Closing the Guantanamo Detention Center: Legal Issues Michael John Garcia Legislative Attorney Jennifer K. Elsea Legislative Attorney R. Chuck Mason Legislative Attorney Edward C. Liu Legislative Attorney May 30, 2013 Congressional Research Service 7-5700 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. 2 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,