Wednesday, January 22, 2009
EXECUTIVE ORDER -- REVIEW AND DISPOSITION OF
INDIVIDUALS DETAINED AT THE GUANTÁNAMO BAY NAVAL
BASE AND CLOSURE OF DETENTION FACILITIES
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, in order to effect the appropriate disposition
of individuals currently detained by the Department of
Defense at the Guantánamo Bay Naval Base
(Guantánamo) and promptly to close detention
facilities at Guantánamo, consistent with the
national security and foreign policy interests of the
United States and the interests of justice, I hereby
order as follows:
Section 1. Definitions. As used in this order:
(a) "Common Article 3" means Article 3 of each of the
Geneva Conventions.
(b) "Geneva Conventions" means:
(i) the Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the
Field, August 12, 1949 (6 UST 3114);
(ii) the Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea, August 12, 1949 (6 UST 3217);
(iii) the Convention Relative to the Treatment of
Prisoners of War, August 12, 1949 (6 UST 3316); and
(iv) the Convention Relative to the Protection of
Civilian Persons in Time of War, August 12, 1949 (6 UST
3516).
(c) "Individuals currently detained at
Guantánamo" and "individuals covered by this
order" mean individuals currently detained by the
Department of Defense in facilities at the
Guantánamo Bay Naval Base whom the Department of
Defense has ever determined to be, or treated as, enemy
combatants.
Sec. 2. Findings.
(a) Over the past 7 years, approximately 800
individuals whom the Department of Defense has ever
determined to be, or treated as, enemy combatants have
been detained at Guantánamo. The Federal
Government has moved more than 500 such detainees from
Guantánamo, either by returning them to their home
country or by releasing or transferring them to a third
country. The Department of Defense has determined that a
number of the individuals currently detained at
Guantánamo are eligible for such transfer or
release.
(b) Some individuals currently detained at
Guantánamo have been there for more than 6 years,
and most have been detained for at least 4 years. In view
of the significant concerns raised by these detentions,
both within the United States and internationally, prompt
and appropriate disposition of the individuals currently
detained at Guantánamo and closure of the
facilities in which they are detained would further the
national security and foreign policy interests of the
United States and the interests of justice. Merely
closing the facilities without promptly determining the
appropriate disposition of the individuals detained would
not adequately serve those interests. To the extent
practicable, the prompt and appropriate disposition of
the individuals detained at Guantánamo should
precede the closure of the detention facilities at
Guantánamo.
(c) The individuals currently detained at
Guantánamo have the constitutional privilege of
the writ of habeas corpus. Most of those individuals have
filed petitions for a writ of habeas corpus in Federal
court challenging the lawfulness of their detention.
(d) It is in the interests of the United States that
the executive branch undertake a prompt and thorough
review of the factual and legal bases for the continued
detention of all individuals currently held at
Guantánamo, and of whether their continued
detention is in the national security and foreign policy
interests of the United States and in the interests of
justice. The unusual circumstances associated with
detentions at Guantánamo require a comprehensive
interagency review.
(e) New diplomatic efforts may result in an
appropriate disposition of a substantial number of
individuals currently detained at Guantánamo.
(f) Some individuals currently detained at
Guantánamo may have committed offenses for which
they should be prosecuted. It is in the interests of the
United States to review whether and how any such
individuals can and should be prosecuted.
(g) It is in the interests of the United States that
the executive branch conduct a prompt and thorough review
of the circumstances of the individuals currently
detained at Guantánamo who have been charged with
offenses before military commissions pursuant to the
Military Commissions Act of 2006, Public Law 109-366, as
well as of the military commission process more
generally.
Sec. 3. Closure of Detention Facilities at
Guantánamo. The detention facilities at
Guantánamo for individuals covered by this order
shall be closed as soon as practicable, and no later than
1 year from the date of this order. If any individuals
covered by this order remain in detention at
Guantánamo at the time of closure of those
detention facilities, they shall be returned to their
home country, released, transferred to a third country,
or transferred to another United States detention
facility in a manner consistent with law and the national
security and foreign policy interests of the United
States.
Sec. 4. Immediate Review of All Guantánamo
Detentions.
(a) Scope and Timing of Review. A review of the status
of each individual currently detained at
Guantánamo (Review) shall commence
immediately.
(b) Review Participants. The Review shall be conducted
with the full cooperation and participation of the
following officials:
(1) the Attorney General, who shall coordinate the
Review;
(2) the Secretary of Defense;
(3) the Secretary of State;
(4) the Secretary of Homeland Security;
(5) the Director of National Intelligence;
(6) the Chairman of the Joint Chiefs of Staff; and
(7) other officers or full-time or permanent part-time
employees of the United States, including employees with
intelligence, counterterrorism, military, and legal
expertise, as determined by the Attorney General, with
the concurrence of the head of the department or agency
concerned.
(c) Operation of Review. The duties of the Review
participants shall include the following:
(1) Consolidation of Detainee Information. The
Attorney General shall, to the extent reasonably
practicable, and in coordination with the other Review
participants, assemble all information in the possession
of the Federal Government that pertains to any individual
currently detained at Guantánamo
and that is relevant to determining the proper
disposition of any such individual. All executive branch
departments and agencies shall promptly comply with any
request of the Attorney General to provide information in
their possession or control pertaining to any such
individual. The Attorney General may seek further
information relevant to the Review from any source.
(2) Determination of Transfer. The Review shall
determine, on a rolling basis and as promptly as possible
with respect to the individuals currently detained at
Guantánamo, whether it is possible to transfer or
release the individuals consistent with the national
security and foreign policy interests of the United
States and, if so, whether and how the Secretary of
Defense may effect their transfer or release. The
Secretary of Defense, the Secretary of State, and, as
appropriate, other Review participants shall work to
effect promptly the release or transfer of all
individuals for whom release or transfer is possible.
(3) Determination of Prosecution. In accordance with
United States law, the cases of individuals detained at
Guantánamo not approved for release or transfer
shall be evaluated to determine whether the Federal
Government should seek to prosecute the detained
individuals for any offenses they may have committed,
including whether it is feasible to prosecute such
individuals before a court established pursuant to
Article III of the United States Constitution, and the
Review participants shall in turn take the necessary and
appropriate steps based on such determinations.
(4) Determination of Other Disposition. With respect
to any individuals currently detained at
Guantánamo whose disposition is not achieved under
paragraphs (2) or (3) of this subsection, the Review
shall select lawful means, consistent with the national
security and foreign policy interests of the United
States and the interests of justice, for the disposition
of such individuals. The appropriate authorities shall
promptly implement such dispositions.
(5) Consideration of Issues Relating to Transfer to
the United States. The Review shall identify and consider
legal, logistical, and security issues relating to the
potential transfer of individuals currently detained at
Guantánamo to facilities within the United States,
and the Review participants shall work with the Congress
on any legislation that may be appropriate.
Sec. 5. Diplomatic Efforts. The Secretary of State
shall expeditiously pursue and direct such negotiations
and diplomatic efforts with foreign governments as are
necessary and appropriate to implement this order.
Sec. 6. Humane Standards of Confinement. No individual
currently detained at Guantánamo shall be held in
the custody or under the effective control of any
officer, employee, or other agent of the United States
Government, or at a facility owned, operated, or
controlled by a department or agency of the United
States, except in conformity with all applicable laws
governing the conditions of such confinement, including
Common Article 3 of the Geneva Conventions. The Secretary
of Defense shall immediately undertake a review of the
conditions of detention at Guantánamo to ensure
full compliance with this directive. Such review shall be
completed within 30 days and any necessary corrections
shall be implemented immediately thereafter.
Sec. 7. Military Commissions. The Secretary of Defense
shall immediately take steps sufficient to ensure that
during the pendency of the Review described in section 4
of this order, no charges are sworn, or referred to a
military commission under the Military Commissions Act of
2006 and the Rules for Military Commissions, and that all
proceedings of such military commissions to which charges
have been referred but in which no judgment has been
rendered, and all proceedings pending in the United
States Court of Military Commission Review, are
halted.
Sec. 8. General Provisions.
(a) Nothing in this order shall prejudice the
authority of the Secretary of Defense to determine the
disposition of any detainees not covered by this
order.
(b) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
(c) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the
United States, its departments, agencies, or entities,
its officers, employees, or agents, or any other
person.
BARACK OBAMA
THE WHITE HOUSE,
January 22, 2009.
Source: http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities/
