# Closing the Guantanamo Detention Center: Legal Issues

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/crs%3AR40139

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 30, 2013
- **Citation:** R40139

## Text

Closing the Guantanamo Detention Center:
Legal Issues
/name redacted/
Legislative Attorney
/name redacted/
Legislative Attorney
/name redacted/
Legislative Attorney
/name redacted/
Legislative Attorney
May 30, 2013

Congressional Research Service
7-....
www.crs.gov
R40139

CRS Report for Congress
Prepared for Members and Committees of Congress

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.

1

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.
3
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”].
4
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.
2

Congressional Research Service

1

Closing the Guantanamo Detention Center: Legal Issues

•

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

5

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.
6
Boumediene v. Bush, 553 U.S. 723 (2008).
7
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).
8
See CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by
(name redacted) and (name redacted).

Congressional Research Service

2

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

9
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”].
10
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.
11
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.

Congressional Research Service

3

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

12
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.
13
Benjamin Weiser, Ex-Detainee Gets Life Sentence in Embassy Blasts, WASH. POST, January 25, 2011. Ghailani is
appealing his conviction and sentence.
14
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”].
15
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.
16
These detainees are Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh,
Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi.
17
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.
18
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.
19
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).

Congressional Research Service

4

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
20

Guantanamo Review Task Force, Final Report, January 22, 2010, available at http://www.justice.gov/ag/
guantanamo-review-final-report.pdf.
21
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.
22
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.
23
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).
24
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.

Congressional Research Service

5

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
25

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).
26
For discussion of the legal effect of presidential signing statements, see CRS Report RL33667, Presidential Signing
Statements: Constitutional and Institutional Implications, by (name redacted).
27
Presidential Signing Statement on the 2012 NDAA, supra footnote 25.
28
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”].

Congressional Research Service

6

Closing the Guantanamo Detention Center: Legal Issues

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,
29

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.
30
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.
31
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.
32
Presidential Signing Statement on H.R. 1540, supra footnote 25.
33
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).

Congressional Research Service

7

Closing the Guantanamo Detention Center: Legal Issues

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

34
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.
35
Id.
36
See Charlie Savage, Amid Hunger Strike, Obama Renews Push to Close Cuba Prison, NY TIMES, May 1, 2013, at
A1.
37
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.
38
Executive Order, supra footnote 9, at §4(c)(5).

Congressional Research Service

8

Closing the Guantanamo Detention Center: Legal Issues

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

39

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.
40
See Guantanamo Docket, supra footnote 3.
41
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).
42
Benkert Declaration, supra footnote 41.

Congressional Research Service

9

Closing the Guantanamo Detention Center: Legal Issues

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

43
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.
44
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).
45
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.
46
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).
47
Id. at §5(b).
48
Id. at §4(a).
49
Id. at §3(a).
50
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/.

Congressional Research Service

10

Closing the Guantanamo Detention Center: Legal Issues

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
51

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.
52
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.
53
Executive Order on Periodic Review, supra footnote 28, at §3(a)(1).
54
Id. at §3(a)(2).
55
Id. at §3(a)(3).
56
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.
57
Id. at §3(b)-(c).
58
Id. at §3(d). Neither the government nor the detainee is granted a right to appeal PRB rulings to the Review
Committee.
59
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.

Congressional Research Service

11

Closing the Guantanamo Detention Center: Legal Issues

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
60
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).
61
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.
62
Benkert Declaration, supra footnote 41, at para. 6. See also Guantanamo Task Force Report, supra footnote 20, at 15
n.11.
63
Benkert Declaration, supra footnote 41, para. 7. The PRB Implementing Guidelines, supra footnote 52, state that
they are to be implemented consistent with CAT.
64
Executive Order No. 13491, “Ensuring Lawful Interrogations,” 74 Federal Register 4893, January 22, 2009.
65
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.
66
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).

Congressional Research Service

12

Closing the Guantanamo Detention Center: Legal Issues

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

67

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.
69
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.
70
Guantanamo Task Force Report, supra footnote 20, at ii.
71
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.
72
Carol Rosenberg, How Congress helped thwart Obama’s plan to close Guantánamo, MIAMI HERALD, January 22,
2011, online edition.
68

Congressional Research Service

13

Closing the Guantanamo Detention Center: Legal Issues

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
73

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.
75
This would presumably include a federal habeas court order that a detainee must be released from military custody.
76
P.L. 111-383, §1033(a)-(b).
77
P.L. 112-10, §1013.
78
P.L. 112-81, §1028.
79
P.L. 112-239, §1028.
80
2012 CAA, P.L. 112-74, Div. A, §8120; 2013 CAA, P.L. 113-6, §8110.
81
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).
82
P.L. 111-383, §1033(c); P.L. 112-10, §1013(c).
83
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.
84
P.L. 112-239, §1028 (bars funds available to DOD for FY2013).
85
P.L. 113-6, §8110 (bars funds available under “this or any other Act”).
74

Congressional Research Service

14

Closing the Guantanamo Detention Center: Legal Issues

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 ... ;
(C) is not, as of the date of the certification, facing a threat that is likely to substantially
affect its ability to exercise control over the individual;
(D) has taken or agreed to take effective actions to ensure that the individual cannot take
action to threaten the United States, its citizens, or its allies in the future;
(E) has taken or agreed to take such actions as the Secretary of Defense determines are
necessary to ensure that the individual cannot engage or reengage in any terrorist
activity; and
(F) has agreed to share with the United States any information that—
(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)
86
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.

Congressional Research Service

15

Closing the Guantanamo Detention Center: Legal Issues

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.
87

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).
88
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.
89
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).
90
See 8 U.S.C. §1182 (grounds for alien inadmissibility); 8 U.S.C. §1227 (grounds for deportation).

Congressional Research Service

16

Closing the Guantanamo Detention Center: Legal Issues

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
91

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.”
92
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).
93
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.
94
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.

Congressional Research Service

17

Closing the Guantanamo Detention Center: Legal Issues

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

95

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.
97
See, e.g., S. 108, S. 147, H.R. 374, 111th Cong. (2009); S. 553, 112th Cong. (2011).
98
P.L. 111-83, §552(f).
99
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.
96

Congressional Research Service

18

Closing the Guantanamo Detention Center: Legal Issues

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).

Congressional Research Service

19

Closing the Guantanamo Detention Center: Legal Issues

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

Congressional Research Service

20

Closing the Guantanamo Detention Center: Legal Issues

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”).

Congressional Research Service

21

Closing the Guantanamo Detention Center: Legal Issues

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...)

Congressional Research Service

22

Closing the Guantanamo Detention Center: Legal Issues

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).

Congressional Research Service

23

Closing the Guantanamo Detention Center: Legal Issues

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

Congressional Research Service

24

Closing the Guantanamo Detention Center: Legal Issues

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

Congressional Research Service

25

Closing the Guantanamo Detention Center: Legal Issues

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 pro

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR40139. Public record. Not legal advice.