Closing the Guantanamo Detention Center: Legal Issues

Michael John Garcia
Legislative Attorney

Elizabeth B. Bazan
Legislative Attorney

R. Chuck Mason
Legislative Attorney

Edward C. Liu
Legislative Attorney

Anna C. Henning
Legislative Attorney

Following the terrorist attacks of 9/11, Congress passed the Authorization to Use 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 before military tribunals. Although nearly 800 persons have been transferred to Guantanamo since early 2002, the substantial majority of Guantanamo detainees have ultimately been transferred to another country for continued detention or release. The 192 detainees who remain fall into three categories: (1) persons placed in non-penal, preventive detention to stop them from rejoining hostilities; (2) persons who have faced 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, including the extent to which other constitutional provisions apply to noncitizens held at Guantanamo. 

On January 22, 2009, President Obama issued an Executive Order requiring the closure of the Guantanamo detention facility no later than a year from the date of the Order. Although this deadline has not been met, the Administration has stated that it remains committed to closing the facility as expeditiously as possible. Numerous legislative proposals have been introduced in the 111th Congress concerning the potential closure of the Guantanamo facility. Congress has enacted several appropriations measures which contain provisions restricting funds from being used to transfer detainees into the United States for release or purposes other than prosecution. These measures also limit funds from being used to transfer detainees into the country for purposes of prosecution unless certain reporting requirements to Congress are first fulfilled. The National Defense Authorization Act for FY2010 (P.L. 111-84) also contains provisions modifying the rules for military commissions, which may have implications for Guantanamo detainees. For more information, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress, by Anna C. Henning, and CRS Report R40932, Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court, by Jennifer K. Elsea. 

The closure of the Guantanamo detention facility may 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 persons held outside the United States. This may have implications for the continued detention or prosecution of persons who are transferred to the United States. 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 adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions). 


Date of Report: January 27, 2010
Number of Pages: 50
Order Number: R40139
Price: $29.95

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