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Friday, December 17, 2010

Guantanamo Detention Center: Legislative Activity in the 111th Congress

Michael John Garcia
Legislative Attorney

The detention of alleged enemy belligerents at the U.S. Naval Station in Guantanamo Bay, Cuba, together with proposals to transfer some such individuals to the United States for prosecution or continued detention, has been a subject of considerable interest for Congress. Several authorization and appropriations measures enacted during the 111th Congress, along with various pending bills, address the disposition and treatment of Guantanamo detainees.

To date in the 111
th Congress, provisions directly relating to Guantanamo detainees have been enacted as part of eight laws: the 2009 Supplemental Appropriations Act (P.L. 111-32); the Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83); the 2010 National Defense Authorization Act (P.L. 111-84); the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010 (P.L. 111-88); the Consolidated Appropriations Act, 2010 (P.L. 111-117); the Department of Defense Appropriations Act, 2010 (P.L. 111-118); the Supplemental Appropriations Act, 2010 (P.L. 111-212) and the Intelligence Authorization Act for FY2010 (P.L. 111-259). Most of these measures impose general restrictions on the use or availability of funds to transfer or release Guantanamo detainees into the United States, though they also provide an exception permitting transfers for purposes of criminal prosecution or detention during legal proceedings if certain reporting requirements are fulfilled. Although the 2010 fiscal year has ended, Congress has passed continuing resolutions that extended funding for federal agencies at the FY2010 enacted spending levels first through December 3, 2010 (P.L. 111- 242), and then through December 18, 2010 (P.L. 111-290).

The Full-Year Continuing Appropriations Act, 2011 (H.R. 3082), which was agreed to by the House on December 8, 2010, would prohibit any funds made available under it or any prior act from being used to transfer or release a Guantanamo detainee into the United States, its territories, or possessions. It would also bar funds provided to the Department of Justice from being used to acquire any facility for use in detaining any person who was held at Guantanamo as of June 24, 2009. The FY2011 defense authorization measures—S. 3454 and the House-passed H.R. 5136—would also extend or expand restrictions on detainee transfers. The House-passed Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2011 (H.R. 5822), would bar the funds it appropriates or makes available from being used to renovate or construct a facility within the continental United States to house Guantanamo detainees.

Public laws and pending proposals address additional issues related to the treatment and disposition of Guantanamo detainees. For example, Title XVIII of the FY2010 National Defense Authorization Act establishes new procedures for military commissions. Section 552 of the FY2010 Department of Homeland Security Act requires that former Guantanamo detainees be included on the “No Fly List” in most circumstances and restricts their access to immigration benefits.

This report analyzes relevant provisions in enacted legislation and selected pending bills. For more detailed explorations of the legal issues related to the potential closure of the detention facility and the transfer, release, and treatment of detainees, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia et al., and CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and Michael John Garcia.

Date of Report: December 9, 2010
Number of Pages: 23
Order Number: R40754
Price: $29.95

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