

immediately or eventually, to a foreign country.20

In December 2009, President Obama issued a memorandum directing the Attorney General and

Secretary of Defense to take steps to acquire the Thomson Correctional Facility in Thomson, IL,

so that at least some Guantanamo detainees may be relocated there for continued internment.21

Beginning in FY2011, however, Congress began including a provision in annual appropriations or

defense authorization enactments that barred funds from being used to construct or modify a

facility in the United States to house detainees who remain under the custody or control of the

Department of Defense (DOD).22 Although the Thomson facility was purchased in 2012,

Administration officials have averred that it will not be used to house Guantanamo detainees, but

instead serve to hold high-security prison inmates.23

Although the original deadline for the closure of the Guantanamo detention facility established by

Executive Order 13492 was not met, the Administration has stated that it still intends to close the

facility as expeditiously as possible. Efforts by the executive branch to close the facility have

been hampered by a series of congressional enactments limiting executive discretion to transfer or

release detainees into the United States, with the most significant limitations initially established

by the Ike Skelton National Defense Authorization Act for FY2011 (2011 NDAA; P.L. 111-383),

which was signed into law on January 7, 2011, and the Department of Defense and Full-Year

Continuing Appropriations Act, 2011 (2011 CAA; P.L. 112-10). By prohibiting funds from being

used to transfer or release detainees into the United States, or to assist in the transfer or release of

detainees into the country,24 these and subsequent similar acts seem to ensure that the

Guantanamo detention facility remains open for the foreseeable future. Moreover, the measures

Guantanamo Review Task Force, Final Report, January 22, 2010, available at http://www.justice.gov/ag/

guantanamo-review-final-report.pdf.

Presidential Memorandum Directing Certain Actions with Respect to Acquisition and Use of Thomson Correctional

Center to Facilitate Closure of Detention Facilities at Guantanamo Bay Naval Base, 75 Federal Register 1015,

December 15, 2009. Legislation was introduced to prevent the construction or modification of a U.S. facility to house

Guantanamo detainees. See H.R. 5822, Military Construction and Veterans Affairs and Related Agencies

Appropriations Act, 2011 (111th Cong.) (House-passed version), §516.

The first such prohibition is found in the Ike Skelton National Defense Authorization Act for FY2011 (2011 NDAA),

P.L. 111-383, §1034(a)-(b) and applied only to DOD funds for FY2011. Later versions of the prohibition found in

continuing appropriations legislation have extended it to all funds made available under any act. See Department of

Defense and Full-Year Continuing Appropriations Act, 2011 (2011 CAA), P.L. 112-10, §1114; Consolidated and

Further Continuing Appropriations Act, 2012 (2012 Minibus), P.L. 112-55, §533; Consolidated Appropriations Act,

2012 (2012 CAA), P.L. 112-74, Div. A, §8121, Div. H, §511; Consolidated and Further Continuing Appropriations

Act, 2013 (2013 CAA), P.L. 113-6, Div. B, §531, Div. C, §8111.

U.S. Congress, Senate Committee on the Judiciary, Oversight of the U.S. Department of Justice, 112th Cong., June

12, 2012 (statement by Attorney General Holder, in response to question by Sen. Durbin, pledging not to use the

Thomson facility to house Guantanamo detainees).

2011 NDAA, P.L. 111-383, §1032 (prohibiting the use of military funds to transfer or assist in the transfer or release

of Guantanamo detainees into the United States); 2011 CAA, P.L. 112-10, §1112 (barring the use of funds appropriated

or otherwise made available by the 2011 CAA or any other act); 2012 Minibus, P.L. 112-55, §532; 2012 CAA, P.L.

112-74, Div. A, §8119, Div. D, §542; National Defense Authorization Act for FY2012 (2012 NDAA), P.L. 112-81,

§1027; 2013 CAA, P.L. 113-6, Div. B, §530, Div. C, §8109; National Defense Authorization Act for FY2013 (2013

NDAA), P.L. 112-239, §1027.

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Closing the Guantanamo Detention Center: Legal Issues

appear to make military tribunals the only viable forum by which Guantanamo detainees could be

tried for criminal offenses, as no civilian court operates within Guantanamo. When signing each

of these measures into law, President Obama issued a statement expressing his opposition to those

provisions limiting executive discretion to transfer detainees into the United States or to the

custody of certain foreign governments or entities.25 While highly critical of these provisions’

effect, President Obama’s signing statements did not allege that the restrictions on transfers to the

United States represented an unconstitutional infringement upon executive authority, or claim that

the executive branch was not legally bound to comply with the provisions’ requirements.26

President Obama did, however, state that his “Administration will work with the Congress to seek

repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to

extend or expand them in the future.”27

On March 7, 2011, President Obama issued Executive Order 13567, establishing a process for the

periodic review of the continued detention of persons currently held at Guantanamo who have

either been (1) designated for preventive detention under the laws of war or (2) referred for

criminal prosecution, but have not been convicted of a crime and do not have formal charges

pending against them.28 The Executive Order establishes a Periodic Review Board (PRB) to

assess whether the continued detention of a covered individual is warranted in order “to protect

against a significant threat to the security of the United States.” In instances where a person’s

continued detention is not deemed warranted, the Secretaries of State and Defense are designated

responsibility “for ensuring that vigorous efforts are undertaken to identify a suitable transfer

location for any such detainee, outside of the United States, consistent with the national security

and foreign policy interests of the United States” and relevant legal requirements. An initial

review of each individual covered by the Order, which involves a hearing before the PRB in

which the detainee and his representative may challenge the government’s basis for his continued

detention and introduce evidence on his own behalf, must occur within a year of the Order’s

issuance. Those persons deemed to be subject to continued detention will have their cases

In a statement issued upon signing the 2011 NDAA into law, President Obama expressed concern that the provision

limiting detainee transfers into the United States “represents a dangerous and unprecedented challenge to critical

executive branch authority to determine when and where to prosecute Guantanamo detainees….” White House Office

of the Press Secretary, Statement by the President on H.R. 6523, January 7, 2011, available at

http://www.whitehouse.gov/the-press-office/2011/01/07/statement-president-hr-6523 [hereinafter “Presidential Signing

Statement on the 2012 NDAA”]. He further stated that the provision limiting executive discretion to transfer detainees

to the custody of foreign entities would “interfere with the authority of the executive branch to make important and

consequential foreign policy and national security determinations” regarding the transfer of persons captured in an

armed conflict. See also White House Office of the Press Secretary, Statement by the President on H.R. 1473, April 15,

2011, available at http://www.whitehouse.gov/the-press-office/2011/04/15/statement-president-hr-1473 (disapproving

of similar restrictions on detainee transfers established by the 2011 CAA). On signing more comprehensive measures

into law as part of the 2012 NDAA, however, the President argued that some application of the restrictions might

violate constitutional separation of powers principles, in particular the bar on detainee transfers to the United States in

Sections 1027 and 1028 curtailing the President’s authority to transfer detainees abroad. White House, Office of the

Press Secretary, Statement by the President on H.R. 1540, December 31, 2011, available at

http://www.whitehouse.gov/the-press-office/2011/12/31/statement-president-hr-1540. For more information about

detainee measures in the 2012 and 2013 NDAA, see CRS Report R42143, The National Defense Authorization Act for

FY2012 and FY2013: Detainee Matters, by (name redacted) and (name redacted).

For discussion of the legal effect of presidential signing statements, see CRS Report RL33667, Presidential Signing

Statements: Constitutional and Institutional Implications, by (name redacted).

Presidential Signing Statement on the 2012 NDAA, supra footnote 25.

Executive Order 13567, “Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to

Authorization to Use Military Force,” 76 Federal Register 13277, March 10, 2011 [hereinafter “Executive Order on

Periodic Review”].

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reviewed periodically thereafter. The Order also specifies that the process it establishes is

discretionary; does not create any additional basis for detention authority or modify the scope of

authority granted under existing law; and is not intended to affect federal courts’ jurisdiction to

determine the legality of a person’s continued detention.

On the same day that Executive Order 13567 was issued, the White House also released a

statement concerning matters relevant to U.S. detention policy generally and to Guantanamo

specifically.29 Among other things,30 the statement reaffirmed the executive’s commitment to

close the Guantanamo detention facility. The statement also announced that the Secretary of

Defense would authorize the swearing and referring of new charges to military commissions—a

practice which had been halted following the issuance of Executive Order 13492 in January 2009.

The White House statement also reaffirmed the Administration’s commitment to prosecute some

detainees in Article III courts, and declared that it would work to repeal legislation that bars it

from transferring detainees into the country for trial before civilian courts.

Congress has enacted similar restrictions as part of subsequent defense authorization legislation

and other measures. The National Defense Authorization Act of FY2012, P.L. 112-81, authorizes

the detention of certain categories of persons and requires the military detention of a subset of

them (albeit not necessarily in Guantanamo and subject to waiver by the President); regulates

status determinations for persons held pursuant to the AUMF, regardless of location; regulates

periodic review proceedings concerning the continued detention of Guantanamo detainees; and

continues funding restrictions that relate to Guantanamo detainee transfers to foreign countries.

Despite an earlier threat to veto the bill,31 President Obama signed the 2012 NDAA into law while

issuing a signing statement claiming that certain of its detainee-related restrictions violate

separation-of-powers principles.32 Congress continued the funding restrictions on transfers of

detainees from Guantanamo in the National Defense Authorization Act for FY2013 (2013

NDAA), P.L. 112-239.33 President Obama objected to these provisions in a signing statement,

White House, Office of the Press Secretary, “Fact Sheet: New Actions on Guantanamo and Detainee Policy,” March

7, 2011, available at http://www.whitehouse.gov/the-press-office/2011/03/07/fact-sheet-new-actions-guant-namo-anddetainee-policy.

The statement also described the Administration’s view regarding the 1977 Additional Protocols to the 1949 Geneva

Conventions. While the United States is a party to all four of the 1949 Conventions, it has not ratified either of the 1977

Additional Protocols. The Administration announced its support for the ratification of the Additional Protocol Relating

to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), which was submitted to the

Senate in 1987 for its advice and consent but has not been agreed upon by the body. The Obama Administration also

announced that, while opposing aspects of the Additional Protocol Relating to the Protection of Victims of

International Armed Conflicts (Protocol I), it would nonetheless “choose out of a sense of legal obligation to treat the

principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict,”

presumably due to a belief that the principles contained in Article 75 reflect customary international law. Article 75

establishes fundamental guarantees for the treatment of persons captured by opposing forces in an international armed

conflict, including rights associated with a fair trial. According the White House statement, the requirements contained

in Additional Protocol II and Article 75 of Additional Protocol I are consistent with current U.S. policies and practices.

See Exec. Office of the Pres., Statement of Administration Policy on H.R. 1540 (May 24, 2011), available at

http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr1540r_20110524.pdf (objecting in

particular to Section 1039 [barring transfer of detainees to the United States] as a “dangerous and unprecedented

challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts

and the circumstances of each case and our national security interests”). At the time these objections were made public,

the bill did not yet contain the provision requiring military commission trials.

Presidential Signing Statement on H.R. 1540, supra footnote 25.

P.L. 112-239, §§1022 (prohibition of funds to construct or modify detention facilities in U.S. territory), 1027 (barring

detainee transfers into the United States), and 1028 (restricting detainee transfers to other countries).

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complaining that “The Congress designed these sections, and has here renewed them once more,

in order to foreclose my ability to shut down the Guantanamo Bay detention facility. I continue to

believe that operating the facility weakens our national security by wasting resources, damaging

our relationships with key allies, and strengthening our enemies.”34

The President also charged that the restrictions could violate the Constitution:

My Administration will interpret these provisions as consistent with existing and future

determinations by the agencies of the Executive responsible for detainee transfers. And, in

the event that these statutory restrictions operate in a manner that violates constitutional

separation of powers principles, my Administration will implement them in a manner that

avoids the constitutional conflict.35

The President reiterated his intention to work toward the closure of Guantanamo in remarks he

made at a press conference on April 30, 2013.36 Criticizing the Guantanamo detention policy as

counterproductive in terms of international support for counterterrorism efforts and as providing a

recruiting tool for extremists, he stated that his Administration would review possible

administrative actions and reengage with Congress to bring about the closure of the detention

facility.37

The closure of the Guantanamo detention facility would raise a number of legal issues with

respect to the individuals presently interned there, particularly if those detainees were transferred

to the United States. The nature and scope of constitutional protections owed to detainees within

the United States may be different from those available to persons held at Guantanamo or

elsewhere. This may have implications for the continued detention or prosecution of persons

transferred to the United States. The transfer of detainees to the United States may have additional

consequences, as some detainees might qualify for asylum or other protections under immigration

law. The Executive Order issued by President Obama to effectuate the closure of Guantanamo

also contemplates that the Administration “work with Congress on any legislation that may be

appropriate” relating to the transfer of detainees to the United States.38

This report provides an overview of major legal issues that are likely to arise in the event of

executive and legislative action to close the Guantanamo detention facility. It discusses legal

issues related to the transfer or release of Guantanamo detainees (either to a foreign country or

into the United States), the continued detention of such persons in the United States, and the

possible removal of persons brought to the United States. It considers selected constitutional

issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and

substantive protections that exist in different adjudicatory forums. Issues discussed include

detainees’ right to a speedy trial, the prohibition against prosecution under ex post facto laws, and

limitations upon the admissibility of hearsay and secret evidence in criminal cases. These issues

White House, Office of the Press Secretary, Statement by the President on H.R. 4310, available at

http://www.whitehouse.gov/the-press-office/2013/01/03/statement-president-hr-4310.

Id.

See Charlie Savage, Amid Hunger Strike, Obama Renews Push to Close Cuba Prison, NY TIMES, May 1, 2013, at

A1.

Id. A transcript of the President’s remarks is available online at http://www.nytimes.com/2013/05/01/us/politics/

transcript-of-obamas-news-conference.html?ref=us.

Executive Order, supra footnote 9, at §4(c)(5).

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are likely to be relevant not only to the treatment of Guantanamo detainees, but also to other

terrorist suspects or enemy belligerents apprehended by the United States in the future.

Detainee Transfer or Release from Guantanamo

Any proposal to close the Guantanamo detention facility must necessarily address the transfer of

persons currently detained there. While some detainees may be transferred to other countries for

continued detention, supervision, or release, some proposals to close the Guantanamo detention

facility have contemplated transferring at least some detainees to the United States, either for

continued detention or, in the case of some detainees who are not considered a threat to U.S.

security, possible release.39

Transfer/Release of Guantanamo Detainees to a Country Other

Than the United States

The vast majority of persons initially transferred to Guantanamo for preventive detention have

been transferred to other countries, either for continued detention by the receiving country or for

release.40 Decisions to transfer a detainee to another country have been based upon a

determination by U.S. officials that (1) the detainee is not an enemy combatant or (2) while the

detainee was properly designated as an enemy combatant, his continued detention by the United

States is no longer warranted.41 A decision by military authorities that the continued detention of

an enemy combatant is no longer appropriate is based on a number of factors, including a

determination that the detainee no longer poses a threat to the United States and its allies.

Generally, if continued detention is no longer deemed necessary, the detainee is to be transferred

to the control of another government for his release.42 The DOD has also transferred enemy

belligerents to other countries for continued detention, investigation, or prosecution when those

Initially, the Obama Administration considered the possibility of releasing at least some Guantanamo detainees who

are not considered a threat into the United States. See Director of National Intelligence Dennis Blair, “Media

Roundtable Discussion,” March 26, 2009, available at http://www.dni.gov/interviews/20090326_interview.pdf.

Congress subsequently enacted a series of appropriations and authorization measures that barred funds from being used

to release Guantanamo detainees into the United States or specified U.S. territories. See P.L. 111-32, §14103(a); P.L.

111-84, §1041(a); P.L. 111-83, §552(a); P.L. 111-88, §428(a); P.L. 111-117, §532(a); P.L. 111-118, §9011(a). Most of

these restrictions concerned funds appropriated for the 2010 fiscal year. Through the enactment of a series of

continuing resolutions which temporarily fund federal agencies, Congress has effectively extended the restrictions

imposed by FY2010 appropriation enactments. Further, the 2011 NDAA bars military funds appropriated for the 2011

fiscal year from being used either to release a detainee into the United States, or to assist in the release of a detainee

into the country. P.L. 111-383, §1032. The 2011 CAA imposed similar funding restrictions upon other government

agencies for the 2011 fiscal year. P.L. 112-10, §1112.The 2012 NDAA and 2013 NDAA have continued the ban

through FY2013. See P.L. 112-81, §1027 and P.L. 112-239, §1027. Other government agencies are covered in various

continuing appropriations measures. See supra footnote 24.

See Guantanamo Docket, supra footnote 3.

Declaration of Joseph Benkert, Principal Deputy Assistant Secretary of Defense for Global Security Affairs, DOD,

executed on June 8, 2007, at para. 3, In re Guantanamo Bay Detainee Litigation, Case No. 1:05-cv-01220 (D.D.C.

2007); Guantanamo Task Force Report, supra footnote 20, at 16-17 (discussing criteria used by Guantanamo Task

Force when determining whether a detainee was eligible for transfer).

Benkert Declaration, supra footnote 41.

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governments are willing to accept responsibility for ensuring that the transferred person will not

pose a continuing threat to the United States and its allies.43

On March 7, 2011, President Obama issued Executive Order 13567, which establishes a process

to periodically review whether the continued detention of a lawfully held Guantanamo detainee is

warranted. The Order provides that a Periodic Review Board (PRB), composed of officials from

several departments and agencies,44 shall review the grounds for the continued detention of any

person currently held at Guantanamo who has either been (1) designated as being subject to

detention under the laws of war (i.e., a captured enemy belligerent) or (2) referred for criminal

prosecution, but has yet to be formally charged with an offense.45 The Order also establishes a

Review Committee, composed of relevant department heads and officials,46 to annually review

the sufficiency and efficacy of transfer efforts. Following the completion of the PRB’s initial

review of the disposition of detainees, and every four years thereafter, the Committee is also

charged with assessing “whether a continued law of war detention policy remains consistent with

the interests of the United States, including national security interests.”47

The PRB is required to assess whether the continued detention of any person covered by the

Order “is necessary to protect against a significant threat to the security of the United States.” In

cases where the continued detention of a Guantanamo detainee is not deemed warranted, the

Secretaries of State and Defense are charged with “ensuring that vigorous efforts are undertaken

to identify a suitable transfer location for any such detainee, outside of the United States,”

consistent with U.S. obligations not to transfer persons to countries where they may face torture.48

The PRBs were to begin reviewing the grounds for the continued detention of covered individuals

within a year of the issuance of Executive Order 13567;49 however, this process has not yet

begun,50 possibly delayed due to new requirements for status reviews imposed under Section

Id. In April 2010, a federal habeas court dismissed on mootness grounds the petitions of 105 former Guantanamo

detainees, including some who were transferred to the custody of a foreign country for further detention, on the grounds

that such persons were no longer “in custody under or by color of the authority of the United States,” as is required for

a court to exercise jurisdiction under the federal habeas statute. In re Petitioners Seeking Habeas Corpus Relief In

Relation To Prior Detentions At Guantanamo Bay, 700 F. Supp. 2d 119 (D.D.C. 2010) (Hogan, J.). In reaching this

decision, the habeas court placed significant weight upon government declarations that the United States relinquishes

complete custody and control over detainees when they are transferred into the hands of foreign governments.

The Executive Order provides that the PRB shall be composed of “senior officials…, one appointed by each of the

following departments and offices: the Departments of State, Defense, Justice, and Homeland Security, as well as the

Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.” Executive Order on

Periodic Review, supra footnote 28, at §9(b).

Id. at §1(a). Accordingly, the review would not cover persons who have been determined not to be lawfully detained

(e.g., those who have been ordered released by a federal habeas court) who remain in U.S. custody pending their

repatriation or resettlement to a foreign country.

Specifically, the Review Committee is composed of the Secretary of State, the Secretary of Defense, the Attorney

General, the Secretary of Homeland Security, the Director of National Intelligence, and the Chairman of the Joint

Chiefs of Staff. Id. at §9(d).

Id. at §5(b).

Id. at §4(a).

Id. at §3(a).

Press Release, Human Rights First, Two Years After Executive Order, Guantanamo Periodic Review Board

Proceedings Yet to Begin (March 6, 2013), available at http://www.humanrightsfirst.org/2013/03/06/two-years-afterexecutive-order-guantanamo-periodic-review-board-proceedings-yet-to-begin/.

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1023 of the 2012 NDAA.51 The Pentagon published implementing guidelines for the PRB process

in May 2012.52

Under the Order, the individual undergoing a review is to be provided with an unclassified

summary of the factors and information to be considered by the PRB.53 A hearing is then to be

held in which the detainee, with assistance from a government-appointed representative (along

with private counsel, if obtained by the detainee at no expense to the government), may argue that

his continued detention is unwarranted.54 The detainee has a right to present a statement to the

PRB, introduce relevant information, and to call willing and reasonably available witnesses to

provide information on his behalf.55 The detainee’s representative, who generally is to be

provided with all information contained in the government’s disposition recommendation to the

PRB (or in certain circumstances, a sufficient substitute or summary of such information), is

authorized to challenge the government’s information and present information in support of the

detainee.56 If the PRB’s initial review does not result in the individual being designated for

transfer, the PRB will continue to periodically review the grounds for continued detention,

through a review of case files every six months thereafter. Further, it must conduct a full review

and hearing every three years following its initial review.57 If the PRB does not reach a

unanimous conclusion as to whether a detainee’s continued detention is warranted, the case shall

be considered by the Review Committee for further review;58 however, the Order does not

explain the procedures used by the Review Committee in its consideration of PRB decisions, or

clearly describe the effect that its review has upon the final disposition of a detainee’s case.59

The designation of a Guantanamo detainee for transfer or release does not necessarily mean that

the individual’s removal from the Guantanamo facility will be immediately effectuated. Domestic

and international legal requirements may constrain the ability of the United States to transfer

persons to foreign countries if they might face torture or other forms of persecution. Most

notably, Article 3 of the U.N. Convention against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment (CAT) and its implementing legislation prohibit the transfer

of persons to countries where there are substantial grounds for believing (i.e., it would be “more

It has also been suggested that delays have been caused by disagreement over how to handle evidence elicited

through torture. See Savage, supra footnote 36.

Directive Type Memorandum (DTM) 12-005, Implementing Guidelines for Periodic Review of Detainees Held at

Guantanamo Bay per Executive Order 13567 [hereinafter “PRB Implementing Guidelines”], available at

http://www.dtic.mil/whs/directives/corres/pdf/DTM-12-005.pdf.

Executive Order on Periodic Review, supra footnote 28, at §3(a)(1).

Id. at §3(a)(2).

Id. at §3(a)(3).

Id. at §3(a)(2). The Order provides that the government-appointed representative must have appropriate security

clearance. A PRB may permit a government-appointed representative to be provided with a summary or substitute for

government information only in “exceptional circumstances where it is necessary to protect national security, including

intelligence sources and methods.” A substitute or summary may be provided to private counsel in lieu of underlying

government information in a broader range of circumstances, including when the government, rather than the PRB,

“determines that the need to protect national security, including intelligence sources and methods, or law enforcement

or privilege concerns” warrants such action.

Id. at §3(b)-(c).

Id. at §3(d). Neither the government nor the detainee is granted a right to appeal PRB rulings to the Review

Committee.

For example, it is unclear whether the Review Committee’s consideration of a detainee’s continued detention would

necessarily result in a final determination as to whether continued detention is warranted, or whether the Committee

might remand the case to the PRB for further consideration of a particular issue or piece of evidence.

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likely than not”) that they would be subjected to torture.60 The Bush Administration took the

position that CAT Article 3 and its implementing legislation did not cover the transfer of foreign

persons held outside the United States in the “war on terror.”61

Nonetheless, both the Bush and Obama Administrations have stated that “it is the policy of the

United States, consistent with the approach taken by the United States in implementing ... [CAT],

not to repatriate or transfer ... [Guantanamo detainees] to other countries where it believes it is

more likely than not that they will be tortured.”62 When the transfer of a Guantanamo detainee is

deemed appropriate, the United States seeks diplomatic assurances that the person will be treated

humanely by the foreign government accepting the transfer. If such assurances are not deemed

sufficiently reliable, the transfer will not be executed until the concerns of U.S. officials are

satisfactorily resolved.63 The use of diplomatic assurances in Guantanamo transfer decisions is

similar to the practice sometimes employed by U.S. authorities when determining whether the

extradition of a person or the removal of an alien by immigration authorities would comply with

CAT requirements. In January 2009, President Obama issued an Executive Order creating a

special task force to review U.S. transfer policies to ensure compliance with applicable legal

requirements.64 In August of that year, the task force issued recommendations to ensure that U.S.

transfer practices comply with applicable standards and do not result in the transfer of persons to

face torture.65 These recommendations include strengthening procedures used to obtain

assurances from a country that a person will not face torture if transferred there, including

through the establishment of mechanisms to monitor the treatment of transferred persons. If

implemented, such measures might impede the transfer of some Guantanamo detainees to third

countries. In April 2009, a D.C. Circuit panel held that a government determination that a

detainee would not be tortured if transferred to a particular country is not subject to district court

review in habeas proceedings challenging the proposed transfer.66

Of the persons held at Guantanamo who have been cleared for transfer or release, even prior to

the enactment of statutory restrictions, several dozen remained at Guantanamo either because no

country was willing to accept the detainee, or because human rights concerns have caused the

United States to refrain from transferring the detainee to a country willing to accept him.

According to the final report of the Guantanamo Task Force, a plurality of detainees who have

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46,

Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984). CAT Article 3 requirements were implemented by

the United States pursuant to the Foreign Affairs Reform and Restructuring Act of 1998, P.L. 105-277 [hereinafter

“FARRA”]. For further background, see CRS Report RL32276, The U.N. Convention Against Torture: Overview of

U.S. Implementation Policy Concerning the Removal of Aliens, by (name redacted).

United States Written Response to Questions Asked by the Committee Against Torture, April 28, 2006, available at

http://www.state.gov/g/drl/rls/68554.htm.

Benkert Declaration, supra footnote 41, at para. 6. See also Guantanamo Task Force Report, supra footnote 20, at 15

n.11.

Benkert Declaration, supra footnote 41, para. 7. The PRB Implementing Guidelines, supra footnote 52, state that

they are to be implemented consistent with CAT.

Executive Order No. 13491, “Ensuring Lawful Interrogations,” 74 Federal Register 4893, January 22, 2009.

Department of Justice, “Special Task Force on Interrogations and Transfer Policies Issues Its Recommendations to

the President,” press release, August 24, 2009, http://www.usdoj.gov/opa/pr/2009/August/09-ag-835.html. The Task

Force considered seven types of transfers: extradition, immigration removal proceedings, transfers pursuant to the

Geneva Conventions, transfers from Guantanamo Bay, military transfers within or from Afghanistan, military transfers

within or from Iraq, and transfers pursuant to intelligence authorities.

Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (“Kiyemba II”), rehearing en banc denied (July 27, 2009), cert.

denied, 130 S. Ct. 1880 (2010).

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been cleared for transfer but remain at Guantanamo “cannot be repatriated due to humane

treatment or related concerns in their home countries … and thus need to be resettled in a third

country....”67

Additionally, a significant number of detainees could potentially be transferred to other countries

for continued detention or supervision if the United States was assured that the receiving country

could manage the threat they pose.68 In January 2010, President Obama announced that, in light

of terrorist activities emanating from Yemen, including alleged involvement by Yemeni nationals

in the failed 2009 bomb attack on an airplane that was landing in Detroit, the United States “will

not be transferring additional detainees back to Yemen at this time.”69 The final report of the

Guantanamo Task Force identified 30 detainees from Yemen who

were designated for “conditional” detention based on the current security environment in that

country. They are not approved for repatriation to Yemen at this time, but may be transferred

to third countries, or repatriated to Yemen in the future if the current moratorium on transfers

to Yemen is lifted and other security conditions are met.70

On May 23, 2013, President Obama announced that the moratorium on detainee transfers to

Yemen would be lifted, and the feasibility of such transfers would be reviewed on a case-by-case

basis.71

Whether future diplomatic efforts will effectuate the transfer of some or all of these persons to

third countries remains to be seen. It has been reported that the U.S. refusal to resettle detainees

on its territory may be contributing to the reluctance of other countries to accept more detainees

for resettlement.72

Beginning with the Supplemental Appropriations Act, 2009 (P.L. 111-32), Congress passed

several appropriations or authorization measures that contained provisions barring funds from

being used to effectuate the transfer of a Guantanamo detainee to a foreign State unless, 15 days

prior to such transfer, the President submits a classified report to Congress concerning the identity

of the detainee, the risk the transfer poses to U.S. security, and the terms of any agreement with

Guantanamo Task Force Report, supra footnote 20, at 16.

For example, the United States had negotiations with Yemen to transfer a significant number of Guantanamo

detainees who are Yemeni nationals to that country. These negotiations have reportedly proven unsuccessful in part

because of U.S. concerns regarding the sufficiency of Yemeni measures to minimize the threat posed by some

detainees. Brookings Report, supra footnote 3, at 22-23; Matt Apuzzo, “‘No Progress’ on Mass Guantanamo Prisoner

Transfer,” USA Today, July 7, 2008. In January 2010, President Obama announced that, in light of the recent terrorist

activities emanating from Yemen, including alleged Yemeni involvement in the failed Christmas Day bomb attack on

an airline landing in Detroit, the United States “will not be transferring additional detainees back to Yemen at this

time.” White House, Office of the Press Secretary, “Remarks by the President on Security Reviews,” January 5, 2010,

available at http://www.whitehouse.gov/the-press-office/remarks-president-security-reviews. On May 23, 2013,

President Obama announced the lifting of this moratorium.

White House, Office of the Press Secretary, “Remarks by the President on Security Reviews,” January 5, 2010,

available at http://www.whitehouse.gov/the-press-office/remarks-president-security-reviews.

Guantanamo Task Force Report, supra footnote 20, at ii.

White House, Office of the Press Secretary, “Remarks of President Barack Obama,” May 23, 2012, available at

http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-barack-obama.

Carol Rosenberg, How Congress helped thwart Obama’s plan to close Guantánamo, MIAMI HERALD, January 22,

2011, online edition.

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the receiving country concerning the acceptance of the individual, including any financial

assistance related to the agreement.73

Despite President Obama’s objections,74 the 2011 NDAA placed more significant restrictions on

detainee transfers. The act provides that, except in cases when a detainee transfer is done to

effectuate an order by a U.S. court or tribunal,75 a detainee may only be transferred to the custody

or control of a foreign government or the recognized leadership of a foreign entity if, at least 30

days prior to the proposed transfer, the Secretary of Defense certifies to Congress that the foreign

government or entity (1) is not a designated state sponsor of terrorism or terrorist organization;

(2) maintains effective control over each detention facility where a transferred detainee may be

housed; (3) is not facing a threat likely to substantially affect its ability to control a transferred

detainee; (4) has agreed to take effective steps to ensure that the transferred person does not pose

a future threat to the United States, its citizens, or its allies; (5) has agreed to take such steps as

the Secretary deems necessary to prevent the detainee from engaging in terrorism; and (6) has

agreed to share relevant information with the United States related to the transferred detainee that

may affect the security of the United States, its citizens, or its allies.76 Nearly identical

certification requirements are found in the 2011 CAA,77 the 2012 NDAA,78 and 2013 NDAA,79 as

well as two continuing appropriations measures.80

The 2011 NDAA and CAA also prohibited the transfer of any detainee to the custody or control

of a foreign government or entity if there is a confirmed case that a former Guantanamo detainee

who was transferred to that government or entity subsequently engaged in terrorist activity.81

However, these restrictions were subject to waiver by the Secretary of Defense if he fulfilled the

certification process described in the preceding paragraph and also determined that the transfer is

in the security interests of the United States.82 The prohibitions also did not apply in cases where

a transfer is done to effectuate an order by a U.S. court or tribunal. These prohibitions were

continued in subsequent legislation.83

Current restrictions are found in the 2013 NDAA84 and 2013 CAA,85 and are substantially

identical to those passed in the 2011 NDAA.86 These provisions restrict the use of funds (NDAA

P.L. 111-32, §14103(e); P.L. 111-83, §552(e); P.L. 111-88, §428(e); P.L. 111-117, §532(e); P.L. 111-118, §9011(e).

See Presidential Signing Statement, supra footnote 25.

This would presumably include a federal habeas court order that a detainee must be released from military custody.

P.L. 111-383, §1033(a)-(b).

P.L. 112-10, §1013.

P.L. 112-81, §1028.

P.L. 112-239, §1028.

2012 CAA, P.L. 112-74, Div. A, §8120; 2013 CAA, P.L. 113-6, §8110.

P.L. 111-383, §1033(c) (imposing a one-year prohibition on such transfers); P.L. 112-10, §1013(c) (imposing a

restriction on such transfers when effectuated using funds appropriated or made available by the 2011 CAA or any

earlier act).

P.L. 111-383, §1033(c); P.L. 112-10, §1013(c).

The 2012 NDAA also applied the restrictions on transfer to foreign countries or entities to transfers of “covered

persons” whose detention is required by Section 1022 of that statute, notwithstanding location of the detention (that is,

for those detained outside of Guantanamo). P.L. 112-81, §§1022 & 1028. The restriction is not tied to funds, but is

waivable in the interest of national security. Id. §1022.

P.L. 112-239, §1028 (bars funds available to DOD for FY2013).

P.L. 113-6, §8110 (bars funds available under “this or any other Act”).

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funds or funds under any act, respectively) to transfer a detainee to a foreign country or entity

unless the Secretary of Defense certifies, with the agreement of the Secretary of State and in

consultation with the Director of National Intelligence, that

(1) 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—

(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 ... ;

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—

(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.

The prohibition on transferring detainees to any country or entity that has experienced a case of

“prior confirmed recidivism,” subject to limited waiver, is also continued. The certification

requirements and recidivism prohibition do not apply in the case of a detainee who must be

released or transferred pursuant to a court order or, in the case of 2013 CAA provision, a plea

agreement under a military commission entered prior to enactment of the CAA. A few detainees

have been transferred under this exception.

The Secretary of Defense may waive two of the certification requirements and the recidivism

prohibition if alternate assurances can be arranged. Specifically, the requirements of D and E

above (regarding agreements by the recipient country to implement measures to prevent the

detainee from posing a threat or reengaging in terrorist or militant behavior) may be waived, as

(...continued)

The 2013 NDAA provision differs from previous versions in that it (1) eliminates the exception for transfers pursuant

to a plea agreement at a military commission (although this might effectively be covered by the exception for transfers

pursuant to the order of a competent tribunal); and (2) provides that the Secretary of Defense may give favorable

consideration to detainees who have substantially cooperated with U.S. intelligence or law enforcement officials

pursuant to a plea agreement and arrangements are made for the continuation of such cooperation after the transfer. The

2013 CAA does not contain these changes.

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can the prohibition regarding countries with confirmed prior recidivism, if the Secretary of

Defense, with the concurrence of the Secretary of State and in consultation with the Director of

National Intelligence, certifies that (1) all of the other certifications requirements are met; (2)

alternative measures to D and E are put in place to avert the threats; and (3) the national security

interests of the United States are served by permitting the transfer to go forward. The national

security waiver for the certification requirements additionally requires a certification that “it is

not possible to certify that the risks addressed in the paragraph to be waived have been

completely eliminated,” but that the alternative actions to be taken will “substantially mitigate

such risks with regard to the individual to be transferred.” A waiver of the recidivism prohibition

requires an additional certification that the Secretary has considered any case of recidivism

associated with the destination country or entity and that the alternative measures will mitigate

any risk with respect to the individual to be transferred. The certification requirements involving

security conditions in the recipient country or entity, its ability to maintain control over detention

facilities, and its status as a supporter of terrorism may not be waived.

Transfer of Detainees into the United States

Most proposals to end the detention of foreign belligerents at Guantanamo contemplate the

transfer of at least some detainees into the United States, either for continued preventive

detention, prosecution before a military or civilian court, or in the case of detainees who are not

deemed a threat to U.S. security, possible release. As mentioned earlier, several appropriations

and authorization measures enacted by Congress have barred funds from being used to effectuate

the release of Guantanamo detainees into the United States. Moreover, Congress has enacted

several measures barring funds from being used to transfer detainees into the United States or its

territories or possessions; the most significant beginning in the 2011 NDAA and CAA, which bar

funds appropriated during the 2011 fiscal year from being used to transfer detainees into the

United States for any purpose.87 These restrictions have continued through the 2013 NDAA and

CAA without modification.88

The transfer of detainees into the United States may have implications under immigration law.

The Immigration and Nationality Act (INA) establishes rules and requirements for the entry and

presence of aliens in the United States, and provides grounds for the exclusion or removal of

aliens on account of certain activities. The INA generally bars the entry into the United States or

continued presence of aliens involved in terrorism-related activity.89 Under current law, most

persons currently detained at Guantanamo would generally be barred from admission into the

United States on terrorism- and other security-related grounds under normal circumstances. Even

if a detainee is not inadmissible or removable (“deportable”) on such grounds, he may still be

inadmissible or removable under other INA provisions.90 Accordingly, even in the absence of

recent legislative enactments barring the use of funds to release Guantanamo detainees into the

United States, the INA would generally preclude most detainees from being released into the

country, as such aliens would be subject to removal under immigration law.

P.L. 111-383, §1032 (applying to military funds); P.L. 112-10, §1012 (applying to any funds appropriated by the

2011 CAA or any prior act).

P.L. 112-55, §532; P.L. 112-74, Div. A, §8119, Div. D, §542; P.L. 112-81, §1027; P.L. 113-6, Div. B, §530, Div. C,

§8109; P.L. 112-239, §1027.

8 U.S.C. §1182(a)(3); 8 U.S.C. §1227(a)(4). For background, see CRS Report RL32564, Immigration: Terrorist

Grounds for Exclusion and Removal of Aliens, by (name redacted) and (name redacted).

See 8 U.S.C. §1182 (grounds for alien inadmissibility); 8 U.S.C. §1227 (grounds for deportation).

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The INA’s restrictions upon the entry of certain categories of aliens do not appear to necessarily

bar executive authorities from transferring wartime detainees into the United States for continued

detention or prosecution. During World War II, reviewing courts did not consider an alien

prisoner of war’s involuntary transfer to the United States for purposes of military detention to

constitute an “entry” under immigration laws.91 Although immigration laws have been amended

since that time to expressly apply to certain categories of aliens involuntarily brought to the

United States (e.g., those individuals apprehended in U.S. or international waters),92 these

modifications do not directly address the ability of the United States to intern alien enemy

belligerents in the United States. Additionally, it could be argued that the 2001 AUMF, which

grants the President authority to use all “necessary and appropriate force” against those

responsible for the 9/11 attacks, impliedly authorizes the President to detain captured belligerents

in the United States, even though such persons would generally be barred from entry under the

INA.93

Even assuming that the INA’s restrictions on alien admissibility are applicable to military

detainees, the executive branch could still effectuate their transfer into the United States pursuant

to its “parole” authority. In the immigration context, parole is a discretionary authority that may

be exercised on a case-by-case basis to permit inadmissible aliens to physically enter the United

States, including when the alien’s entry or stay serves a “significant public benefit.”94 The entry

See United States ex rel. Bradley v. Watkins, 163 F.2d 328 (2d Cir. 1947) (alien involuntarily brought to the United

States by U.S. warship for detention had not “departed” a foreign port within the meaning of Immigration Act of 1924

provision defining an “immigrant”); In re Territo, 156 F.2d 142, 145-146 (9th Cir. 1946) (“It is proper to note that

petitioner was brought to this country under a war measure by orders of the military authorities as a prisoner of war and

not in accord with nor under the immigration laws limiting and regulating entries of residents or nationals of another

nation.”). Subsequent developments in immigration law, including with respect to alien eligibility for asylum and

deferral of removal under CAT-implementing regulations, may nonetheless have implications for the transfer of alien

detainees into the United States, particularly if they must be released from military custody. See infra at “Transfer of

Detainees into the United States” and “Removal of Detainees from the United States.”

As amended in 1996, the INA now provides that “An alien present in the United States who has not been admitted or

who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to

the United States after having been interdicted in international or United States waters) shall be deemed for purposes

of this Act an applicant for admission.” 8 U.S.C. §1225(a)(1) (emphasis added). In an unpublished opinion, the Board

of Immigration Appeals (BIA), the highest administrative body responsible for interpreting and applying immigration

laws, interpreted the 1996 amendment to the INA as overruling earlier circuit court jurisprudence (including WWII-era

cases concerning the applicability of immigration laws to military detainees brought to the United States) to the extent

that such jurisprudence recognized that any “alien who is involuntarily brought to the United States by agents of the

United States is not considered to be an immigrant within the meaning of the immigration laws.” In re Alexander

Navarro-Fierro, 2004 WL 1167275 (BIA January 16, 2004) (per curium) (ruling that an alien interdicted in

international waters and brought to the United States to face criminal prosecution for drug smuggling was considered

an applicant for admission under the INA).

In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), a majority of the Supreme Court found that Congress had authorized

the President, pursuant to the 2001 AUMF, to detain U.S. citizens properly designated as “enemy combatants” who

were captured in the conflict in Afghanistan. Id. at 518 (O’Connor, J., plurality opinion), 588-589 (Thomas, J.,

dissenting). A plurality of the Court held that even assuming that the Non-Detention Act, 18 U.S.C. §4001(a), which

limits detention of U.S. citizens except pursuant to an act of Congress, was applicable to the detention of U.S. citizens

held as enemy combatants, the AUMF satisfied the act’s requirement that any detention of U.S. citizens be authorized

by Congress. Id. at 517-518 (O’Connor, J., plurality opinion). It could be argued that the Hamdi plurality’s reasoning

supports the argument that the AUMF authorizes the President to transfer noncitizens into the United States for

detention, even though the entry of such persons might otherwise be prohibited under the INA. On the other hand, it

could be argued that the situation is not analogous to the facts at issue in Hamdi. Whereas the Non-Detention Act

generally barred the detention of U.S. citizens “except pursuant to an act of Congress,” similar language is not found in

the INA with respect to alien inadmissibility.

8 U.S.C. §1182(d)(5)(A). For example, fugitives extradited to the United States whose U.S. citizenship cannot be

confirmed are paroled into the United States by immigration authorities. 7 F.A.M. 1625.6.

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of a paroled alien does not constitute admission into the United States for immigration purposes.

Despite physical entry into the country, the alien is “still in theory of law at the boundary line and

had gained no foothold in the United State[s].”95 The executive branch may opt to use its parole

authority with respect to transferred detainees in order to clarify their immigration status in case

they are required to be released from U.S. custody.96

As discussed later, an alien’s physical presence in the United States, even in cases where the alien

has been paroled into the country, may result in the alien becoming eligible for asylum or other

forms of immigration-related relief from removal. In recent years, several legislative proposals

have been introduced that address the application of federal immigration laws to the transfer of

detainees into the United States and clarify the immigration status of detainees brought into the

country.97 Notably, the Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83),

contained a provision barring any funds made available under the act from being

used to provide any immigration benefit (including a visa, admission into the United States

or any of the United States territories, parole into the United States or any of the United

States territories (other than parole for the purposes of prosecution and related detention), or

classification as a refugee or applicant for asylum) to any individual who is detained, as of

June 24, 2009, at Naval Station, Guantanamo Bay, Cuba.98

The Consolidated Appropriations Act, 2010 (P.L. 111-117) contained a similar restriction on using

the funds it appropriates to provide a Guantanamo detainee with an immigration benefit.99 The

funding restrictions contained in both enactments applied to funds appropriated for the 2010

fiscal year. Congress did not enact any FY2011 regular appropriations acts before the 2010 fiscal

year expired, but instead passed a series of continuing resolutions that temporarily extended

funding for federal agencies, subject to the terms and conditions of FY2010 appropriations

enactments.100 In appropriating funds for the duration of FY2011, the 2011 CAA specified that the

terms and conditions of most appropriations enactments in FY2010 remained in effect for the

duration of the 2011 fiscal year.101 The complete bar against transporting detainees from

Guantanamo into the United States has apparently obviated the need for renewal of the measure

past 2011.

The FY2010 Department of Homeland Security Appropriations Act also amended Title 49 of the

United States Code to require the placement of any person who has been detained at Guantanamo

Leng May Ma v. Barber, 357 U.S. 185, 189 (1958).

Such authority was used when Ahmed Ghailani was transferred from Guantanamo to the United States in 2009 to

face criminal charges before an Article III court.

See, e.g., S. 108, S. 147, H.R. 374, 111th Cong. (2009); S. 553, 112th Cong. (2011).

P.L. 111-83, §552(f).

P.L. 111-117, §532(f).

100

Additional Continuing Appropriations Amendments, 2011, P.L. 112-6 (continuing funding through April 8, 2011).

Congress had previously passed five continuing resolutions to temporarily fund federal agencies after the expiration to

FY2010. P.L. 111-242 (extending funding for federal agencies at FY2010 levels through December 3, 2010); P.L. 111290 (further extending funding through December 18, 2010); P.L. 111-317 (extending funding through December 21,

2010); P.L. 111-322 (continuing funding through March 4, 2011); P.L. 112-4 (providing funding through March 18,

2011).

101

P.L. 112-10, Div. B.

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on the No Fly List, unless the President certifies to Congress that the detainee poses no threat to

the United States, its citizens, or its allies.102

Detention and Treatment of Persons Transferred to

the United States

Many of the rules and standards governing the detention and treatment of persons at Guantanamo

would remain applicable to detainees transferred into the United States. However, non-citizens

held in the United States may be entitled to more protections under the Constitution than those

detained abroad.

Authority to Detain Within the United States

Guantanamo detainees properly determined to be enemy belligerents may be held in preventive

detention by military authorities even if transferred to the United States. In the 2004 case of

Hamdi v. Rumsfeld, a majority of the Supreme Court recognized that, as a necessary incident to

the 2001 AUMF, the President is authorized to detain persons captured while fighting U.S. forces

in Afghanistan for the duration of the conflict.103 A divided Supreme Court also declared that “a

state of war is not a blank check for the president,” and ruled that persons who had been deemed

“enemy combatants” by the Bush Administration had the right to challenge their detention before

a judge or other “neutral decision-maker.”104

While the preventive detention of enemy belligerents is constitutionally acceptable, the scope of

persons potentially falling under this category remains uncertain. The Hamdi plurality was

limited to an understanding that the phrase “enemy combatant” includes an “individual who ...

was part of or supporting forces hostile to the United States or coalition partners in Afghanistan

and who engaged in an armed conflict against the United States there.”105 Left unresolved is the

extent to which the 2001 AUMF permits the detention of persons captured away from the zone of

combat, or whether the President has the independent authority to detain such persons in the

exercise of his Commander-in-Chief power. The Court also did not define what constitutes

“support” for hostile forces necessary to acquire enemy belligerent status, or describe which

activities constitute “engage[ment] in an armed conflict.”

In December 2008, the Supreme Court agreed to hear an appeal of an en banc ruling by the

Fourth Circuit in the case of al-Marri v. Pucciarelli, in which a majority of the Court of Appeals

found that the 2001 AUMF permits the detention as an “enemy combatant” of a resident alien

alleged to have planned to engage in hostile activities within the United States on behalf of Al

Qaeda, but who had not been part of the conflict in Afghanistan.106 However, prior to the Supreme

102

P.L. 111-83, §553. Unlike other restrictions imposed by the act on detainee transfers and eligibility for immigration

benefits, which apply only to the use of appropriated funds for the fiscal year, the amendment to Title 49 constitutes a

permanent statutory change.

103

Hamdi, 542 U. S. at 518 (O’Connor, J., plurality opinion), 588-589 (Thomas, J., dissenting).

104

Id. at 536-537 (O’Connor, J., plurality opinion).

105

Id. at 526.

106

Al-Marri v. Pucciarelli,534 F.3d 213 (4th Cir. 2008), cert. granted by 129 S. Ct. 680 (2008), vacated and remanded

by Al-Marri v. Spagone, 555 U.S. 1220 (2009). See also Al-Marri v. Wright, 487 F. 3d 160 (4th Circ. 2007).

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Court considering the merits of the case, al-Marri was indicted by a federal grand jury for

providing material support to Al Qaeda and conspiring with others to provide such support. The

government immediately requested that the Supreme Court dismiss al-Marri’s pending case and

authorize his transfer from military to civilian custody for criminal trial. In March 2009, the

Supreme Court granted the government’s application concerning the transfer of al-Marri, vacated

the Fourth Circuit’s judgment, and remanded the case back to the appellate court with instructions

to dismiss the case as moot.107

As a result, the scope of the executive’s authority to militarily detain persons captured away from

the battlefield, including alleged members or associates of Al Qaeda or the Taliban who did not

directly engage in hostilities against the United States or its coalition partners, will likely remain a

matter of continuing dispute.

In January 2010, a three-judge panel of the D.C. Circuit Court of Appeals considered the scope of

executive detention authority in the case of Al-Bihani v. Obama.108 In an opinion supported in full

by two members of the panel,109 the appellate court recognized that, at a minimum, the President

was authorized to detain persons who were subject to the jurisdiction of military commissions

established pursuant to the Military Commissions Acts of 2006 and 2009; namely, any person

who was “part of forces associated with Al Qaeda or the Taliban,” along with “those who

purposefully and materially support such forces in hostilities against U.S. Coalition partners.”110

While the panel concluded that either purposeful and material support for or membership in an

AUMF-targeted organization may be independently sufficient to justify detention,111 it declined

“to explore the outer bounds of what constitutes sufficient support or indicia of membership to

meet the detention standard.”112 It did, however, note that this standard would, permit the

107

Al-Marri v. Spagone, 555 U.S. 1220 (2009).

Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), cert. denied 131 S. Ct. 1814 (2011).

109

A third member of the panel issued a separate opinion concurring with the majority’s judgment. However, the

opinion did not clearly endorse the majority’s view as to the scope of the executive’s detention authority. See id. at 883885 (Williams, J., concurring) (arguing that petitioner was detainable on account of being “part of” an AUMF-targeted

organization, but not deciding whether a person could be detained on account of “support” for a targeted organization

that he was not also a “part of”).

110

Al-Bihani at 872 (quoting 2006 MCA, P.L. 109-366, §3, and 2009 MCA, P.L. 111-84, Div. A, §1802).

111

While it has been recognized in subsequent circuit rulings that Al-Bihani establishes, at a minimum, that the

executive may lawfully detain persons who are “part of” organizations targeted under the AUMF, there is arguably

some ambiguity as to whether its conclusion that persons may also be lawfully detained on account of providing

support to such entities is binding precedent or merely dicta. Compare, e.g., Hatim v. Gates, 632 F.3d 720 (D.C. Cir.

2011) (per curiam panel decision) (finding that district court ruling that military could only detain person who was

“part of” Al Qaeda or the Taliban was “directly contrary to Al-Bihani v. Obama, which held that ‘those who

purposefully and materially support’ al-Qaida or the Taliban could also be detained”); Alsabri v. Obama, 764 F. Supp.

2d 60, 69 (D.D.C. 2011) (Urbina, J.) (“This Circuit has stated that the AUMF authorizes the government to detain two

categories of persons: (1) individuals ‘part of’ forces associated with al-Qaida or the Taliban and (2) individuals who

purposefully and materially support such forces in hostilities against the United States.”); Almerfedi v. Obama, 725 F.

Supp. 2d 18 (D.D.C. 2010) (Friedman, J.) (recognizing that Al-Bihani established that detention under the AUMF could

be justified either on grounds that person was either a member of or provided substantial support to an AUMF-targeted

organization), rev’d on other grounds 654 F.3d 1 (D.C. Cir. 2011); with Bensayah v. Obama, 610 F.3d 718, 725 (D.C.

Cir. 2010) (describing circuit jurisprudence in the aftermath of Al-Bihani as having “made clear…that the AUMF

authorizes the Executive to detain, at the least, any individual who is functionally part of al Qaeda”).

112

Al-Bihani at 873-874. The Al-Bihani panel recognized that the executive was authorized to detain, at a minimum,

those persons who were triable by military commissions under either the 2006 or 2009 versions of the MCA; namely,

“those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support

such forces in hostilities against U.S. Coalition partners.” Id. at 872.

108

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detention of a “civilian contractor” who “purposefully and materially supported” an AUMFtargeted organization through “traditional food operations essential to a fighting force and the

carrying of arms.”113 The D.C. Circuit Court of Appeals thereafter denied a petition for an en

banc rehearing the Al-Bihani case,114 and the Supreme Court denied certiorari.115 Accordingly, the

standard endorsed by the panel is controlling in the D.C. Circuit unless the Supreme Court agrees

to take up the issue in a future case.

The D.C. Circuit has also recognized that, when determining whether an individual was “part of”

an AUMF-targeted organization, the government is not required to demonstrate that the person

was part of the organization’s “command structure” in order to justify his detention.116 Instead, a

determination as to whether an individual is “part of” al Qaeda or the Taliban “must be made on a

case-by-case basis by using a functional rather than a formal approach and by focusing upon the

actions of the individual in relation to the organization.”117

Congress enacted a provision as part of the 2012 NDAA to clarify executive authority to detain

“covered persons” pursuant to the law of war.118 The provision appears intended to codify the

D.C. Circuit’s approach to determining who is subject to detention under the AUMF. Section

1021(b)(2) of the 2012 NDAA includes among “covered persons” subject to detention under the

authority of the AUMF: “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.”119

The NDAA provision did not attempt to provide additional clarification for terms such as

“substantial support,” “associated forces,” or “hostilities.” For that reason, it may be subject to an

evolving interpretation that effectively permits a broadening of the scope of the conflict. Certain

“covered persons” are required to be militarily detained, at least until their ultimate disposition

under the measure is determined.120 It is not clear whether the provisions apply to persons

113

Id. at 872-873. The panel found that even if petitioner was not a member of an AUMF-targeted organization, his

service as a cook for a military brigade affiliated with Taliban and Al Qaeda forces, in addition to his accompaniment

of the brigade during military operations, constituted sufficient grounds for his detention. Id.

114

A concurring opinion joined by the majority of the active appellate court judges characterized certain aspects of the

panel’s decision, concerning the application of international law of war principles in interpreting the AUMF, to be nonbinding dicta. Al-Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2010) (Sentelle, C.J., concurring).

115

131 S. Ct. 1814 (2011).

116

See, e.g., Awad v. Obama, 608 F.3d 1, 11-12 (D.C. Cir. 2010), cert. denied 131 S. Ct. 1814 (2011).

117

Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010) See also Salahi v. Obama, 625 F.3d 745, 752 (D.C. Cir.

2010) (a person who “joined and was accepted by al-Qaida fighters who were engaged in hostilities against Afghan and

allied forces … could properly be considered ‘part of’ al-Qaida even if he never formally received or executed any

orders”); Awad, 608 F.3d at 11.

118

P.L. 112-81, §1021.

119

The definition also includes “a person who planned, authorized, committed, or aided the terrorist attacks that

occurred on September 11, 2001, or harbored those responsible for those attacks.” Id. §1021(b)(1).

120

Id. §1022. (mandating military detention of a person covered under Section 1021 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 alQaeda; 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”).

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arrested or captured within the United States,121 but it appears intended to cover any Guantanamo

detainees who may be transferred into the United States and who meets those criteria.

Nevertheless, some detainees may be determined to fall outside the criteria for detention under

the AUMF, as clarified by the 2012 NDAA. In the absence of legal authority to militarily detain a

terrorist suspect, U.S. military authorities must generally release the person from custody.

However, there may be grounds for the person’s continued detention by U.S. law enforcement or

immigration authorities. If a former detainee brought to the United States is charged with a

federal crime, a judicial officer may order his pretrial detention following a hearing in which it is

determined that no other conditions would reasonably assure the individual’s appearance for trial

or the safety of the community or another individual.122 A former detainee may also potentially be

held in detention as a material witness to a criminal proceeding, including a grand jury

proceeding, if a judicial officer orders his arrest and detention after determining that it may

become impracticable to secure the presence of the person by subpoena.123

If the military lacks authority to hold a detainee brought to the United States and is unable to

effectuate his transfer to another country, the detainee might nonetheless be placed in immigration

removal proceedings and continue being detained pending removal. Detention pending removal is

generally required for aliens inadmissible on criminal or terrorism-related grounds.124 Following a

final order of removal,125 an alien is typically required to be removed within 90 days. During this

period, an alien is usually required to be detained, and in no circumstance may an alien

inadmissible or deportable on any terrorism-related ground or most crime-related grounds be

released from detention.126 If the alien is unable to be removed during the 90-day period provided

by statute, his continued detention for a period beyond six months may be statutorily and

constitutionally prohibited.127 However, those aliens who are specially dangerous to the

121

Id. §1021(e) (providing that nothing in the section is to 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”) (emphasis added).

122

18 U.S.C. §3142. Subject to rebuttal by the person, it is presumed that a person shall be subject to pretrial detention

if the judicial officer finds there is probable cause to believe he has committed a federal crime of terrorism for which a

maximum sentence of 10 or more years’ imprisonment is prescribed. Id. at §3142(e).

123

18 U.S.C. §3144.

124

8 U.S.C. §1226. Immigration law also permits an alien to be detained for up to seven days prior to the initiation of

removal proceedings or the charging of the alien with a criminal offense, if the Attorney General certifies that there are

reasonable grounds to believe the alien is inadmissible or deportable on terrorism-related grounds or the alien is

engaged in any other activity that endangers the national security of the United States. 8 U.S.C. §1226a.

125

The removal period begins on the latest of the following: (1) the date that the order of removal becomes

administratively final; (2) if a reviewing court orders a stay of the removal of the alien, the date of the court’s final

order; or (3) if the alien is detained or confined for non-immigration purposes, the date of the alien’s release. 8 U.S.C.

§1231(a)(1)(B).

126

8 U.S.C. §1231(a)(2).

127

In Zadvydas v. Davis, the Supreme Court concluded that the indefinite detention of deportable aliens (i.e., aliens

admitted into the United States who were subsequently ordered removed) would raise significant due process concerns.

The Court interpreted an applicable immigration statute governing the removal of deportable and inadmissible aliens as

only permitting the detention of aliens following an order of removal for so long as is “reasonably necessary to bring

about that alien’s removal from the United States. It does not permit indefinite detention.” Zadvydas v. Davis, 533 U.S.

678, 689 (2001). The Court found that the presumptively reasonable limit for the post-removal-period detention is six

months, but indicated that continued detention may be warranted when the policy is limited to specially dangerous

individuals and strong procedural protections are in place. Id. at 690, 701. Subsequently, the Supreme Court ruled that

aliens who have been paroled into the United States also could not be indefinitely detained, but the Court’s holding was

based on statutory construction of the applicable immigration law, and it did not consider whether such aliens were

(continued...)

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community may be subject to continued detention beyond the six-month period, subject to

periodic review. Immigration regulations permit the continued detention of certain categories of

aliens due to special circumstances, including, inter alia, any alien who is detained on account of

(1) serious adverse foreign policy consequences of release; (2) security or terrorism concerns; or

(3) being considered specially dangerous due to having committed one or more crimes of

violence and having a mental condition making it likely that the alien will commit acts of

violence in the future.128 Some reviewing courts, however, have determined that these regulations

are not based on a permissible construction of the immigration statute governing detention

following an order of removal.129

Proposals have been made to require any alien detainee released from military custody into the

United States to be taken into custody by immigration authorities pending removal. Although in

prior conflicts the United States interned “enemy aliens” and U.S. citizens who did not participate

in hostilities against the United States,130 the scope and effect of proposals requiring the detention

of specified categories of persons other than enemy combatants may be subject to constitutional

challenges.

Treatment of Detained Persons

In the absence of new legislation, the rules governing the treatment of Guantanamo detainees

would largely remain unchanged if detainees were transferred to the United States. The DTA

provides that no person in the custody or effective control of the DOD or detained in a DOD

facility shall be subject to any interrogation treatment or technique that is not authorized by and

listed in the United States Army Field Manual on Intelligence Interrogation, unless the person is

being held pursuant to U.S. criminal or immigration laws (in which case the detainee’s

interrogation would be governed by applicable criminal or immigration law enforcement

standards).131 The Field Manual requires all detainees to be treated in a manner consistent with

(...continued)

owed the same due process protections as aliens who had been legally admitted into the United States. Clark v.

Martinez, 543 U.S. 371 (2005).

128

8 C.F.R. §241.14.

129

Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004) (immigration statute authorizing continued detention of certain aliens

following 90-day removal period did not authorize indefinite detention of aliens whose removal was not foreseeable,

including those deemed specially dangerous under immigration regulations); Tran v. Mukasey, 515 F.3d 478 (5th Cir.

2008) (similar). But see Marquez-Coromina v. Hollingsworth, 692 F. Supp. 2d 565 (D. Md. 2010) (finding that

immigration regulations authorizing continued detention of specially dangerous aliens ordered removed but whose

removal was not foreseeable was based on a reasonable interpretation of immigration detention statute).

130

The Alien Enemy Act, which was originally enacted in 1798 as part of the Alien and Sedition Act, grants the

President broad authority, during a declared war or presidentially proclaimed “predatory invasion,” to institute

restrictions affecting alien enemies, including possible detention and deportation. 50 U.S.C. §§21-24. In its current

form, the act applies to aliens within the United States who are fourteen years or older, and who are “natives, citizens,

denizens, or subjects of the hostile nation or government” at war with the United States. 50 U.S.C. §21. This authority

was used frequently during World War I and World War II, and reviewing courts viewed such measures as

constitutionally permissible. See generally CRS Report R42337, Detention of U.S. Persons as Enemy Belligerents, by

(name redacted). See also Johnson v. Eisentrager, 339 U.S. 763, 775(1950) (“The resident enemy alien is

constitutionally subject to summary arrest, internment and deportation whenever a ‘declared war’ exists.”); Ludecke v.

Watkins, 335 U.S. 160 (1948) (upholding President’s authority to detain and remove a German citizen pursuant to the

Alien Enemy Act). Whether more recent legal developments concerning the due process protections owed to

noncitizens have come to limit this authority remains to be seen.

131

P.L. 109-148, Title X, §1002 (2005); P.L. 109-163, Title XIV, §1402 (2006).

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the Geneva Conventions, and prohibits the use of torture or cruel, inhuman, and degrading

treatment in any circumstance. In the 2006 case of Hamdan v. Rumsfeld, the Supreme Court

found that, at a minimum, Common Article 3 of the Geneva Conventions applied to persons

captured in the conflict with Al Qaeda.132 Common Article 3 requires persons to be treated

humanely and protected from “violence to life and person,” “cruel treatment and torture,” and

“outrages upon personal dignity, in particular, humiliating and degrading treatment.” All of these

requirements would remain applicable to detainees transferred into the United States, at least so

long as they remained in military custody.

Noncitizen detainees transferred to the United States may also receive greater constitutional

protections than those detained outside the United States. “It is well established that certain

constitutional protections available to persons inside the United States are unavailable to aliens

outside of our geographic borders.”133 Although the Supreme Court in Boumediene held that the

constitutional writ of habeas corpus extends to Guantanamo, it did not elaborate as to the extent

to which other constitutional provisions apply to noncitizens held at the detention facility.134 In

February 2009, a D.C. Circuit panel held in the case of Kiyemba v. Obama that the Constitution’s

due process protections do not extend to Guantanamo detainees.135 In October 2009, the Supreme

Court granted certiorari to review the Kiyemba ruling, but in March 2010 it vacated the appellate

court’s opinion and remanded the case in light of changed circumstances surrounding the

Kiyemba petitioners.136 The circuit court thereafter reinstated its earlier opinion,137 but the

Supreme Court denied certiorari.138

Regardless of the Constitution’s application to persons held at Guantanamo, the DTA and MCA

prohibit any person in U.S. custody or control (including those located at Guantanamo or

132

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

Zadvydas, 533 U.S. at 693.

134

The application of constitutional provisions other than the Suspension Clause to noncitizens held at Guantanamo is

the subject of ongoing litigation. See Rasul v. Myers, 555 U.S. 1083 (2008) (vacating pre-Boumediene lower court

judgment that aliens held at Guantanamo lacked constitutional rights under the Fifth and Eighth Amendments, and

remanding the case for further consideration in light of Boumediene decision); Kiyemba v. Obama, 555 F.3d 1022,

1026-27 (D.C. Cir. 2009) (“Kiyemba I”) (finding that detainees at Guantanamo lacked rights under the Due Process

Clause), cert. granted, 558 U.S. 969 (October 20, 2009), vacated, 559 U.S. 131 (2010), reinstated, as modified, by 605

F.3d 1046 (D.C. Cir. 2010), cert. denied 131 S. Ct. 1631 (2011).

135

Kiyemba I, 555 F.3d at 1026-1027 (citing Supreme Court and D.C. Circuit cases recognizing that “the due process

clause does not apply to aliens without property or presence in the sovereign territory of the United States”). In a

separate opinion concurring with the judgment of the Kiyemba majority, Judge Judith Rogers disagreed with the

majority’s interpretation of the territorial application of the Constitution’s Due Process Clause, claiming that it was

inconsistent with the Supreme Court’s reasoning in Boumediene. Id. at 1038 (Rogers, J., concurring).

136

Kiyemba v. Obama, 559 U.S. 131 (2010). The Kiyemba case involved several Guantanamo detainees who, despite

no longer being considered enemy combatants, have not been returned to their home country of China because of

concerns that they would be subjected to torture. Two of the petitioners have been resettled in Switzerland, and Palau

has agreed to take five others, although the five have not accepted Palau’s offer. Because the Supreme Court had

granted certiorari on the understanding that no remedy was available for the petitioners other than release into the

United States, it returned the case to the D.C. Circuit to review the ramifications of the new circumstances. The D.C.

Circuit thereafter reinstated its earlier decision, as modified to take into account subsequent congressional enactments

limiting the use of funds to release any Guantanamo detainee into the United States. 605 F.3d 1046 (D.C. Cir. 2010),

petition for en banc rehearing denied, September 9, 2010. The Supreme Court then denied certiorari, 130 S. Ct. 1880

(2010).

137

605 F.3d 1046 (D.C. 2010).

138

Kiyemba v. Obama, 131 S. Ct. 1631 (2011).

133

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elsewhere outside U.S. territory) from being subjected to cruel, inhuman, or degrading treatment

of the kind prohibited by the Fifth, Eighth, and Fourteenth Amendments.139

Legal Challenges to Nature of Detention

If transferred to the United States, detainees may be able to seek judicial review over a broader

range of actions taken against them. Besides eliminating detainees’ access to habeas corpus

review, the DTA and MCA stripped federal courts of jurisdiction to hear most claims by

noncitizen detainees. Specifically, federal courts are denied jurisdiction over “any other action

against the United States or its agents relating to any aspect of the detention, transfer, treatment,

trial, or conditions of confinement of an alien who is or was detained by the United States and has

been determined by the United States to have been properly detained as an enemy combatant or is

awaiting such determination.”140

Although the Boumediene Court held that the constitutional writ of habeas permitted

Guantanamo detainees to challenge the legality of their detention, the Court declined to “discuss

the reach of the writ with respect to claims of unlawful conditions of treatment or

confinement.”141 Because the Boumediene Court left these questions unresolved, the viability of

measures stripping courts of jurisdiction to hear claims regarding the conditions of detention may

depend upon a reviewing court’s interpretation of the constitutional protections owed to

detainees.142 While measures that eliminate detainees’ ability to pursue statute- or treaty-based

challenges to aspects of their detention may be deemed permissible by a reviewing court,143

139

P.L. 109-148, Title X, §1003; P.L. 109-163, Title XIV, §1402; P.L. 109-366, §6(c).

P.L. 109-366, §7(a). While the DTA initially stripped federal courts of jurisdiction only over claims raised by aliens

held at Guantanamo, the MCA’s restriction upon federal court jurisdiction applies to claims by any alien in U.S.

custody who is properly detained as an enemy combatant or awaiting such a determination, regardless of the alien’s

location.

141

Boumediene, 553 U.S. at 792.

142

In April 2009, a D.C. Circuit panel interpreted this court-stripping provision’s use of the phrase “any other action”

as referring to legal claims other than a petition for a writ of habeas corpus. Kiyemba II, 561 F.3d at 513. In that case,

the panel found that habeas courts could consider not only Guantanamo detainees’ challenges to the legality of their

detention, but also their proposed transfer to another country (though habeas review of such transfers may be quite

limited). Id. at 513-514. Accordingly, whether Guantanamo detainees may challenge their conditions of confinement

may depend on whether a reviewing court considers these conditions to be “a proper subject of … habeas relief.” Id. at

513. Habeas courts have thus far rejected challenges by Guantanamo detainees relating to their conditions of detention.

See, e.g., Khadr v. Bush, 587 F. Supp. 2d 225, 235 (D.D.C., 2008) (“the Supreme Court appears to have left ... [the

MCA’s bar on judicial review of conditions of detention] undisturbed”); In re Guantanamo Bay Detainee Litigation,

577 F. Supp. 2d 312, 314 (D.D.C. 2008) (Hogan, J.) (“Cognizant of the long-standing rule of severability, this Court,

therefore, holds that MCA2006 MCA §7(a)(2) remains valid and strips it of jurisdiction to hear a detainee’s claims that

‘relat[e] to any aspect of the detention, transfer, treatment, trial, or conditions of confinement ...’”). See also In re

Guantanamo Bay Detainee Litigation, 570 F. Supp. 2d 13 (D.D.C. 2008) (Urbina, J.) (holding that MCA §7(a)(2) was

not invalidated by Boumediene, but declining to decide whether the constitutional writ of habeas permits challenges to

conditions of confinement). The rejection of challenges to conditions of confinement may be based, at least in part,

upon the opinion that any such claim by Guantanamo detainees does not derive from a constitutional protection to

which they are entitled. See Kiyemba I, 555 F.3d at 1026-27 (finding that detainees at Guantanamo lacked rights under

the Due Process Clause), cert. granted, 130 S. Ct. 458 (October 20, 2009), vacated, 130 S. Ct. 1235 (2010), reinstated,

as modified, by 605 F.3d 1046 (D.C. Cir. 2010), cert. denied 131 S. Ct. 1631 (2011).

143

See Al-Bihani, 590 F.3d at 875 (D.C. Cir. 2010) (2006 MCA precluded petitioner from raising claim that

government’s failure to accord him prisoner of war status violated Geneva Convention requirements), cert. denied 131

S. Ct. 1814 (2011); Noriega v. Pastrana, 564 F.3d 1290 (11th Cir. 2009) (2006 MCA precluded petitioner, a designated

prisoner of war under the Geneva Conventions, from invoking Conventions in challenge to his proposed extradition to

France), cert. denied, 130 S. Ct. 1002 (2010).

140

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measures that seek to eliminate (rather than merely circumscribe) detainees’ ability to bring

constitutional challenges regarding the circumstances of their detention would likely be subject to

serious legal challenge. Although the scope of constitutional protections owed to Guantanamo

detainees remains a matter of legal dispute, it is clear that the procedural and substantive due

process protections of the Constitution apply to all persons within the United States, regardless of

their citizenship.144 Accordingly, detainees transferred to the United States might be able to more

successfully pursue legal challenges against aspects of their detention in the United States that

allegedly infringe upon constitutional protections owed to them.

Removal of Detainees from the United States

If there are no longer legal grounds to hold a detainee, the United States must terminate custody

either through transfer or release. Persons held in the United States may have greater legal redress

against their unwilling transfer to another country than those held abroad, and may potentially

seek judicial review of transfer decisions through habeas proceedings.

CAT Article 3 and its implementing legislation prohibit the transfer of detainees from the United

States to countries where they would more likely than not face torture. This prohibition is

absolute and without regard to whether an individual has been involved in terrorist or criminal

activity. While the Bush Administration took the position that CAT Article 3 and its implementing

legislation do not govern the transfer of detainees held outside the United States, there appears to

be little if any dispute regarding CAT’s application to the transfer of persons from within the

country.145

144

Zadvydas, 533 U.S. at 693 (“the Due Process Clause applies to all ‘persons’ within the United States, including

aliens, whether their presence here is lawful, unlawful, temporary or permanent”); Wong Wing v. United States, 163

U.S. 228, 238 (1896) (“all persons within the territory of the United States are entitled to the protection guarantied by

[the Fifth and Sixth Amendments], and … aliens shall not be held to answer for a capital or other infamous crime,

unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process

of law”).

145

U.S. law implementing CAT generally specifies that no judicial appeal or review is available for any action,

decision or claim raised under CAT, except as part of a review of a final immigration removal order. FARRA,

§2242(d). The ability of a person to raise a CAT-based claim in non-removal proceedings (e.g., in the case of

extradition or military transfers), is the subject of debate and conflicting jurisprudence. Compare Kiyemba v. Obama,

561 F.3d 509, 514-515 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 1880 (2010) (wartime detainees held at Guantanamo

could not bring CAT- or FARRA-based challenges to their proposed military transfer to a foreign country, as Congress

had precluded judicial review of such claims except as part of a final order of immigration removal); Mironescu v.

Costner, 480 F.3d 664 (4th Cir. 2007), cert. dismissed, 128 S. Ct. 976 (January 9, 2008) (finding that CATimplementing legislation precludes review of CAT-based habeas petition in extradition proceedings); with CornejoBarreto v. Seifert, 218 F.3d 1004 (9th Cir. 2000) (finding that an individual subject to an extradition order may appeal

under the Administrative Procedures Act (APA), when his surrender would be contrary to U.S. laws and regulations

implementing CAT), disapproved in later appeal, 379 F.3d 1075 (9th Cir. 2004), opinion of later appeal vacated on

rehearing by 389 F.3d 1307 (9th Cir. 2004). See also Khouzam v. Muckasey,549 F.3d 235 (3d Cir. 2008) (aliens who

have shown a likelihood of facing torture have a right under the Due Process Clause of the Fifth Amendment to

challenge the sufficiency of diplomatic assurances obtained by immigration authorities to effectuate their removal). It

should also be noted that although U.S. legislation implementing CAT required all relevant agencies to adopt

regulations implementing CAT Article 3 requirements, the DOD has yet to implement such measures. It could be

argued that the DOD could not transfer a detainee from the United States to a third country until CAT-implementing

regulations were promulgated. See Robert M. Chesney, Leaving Guantánamo: The Law of International Detainee

Transfers, 40 U. RICH. L. REV. 657 (2006) (arguing that detainees may have a right to compel the DOD to promulgate

CAT-implementing regulations).

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Detainees transferred to the United States who may no longer be held by military authorities

might potentially seek relief from removal under U.S. immigration laws. An alien who is

physically present or arrives in the United States, regardless of immigration status, may apply for

asylum, a discretionary form of relief from removal available to aliens who have a well-founded

fear of persecution if transferred to another country. Persons granted asylum may thereafter apply

for adjustment of status to that of a legal permanent resident. Certain potentially over-lapping

categories of aliens are disqualified from asylum eligibility, including those involved in terrorismrelated activity (including members of the Taliban and Al Qaeda) and those who are reasonably

believed to pose a danger to U.S. security.146 Nonetheless, it is possible that some detainees who

have been found not to have fought on behalf of the Taliban or Al Qaeda may qualify for asylum

or other forms of relief from removal if transferred to the United States. Further, if a detainee is

declared ineligible for asylum or another form of relief from removal and is thereafter ordered

removed by immigration officials, immigration authorities may be required to provide evidence

forming the basis of this determination in the face of a legal challenge by the detainee.147 It is

important to note that asylum only constitutes relief from removal under immigration laws. It

would not bar the transfer of a detainee pursuant to some other legal authority (e.g., extradition).

As discussed, proposals may be considered that would clarify the application of immigration laws

to Guantanamo detainees transferred to the United States. Former Secretary of Defense Gates

stated that the Obama Administration will seek legislation from Congress addressing detainees’

immigration status, possibly including barring them from asylum eligibility.148 As previously

mentioned, the Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83) and the

Consolidated Appropriations Act, 2010 (P.L. 111-117) contained provisions barring any funds

they made available from being used to provide any immigration benefit to Guantanamo

detainees brought to the United States, or to provide for a detainee’s classification as a refugee or

applicant for asylum.149 Congress extended the restrictions imposed by FY2010 appropriation

enactments through the 2011 fiscal year,150 but has not renewed the restriction since that time.

Detainees’ Rights in a Criminal Prosecution

While many persons currently held at Guantanamo are only being detained as a preventive

measure to stop them from returning to battle, the United States has brought or intends to pursue

criminal charges against some detainees. Various constitutional provisions, most notably those

arising from the Fifth and Sixth Amendments to the U.S. Constitution, apply to defendants

throughout the process of criminal prosecutions. Prosecuting Guantanamo detainees inside the

United States would raise at least two major legal questions. First, does a detainee’s status as an

enemy belligerent reduce the degree of constitutional protections to which he is entitled?

146

8 U.S.C. §1158(b)(2). Members of terrorist organizations are inadmissible and ineligible for asylum. U.S. law

specifies that the Taliban is a terrorist organization for INA purposes. P.L. 110-161, Div. J, §691(d) (2007).

147

8 U.S.C. §1252.

148

Yochi J. Dreazen, Gates Seeks Congress’s Help in Closing Guantanamo, WALL ST. J., December 3, 2008.

149

P.L. 111-83, §552(f); P.L. 111-117, §532(f).

150

See supra footnote 100 (listing continuing resolutions enacted by Congress to temporarily fund agencies following

the end of 2010 fiscal year, and which generally authorized continued funding subject to the same terms and conditions

established by FY2010 appropriations measures); P.L. 112-10, Div. B (appropriating funds for the duration of FY2011,

generally under the same terms and conditions of FY2010 appropriations enactments).

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Secondly, would the choice of judicial forum—that is, civilian court, military commission, or

court-martial—affect interpretations of constitutional rights implicated in detainee prosecutions?

As previously discussed, the nature and extent to which the Constitution applies to noncitizens

detained at Guantanamo is a matter of continuing legal dispute. Although the Supreme Court held

in Boumediene that the constitutional writ of habeas extends to detainees held at Guantanamo, it

left open the nature and degree to which other constitutional protections, including those relating

to substantive and procedural due process, may also apply. The Boumediene Court noted that the

Constitution’s application to noncitizens in places like Guantanamo that are located outside the

United States turns on “objective factors and practical concerns.”151 The Court has also repeatedly

recognized that at least some constitutional protections are “unavailable to aliens outside our

geographic borders.”152 The application of constitutional principles to the prosecution of aliens

located at Guantanamo remains unsettled.

On the other hand, it is clear that if Guantanamo detainees are subject to criminal prosecution in

United States, the constitutional provisions related to such proceedings would apply.153 The

application of these constitutional requirements might nevertheless differ depending upon the

forum in which charges are brought. The Fifth Amendment’s requirement that no person be held

to answer for a capital or infamous crime unless on a presentment or indictment of a grand jury,

and the Sixth Amendment’s requirements concerning trial by jury, have been found to be

inapplicable to trials by military commissions or courts-martial.154 The application of due process

protections in military court proceedings may also differ from civilian court proceedings, in part

because the Constitution “contemplates that Congress has ‘plenary control over rights, duties, and

responsibilities in the framework of the Military Establishment, including regulations,

procedures, and remedies related to military discipline.’”155 In the past, courts have been more

accepting of security measures taken against “enemy aliens” than U.S. citizens, particularly as

they relate to authority to detain or restrict movement on grounds of wartime security.156 It is

possible that the rights owed to enemy belligerents in criminal prosecutions would be interpreted

more narrowly by a reviewing court than those owed to defendants in other, more routine cases,

particularly when the constitutional right at issue is subject to a balancing test.

151

Boumediene, 553 U.S. at 764.

Zadvydas, 533 U.S. at 693. See also Verdugo-Urquidez v. United States, 494 U.S. 259, 270-71 (1990) (“aliens

receive constitutional protections when they have come within the territory of the United States and developed

substantial connections with the country”).

153

See Ex Parte Quirin, 317 U.S. 1, 25 (1942) (denying motion for leave to file writ of habeas corpus by eight German

saboteurs tried by military commission in the United States, but noting that “Constitutional safeguards for the

protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some

who are guilty”).

154

See, e.g., Whelchel v. McDonald, 340 U.S. 122 (1950) (“The right to trial by jury guaranteed by the Sixth

Amendment is not applicable to trials by courts-martial or military commissions.”); Quirin, 317 U.S. at 40 (“we must

conclude that §2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to

demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by

jury at common law be tried only in the civil courts”). See also U.S. CONST., amend. V (“No person shall be held to

answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases

arising in the land or naval forces”) (italics added).

155

Weiss v. United States, 510 U.S. 163, 177 (1994) (upholding a narrowed interpretation of Fifth Amendment due

process rights for the context of military courts) (quoting Chappell v. Wallace, 462 U.S. 296, 301 (1983).

156

See supra footnote 130 and accompanying citations.

152

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There are several forums in which detainees could potentially be prosecuted for alleged criminal

activity, including in federal civilian court, before military commissions, or possibly in general

courts-martial proceedings. The procedural protections afforded to the accused in each of these

forums may differ, along with the types of offenses for which the accused may be prosecuted. The

MCA initially authorized the establishment of military commissions with jurisdiction to try alien

“unlawful enemy combatants” for offenses made punishable by the MCA or the law of war, and

afforded the accused fewer procedural protections than would be available to defendants in

military courts-martial or federal civilian court proceedings.157 The statutory framework for

military commissions was amended by the Military Commissions Act of 2009 (MCA 2009),

enacted as part of the National Defense Authorization Act for Fiscal Year 2010 (P.L. 111-84), so

that the procedural protections afforded to the accused (now referred to as alien “unprivileged

enemy belligerents”158) more closely resemble those found in military courts-martial proceedings,

though differences between the two forums remain.159 The modifications made by the MCA 2009

are discussed in detail in CRS Report R40932, Comparison of Rights in Military Commission

Trials and Trials in Federal Criminal Court, by (name redacted). Critics raised questions

regarding the constitutionality of the military commission system initially established by the

original MCA,160 and some of these arguments may also be raised even following the

amendments made by the MCA 2009. Courts have yet to rule on the constitutional legitimacy of

many procedures used by military commissions. Military commissions are not statutorily

restricted from exercising jurisdiction within the United States, and the Supreme Court has

previously upheld the use of commissions against enemy belligerents tried in the country.161

In November 2009, the Department of Justice and Department of Defense announced that

military commission prosecutions against five Guantanamo detainees, which had been halted

following President Obama’s January 2009 Executive Order, may be resumed.162 It appears likely

that several other detainees will be tried before military commissions as well.163

157

See generally CRS Report RL33688, The Military Commissions Act of 2006: Analysis of Procedural Rules and

Comparison with Previous DOD Rules and the Uniform Code of Military Justice, by (name redacted). The MCA

defined “unlawful enemy combatant” as a person who: (1) “has engaged in hostilities or who has purposefully and

materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant,”

or (2) “has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another

competent tribunal” by a certain date. 10 U.S.C. §948a(1) (2008).

158

The term “unprivileged enemy belligerent” is defined to include an individual (other than a “privileged belligerent”

belonging to one of the eight categories enumerated in Article 4 of the Geneva Convention Relative to the Treatment of

Prisoners of War) who “(A) has engaged in hostilities against the United States or its coalition partners; (B) has

purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a part of

al Qaeda at the time of the alleged offense under this chapter.” P.L. 111-84, §1802 (amending, inter alia, 10 U.S.C.

§948a).

159

See, generally, CRS Report R41163, The Military Commissions Act of 2009 (MCA 2009): Overview and Legal

Issues, by (name redacted).

160

See Brookings Report, supra footnote 3, at p. 8. Information regarding ongoing and completed cases can be viewed

at http://www.defenselink.mil/news/commissions.html.

161

See Quirin, 317 U.S. at 31 (upholding military commissions used to try eight German saboteurs in the United

States).

162

DOJ Announcement, supra footnote 14.

163

Peter Finn, Justice Task Force Recommends about 50 Detainees Be Held Indefinitely, WASH. POST, January 22,

2009. See also Obaydullah v. Obama, No. 09-5328, Brief for Respondent Department of Justice, at 8 Jan. 2010 (D.C.

Cir.) (noting that “the Attorney General has determined that petitioner’s case is appropriate for prosecution and that a

military commission is the appropriate venue for such a prosecution”).

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Detainees could also potentially be prosecuted in federal civilian court for offenses under federal

criminal statutes. Provisions in the U.S. Criminal Code relating to war crimes and terrorist

activity apply extraterritorially and may be applicable to some detainees, though ex post facto and

statute of limitation concerns may limit their application to certain offenses.164 In June 2009, one

detainee was transferred from Guantanamo to the United States for trial in federal court for his

alleged role in the 1998 bombings of the U.S. embassies in Tanzania and Kenya.165 In November

2009, the DOJ and DOD announced plans to bring charges in federal court against five detainees

for their alleged role in the 9/11 terrorist attacks,166 but opposition to the plan caused the Attorney

General to place it on indefinite hold. The plan was eventually dropped in favor of trying the 9/11

conspirators by military commission, but Attorney General Holder did not foreclose civilian trials

for other Guantanamo detainees. Currently, funding bars on transferring detainees to the United

States seem to foreclose civilian trials for those detained at Guantanamo.

Although they have yet to be used for this purpose, military courts-martial could also be

employed to try detainees by exercising jurisdiction under the Uniform Code of Military Justice

(UCMJ) over persons subject to military tribunals under the law of war.167 Detainees brought

before military courts-martial could be charged with offenses under the UCMJ and the law of

war, though courts-martial rules concerning the accused’s right to a speedy trial, as well as statute

of limitations issues, may pose an obstacle to prosecution.168

The executive currently retains at least technical discretion to determine the appropriate forum in

which to prosecute detainees (though various funding measures have effectively precluded

Guantanamo detainees from being tried in civilian court through the 2013 fiscal year, through

their provisions barring the transfer of detainees into the United States for any purpose). The

Administration has repeatedly expressed its desire to prosecute some Guantanamo detainees in

Article III courts and others before military commissions. Legislative proposals have been

introduced that would require prosecutions to occur in a particular forum or modify the

procedural rules applicable to the prosecution of detainees.169 Pursuant to existing statutory

authorization, the executive could also potentially modify military commission procedural rules

to some degree, including by amending existing procedures so that they more closely resemble

those employed by courts-martial.170 Some commentators have proposed the creation of an

entirely new forum for the prosecution of detainees, such as a national security court.171 The

164

See 18 U.S.C. chapter 113B (terrorism-related offenses); 18 U.S.C. §2441.

Department of Justice, “Ahmed Ghailani Transferred from Guantanamo Bay to New York for Prosecution on Terror

Charges,” press release, June 9, 2009, http://www.justice.gov/opa/pr/2009/June/09-ag-563.html. Ghailani was

convicted and sentenced to life in prison.

166

DOJ Announcement, supra footnote 14.

167

10 U.S.C. §818 (“General courts-martial also have jurisdiction to try any person who by the law of war is subject to

trial by a military tribunal and may adjudge any punishment permitted by the law of war.”).

168

Id.

169

See, e.g., Detainee Trials at Gitmo Act, H.R. 388, 112th Cong. (2011).

170

The original MCA provided that the Secretary of Defense may prescribe rules of evidence and procedure for

military commissions not inconsistent with the MCA. Rules applicable to courts-martial under the UCMJ were to apply

except as otherwise specified. 10 U.S.C. §949a(a). Pursuant to this authority, the Secretary of Defense published the

Manual for Military Commissions, including the Rules for Military Commissions and the Military Commission Rules

of Evidence. Under the amendments made by the MCA 2009, the Secretary of Defense retains authority to prescribe

rules for military commissions that are not inconsistent with the act’s requirements.

171

See, e.g., Jack L. Goldsmith and Neal Katyal, op-ed, The Terrorists’ Court, NY TIMES, July 11, 2007; Stuart Taylor,

Jr., The Case for a National Security Court, THE ATLANTIC, February 27, 2008.

165

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scope and effect of such proposals may be shaped by constitutional constraints, including with

respect to the rights owed to the accused in criminal proceedings.

The following sections discuss selected constitutional issues that may arise in the criminal

prosecution of detainees, emphasizing the procedural and substantive protections that apply in

different adjudicatory forums.

Right to Assistance of Counsel

Detainees brought to the United States would have a constitutional right to assistance of counsel

in any criminal prosecution. The procedural rules for federal civilian courts, courts-martial, and

military commissions all provide a defendant with the right to assistance of counsel, but the

exercise of this right may differ according to the forum.

The Sixth Amendment guarantees a criminal defendant the right “to have the Assistance of

Counsel for his defence.” This constitutional protection attaches at the time of indictment and

affords a defendant the right to retain counsel of his or her choosing as well as an opportunity to

consult with that counsel.172 Where a criminal defendant cannot afford to retain a lawyer, counsel

will be appointed by the court to serve at public expense,173 in which case the defendant’s choice

of counsel need not be heeded.174 The court must advise a criminal defendant of his or her right to

counsel and must ask the defendant whether he or she wishes to waive that right.175 A defendant’s

waiver is valid only if it is knowing, voluntary, and intelligent.176 This standard does not require

that the defendant fully and completely comprehend all of the consequences of that waiver.177 The

right to counsel also encompasses the right of a defendant to represent himself or herself, if the

defendant intelligently and knowingly chooses to do so.178 It appears that there is no

constitutional right to continuity of appointed counsel,179 although federal law requires that

substitution of counsel serve “the interest of justice,”180 and the military justice system authorizes

substitution of detailed military counsel only for good cause.181

172

Chandler v. Freytag, 348 U.S. 3, 10 (1954).

See, e.g., Gideon v. Wainwright, 372 U.S. 335, 344 (1963); Johnson v. Zerbst, 304 U.S. 458, 462, 463 (1938).

174

United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006).

175

Walker v. Johnston, 312 U.S. 275 (1941).

176

Iowa v. Tovar, 541 U.S. 77 (2004).

177

Id.

178

Faretta v. California, 422 U.S. 806 (1975). However, “under some circumstances the trial judge may deny the

authority to exercise it, as when the defendant simply lacks the competence to make a knowing or intelligent waiver of

counsel or when his self-representation is so disruptive of orderly procedures that the judge may curtail it.” UNITED

STATES CONSTITUTION: ANALYSIS AND INTERPRETATION (Constitution Annotated), http://crs.gov/products/conan/

Amendment06/topic_8_1_7.html. See Indiana v. Edwards, 554 U.S. 164 (2008). The right to self-representation applies

only in preparation for trial and at trial. The Constitution does not guarantee a right to self-representation on direct

appeal from a criminal conviction. Martinez v. Court of App. of Cal., Fourth App. Dist., 528 U.S. 152, 160 (2000); cf.,

Abney v. United States, 431 U.S. 651, 656 (1977) (finding that the right to appeal, as we now know it, in criminal cases

arises from statutory rather than constitutional authority). The Martinez Court found that it necessarily followed from

this that the Sixth Amendment did not provide a basis for self-representation on appeal. 528 U.S. at 160.

179

United States v. Ghailani, 686 F. Supp. 2d 279, 299 (S.D.N.Y. 2009) (citing United States v. Parker, 469 F.3d 57, 61

(2d Cir. 2006).

180

18 U.S.C. §3006A(c).

181

Both the Manual for Courts-Martial and the Manual for Military Commissions require a showing of good cause for

the substitution of detailed military counsel once an attorney-client relationship has been formed. R.C.M. 505(d)

(continued...)

173

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The Sixth Amendment right to counsel is the right to the effective assistance of counsel.182 The

standard for determining whether a defendant has received ineffective assistance of counsel is

two-fold. The attorney’s performance must have been deficient, and the prejudice to the defense

resulting from the attorney’s deficient performance must be so serious as to bring into question

the outcome of the proceeding.183 If there is an actual breakdown in the adversarial process, such

as a case involving “circumstances that are so likely to prejudice the accused that the cost of

litigating their effect in a particular case is unjustified,” the Sixth Amendment is violated.184

In the federal civilian courts, the right to counsel is implemented under Rule 44 of the Federal

Rules of Criminal Procedure. In part, this rule affords a criminal defendant who is unable to

obtain counsel the right to have counsel appointed to represent him at every stage of the

proceedings from initial appearance through appeal, unless the defendant waives this right.185 In

courts-martial, the right to counsel is implemented under Rule 506 of the Rules for CourtsMartial (R.C.M.). Rule 506 provides that a defendant has the right to be represented at a general

or special court-martial by civilian counsel, if provided at no expense to the government, and

either by military counsel detailed under Article 27 of the UCMJ186 or military counsel of the

defendant’s own selection. As in a civilian court, the defendant may also waive the right to be

represented by counsel and may conduct the defense personally.187

A detainee subject to a military commission has the right to be represented by counsel.188 The

right is implemented by Rule 506 of the Rules for Military Commissions (R.M.C.), which

provides an accused detainee with a detailed military defense counsel. The detainee also has the

right to be represented by civilian counsel, if retained at no cost to the government. Civilian

counsel must fulfill certain qualifications, including being a U.S. citizen and having security

clearance of Secret or higher.189 As under the Rules for Courts-Martial, a defendant in a military

commission proceeding may waive his right to counsel and may conduct the defense

personally.190 In a departure from the rules governing courts-martial under the earlier rules, the

detainee did not have the right to be granted specific individual military counsel upon request.

Pursuant to modifications to military commission procedures made by the MCA 2009, the

accused is now able to request a military defense counsel of his choosing from the pool of

qualified military attorneys, if that counsel is reasonably available.191

(...continued)

(2012); R.M.C. 505(d) (2010).

182

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v. Alabama, 287 U.S. 45, 71-72 (1932); Glasser v.

United States, 315 U.S. 60, 70 (1942).

183

Strickland v. Washington, 466 U.S. 668 (1984).

184

United States v. Cronic, 466 U.S. 648, 658 (1984).

185

FED. R. CRIM. P. 44(a).

186

10 U.S.C. §827.

187

R.C.M. 506(d).

188

10 U.S.C. §§949a, 949c. Military defense counsel is to be appointed “as soon as practicable.” 10 U.S.C. §948k.

189

R.M.C. 502(d).

190

R.M.C. 506(c).

191

10 U.S.C. §949c.

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Right Against Use of Coerced Confessions

One issue that could arise in the prosecution of certain detainees involves the admissibility of

statements obtained during interrogation by U.S. or foreign military and intelligence agencies.

Some detainees currently held at Guantanamo were subjected to interrogation techniques that, if

performed in the United States, would almost certainly be deemed unconstitutionally harsh.192

The use of any such evidence, or evidence derived from it, in the criminal trial of a detainee

would likely be subject to legal challenge under the Fifth Amendment on the ground that the

statement was gained through undue coercion. As a general rule, statements made in response to

coercive interrogation methods are inadmissible in U.S. courts. Fifth Amendment protections

concerning the right against self-incrimination and due process serve as dual bases for exclusion

of such evidence.193

Under the leading Supreme Court case, Miranda v. Arizona, courts will not admit defendants’

statements at trial unless law enforcement officers issued the well-known Miranda warnings,

which typically begin with “You have the right to remain silent,” before the statements were

made.194 As a general rule, Miranda applies any time police question a defendant who is in

“custody,” broadly defined.195 In the context of terrorist suspects’ statements, at least one court

has held that Miranda applies in Article III courts even if the questioning took place outside of

the United States.196

192

See, e.g., U.S. Congress, Senate Select Committee on Intelligence, Current and Projected National Security Threats,

(testimony by CIA Director Michael Hayden, discussing the use of waterboarding upon three detainees currently held

at Guantanamo), 110th Cong., February 5, 2008; Bob Woodward, Detainee Tortured, Says U.S. Official, WASH. POST,

January 14, 2009, at p. A1 (quoting Susan J. Crawford, convening authority of military commissions, as stating that

case of a Guantanamo detainee was not referred for prosecution because “[h]is treatment met the legal definition of

torture”).

193

U.S. CONST. amend. V (“No person ... shall be compelled in any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due process of law”); U.S. CONST. amend. XIV (“nor shall any State

deprive any person of life, liberty, or property, without due process of law”). See also Malloy v. Hogan, 378 U.S. 1, 7

(1964) (incorporating the Fifth Amendment self-incrimination clause to the states). Throughout the nineteenth century,

courts excluded coerced statements under a common-law rule, which arose from a judicial concern that such statements

were unreliable evidence. In Bram v. United States, the Supreme Court first introduced the self-incrimination clause

rationale for excluding such statements. 168 U.S. 532, 542 (1887). Other twentieth century cases articulated a dueprocess rationale to exclude coerced statements. See, e.g., Brown v. Mississippi, 297 U.S. 278, 285-87 (1936) (holding

that statements obtained by torturing an accused must be excluded under the Fourteenth Amendment due process

clause, which forbids states to offend “fundamental principles of liberty and justice”). In Miranda v. Arizona, the Court

affirmed the prominence of the Baum self-incrimination rationale for excluding coerced statements. 384 U.S. 436, 44445 (1966). The Court has reiterated the due-process rationale in more recent cases. See, e.g., Dickerson v. United

States, 530 U.S. 428, 434 (2000) (“We have never abandoned [the] due process jurisprudence”). For information on

more cases interpreting the Fifth Amendment right against self-incrimination, see CRS Report R41252, Terrorism,

Miranda, and Related Matters, by (name redacted).

194

384 U.S. 436, 479 (1966).

195

Id. at 444. (defining questioning during “custodial interrogation” as “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant

way”).

196

United States v. Bin Laden, 132 F. Supp. 2d 168, 173-79 (S.D.N.Y. 2001) (in a case involving a non-citizen

defendant who had been detained and interrogated in Kenya, holding that as a general rule, Miranda applies when U.S.

law enforcement officials questioned the defendant outside of the United States). This outcome seems to comport with

the self-incrimination clause rationale, espoused by the Miranda court, for excluding coerced statements; if the concern

is compelled incrimination in a current legal proceeding, the location of the interrogation seems to be irrelevant under

the constitutional standard.

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However, the Court’s recent jurisprudence has weakened Miranda’s effect by making clear that

despite the holding’s constitutional status,197 there are cases in which it is appropriate to depart

from strict adherence to Miranda warnings.198 The Miranda exception possibly relevant to the

Guantanamo detainees is the “public safety” exception, which the Court introduced in New York

v. Quarles.199 In Quarles, police officers apprehended a rape suspect in a supermarket and, on

discovering his empty holster, inquired, “where’s the gun?”200 The Court held that the suspect’s

incriminating response, “The gun is over there,” was admissible in court, despite the lack of a

Miranda warning, because the question had been necessary to secure the public’s safety in that

moment.201 Despite the Court’s emphasis in Quarles on the time-sensitive nature of the safety risk

in that case,202 some commentators have argued that the Quarles “public safety” exception should

be extended to reach interrogations of all captured terrorist suspects.203 Attorney General Holder

has stated that the “public safety” exception was used to question suspected Times Square bomber

Faisal Shahzad and suspected Detroit airline bomber Umar Farouk Abdulmutallab prior to the

reading of their Miranda rights.204 An FBI memorandum from October 2010 advises agents that

the circumstances surrounding the arrest of a terrorist operative or leader may warrant

significantly more extensive “public safety questioning” than an ordinary arrest, and could

include questions about “possible impending or coordinated terrorist attacks; the location, nature,

and threat posed by weapons that might pose an imminent danger to the public; and the identities,

locations, and activities or intentions of accomplices who may be plotting additional imminent

attacks.”205 The memorandum further notes that in exceptional cases, an unwarned intelligence

interrogation may be necessary to collect information related to less immediate threats, where the

need to collect the information outweighs the government’s need to use such statements in court.

A second Miranda exception possibly applicable to some detainees is an exception for statements

made in response to questioning by foreign officials. In United States v. Yosef, the U.S. Court of

Appeals for the Second Circuit held that “statements taken by foreign police in the absence of

Miranda warnings are admissible if voluntary.”206 The Yosef court identified two situations in

which this exception does not apply: (1) situations where U.S. interrogators are working with

197

In Dickerson v. United States, the Supreme Court held that the Miranda warnings have the status of constitutional

interpretation; thus, Congress cannot eliminate the Miranda warnings requirement by statute. 530 U.S. 428, 434-435

(2000).

198

See, e.g., Michigan v. Tucker, 417 U.S. 433, 444 (1974) (declining to strictly enforce the Miranda warnings where

police conduct “did not deprive respondent of his privilege against compulsory self-incrimination as such, but rather

failed to make available to him the full measure of procedural safeguards associated with that right since Miranda”).

199

467 U.S. 649 (1984).

200

Id. at 655.

201

Id.

202

Id. at 657-58 (reasoning that requiring police to determine whether to take the time to give Miranda warnings “in a

matter of seconds” was impracticable under the circumstances).

203

See, e.g., Jeffrey S. Becker, Legal War on Terrorism: Extending New York v. Quarles and the Departure from

Enemy Combatant Designations, 53 DEPAUL L. REV. 831, 869 (2003-2004).

204

Justice Department Budget, Hearing before the Senate Comm. on Appropriations, Subcomm. on Commerce, Justice,

Science, And Related Agencies, May 6, 2010 (statement of Eric Holder).

205

See Memorandum, U.S. Department of Justice Federal Bureau of Investigation, “Custodial Interrogation for Public

Safety and Intelligence-Gathering Purposes of Operational Terrorists Inside the United States,” October 21, 2010,

http://www.nytimes.com/2011/03/25/us/25miranda-text.html.

206

327 F.3d 56, 145 (2d Cir. 2003), cert. denied, 540 U.S. 933 (2003).

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foreign interrogators as part of a “joint venture”; and (2) situations that “shock the judicial

conscience.”207

If the Quarles public safety exception, the foreign-interrogator exception, or another Miranda

exception applied to statements made during questioning of a Guantanamo detainee, prosecutors

would need to show only that the detainees’ statements were made “voluntarily” before a court

would admit them at trial.208 For example, in United States v. Abu Ali, a case involving a

defendant who had been arrested and questioned by the Saudi government for allegedly assisting

terrorists in an attack, the U.S. Court of Appeals for the Fourth Circuit upheld statements made to

the Saudi interrogators, despite a lack of Miranda warnings, because the court found that the

statements were voluntary.209

The constitutional standard of “voluntariness” is recognized as “the ultimate safeguard against

coerced confessions.”210 The definition for “voluntary” in this context matches the definition

employed in other due-process cases; specifically, the test for voluntariness is “whether the

confession was ‘extracted by any sort of threats or violence, [or] obtained by any direct or

implied promises, however slight, [or] by the exertion of any improper influence.’”211 The

voluntariness test is a totality-of-the-circumstances inquiry, in which courts examine factors such

as “the youth of the accused, his lack of education, or his low intelligence, the lack of any advice

to the accused of his constitutional rights, the length of detention, the repeated and prolonged

nature of the questioning, and the use of physical punishment such as the deprivation of food or

sleep.”212 The failure to provide Miranda warnings can serve as one factor in the totality-ofcircumstances evaluation.213

Absent an exception, the failure to administer a Miranda warning to a suspect in custody results

in the exclusion of any unwarned statements at trial as part of the prosecution’s case in chief.

Evidence derived from an unwarned statement need not be excluded at trial under the “fruit of the

poisonous tree” doctrine214 unless, some courts have ruled, the evidence was uncovered (or

witness identified) as a result of a coerced statement and the government cannot show that its

subsequent discovery of the derivative evidence is so remote from the illegal action that the taint

207

Id. at 145-46. The Fourth Circuit articulated slightly different exceptions to this general rule in Abu Ali, holding that

Miranda will apply to interrogations by foreign governments when the foreign interrogators are: “(1) engaged in a joint

venture with, or (2) acting as agents of, United States law enforcement officers.” United States v. Abu Ali, 528 F.3d

210, 227-28 (4th Cir. 2008).

208

See Abu Ali, 528 F.3d at 232 (“When Miranda warnings are unnecessary, as in the case of an interrogation by

foreign officials, we assess the voluntariness of a defendant’s statements by asking whether the confession is ‘the

product of an essentially free and unconstrained choice by its maker.’”) (citing Culombe v. Connecticut, 367 U.S. 568,

602 (1961)).

209

Id at 234(“[W]e conclude that Abu Ali’s statements were voluntary. Abu Ali was intelligent, articulate, and

comfortable with the language and culture of the country in which he was detained and questioned. The district court

found, based upon copious record evidence, that he was not tortured, abused, threatened, held in cruel conditions, or

subjected to coercive interrogations. On the basis of the totality of these circumstances, we conclude that Abu Ali’s

statements were ‘the product of an essentially free and unconstrained choice.’” (citing Culombe, 367 U.S. at 602)).

210

See Dickerson, 530

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