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

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 held at Guantanamo at some point since early 2002, the substantial majority of Guantanamo detainees have ultimately 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 has not been met, but the Administration has repeatedly stated its intent to close the facility. Efforts to 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 Ike Skelton National Defense Authorization Act for FY2011 (2011 NDAA, P.L. 111-383) 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, these acts seem to ensure that the Guantanamo detention facility remains open at least through the 2011 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. In March 2011, President Obama issued a new Executive Order that establishes a process to periodically review whether the continued detention of a lawfully held Guantanamo detainee is warranted, potentially resulting in some of detainees being cleared for release and transferred to a foreign country.

The closure of the Guantanamo detention facility raises 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 adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions).


Date of Report: July 6, 2011
Number of Pages: 59
Order Number: R40139
Price: $29.95

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