Why Obama can't legally release or transfer GITMO detainees

Page last edited 1,942 days 0 hours ago
 
Jump to: navigation, search

CRS report May 30, 2013[edit]

Closing the Guantanamo Detention Center: Legal Issues

"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 <u><a href="http://www.gpo.gov/fdsys/pkg/BILLS-112hr4310enr/pdf/BILLS-112hr4310enr.pdf">National Defense Authorization Act for FY2013</a></u> (2013 NDAA; P.L. 112-239) and the <u><a href="http://www.gpo.gov/fdsys/pkg/BILLS-113hr933enr/pdf/BILLS-113hr933enr.pdf">Consolidated and Further Continuing Appropriations Act, 2013</a></u> (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."


The funding text in the law[edit]

Because the 2011 NDAA forbides it by effectively cutting off all funding to do so.

The specific part of the law is sections 1032, 1033 and 1034:

SEC. 1032. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

None of the funds authorized to be appropriated by this Act for fiscal year 2011 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who--

(1) is not a United States citizen or a member of the Armed Forces of the United States; and
(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

SEC. 1033. CERTIFICATION REQUIREMENTS RELATING TO THE TRANSFER OF INDIVIDUALS DETAINED AT NAVAL STATION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.

(a) Limitation-
(1) IN GENERAL- Except as provided in paragraph (2), during the one-year period beginning on the date of the enactment of this Act, the Secretary of Defense may not use any of the amounts authorized to be appropriated by this Act or otherwise available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or effective control of the individual's country of origin, any other foreign country, or any other foreign entity unless the Secretary submits to Congress the certification described in subsection (b) by not later than 30 days before the transfer of the individual.
(2) EXCEPTION- Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction. The Secretary shall notify Congress promptly upon issuance of any such order.
(b) Certification- The certification described in this subsection is a written certification made by the Secretary of Defense, with the concurrence of the Secretary of State, that the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo is to be transferred--
(1) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;
(2) maintains effective control over each detention facility in which an individual is to be detained if the individual is to be housed in a detention facility;
(3) is not, as of the date of the certification, facing a threat that is likely to substantially affect its ability to exercise control over the individual;
(4) has agreed to take effective steps to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future;
(5) has taken such steps as the Secretary determines are necessary to ensure that the individual cannot engage or re-engage in any terrorist activity; and
(6) has agreed to share any information with the United States that--
(A) is related to the individual or any associates of the individual; and
(B) could affect the security of the United States, its citizens, or its allies.
(c) Prohibition and Waiver in Cases of Prior Confirmed Recidivism-
(1) PROHIBITION- Except as provided in paragraph (3), during the one-year period beginning on the date of the enactment of this Act, the Secretary of Defense may not use any amount authorized to be appropriated or otherwise made available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or effective control of the individual's country of origin, any other foreign country, or any other foreign entity if there is a confirmed case of any individual who was detained at United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, who was transferred to the foreign country or entity and subsequently engaged in any terrorist activity.
(2) WAIVER- The Secretary of Defense may waive the prohibition in paragraph (1) if the Secretary determines that such a transfer is in the national security interests of the United States and includes, as part of the certification described in subsection (b) relating to such transfer, the determination of the Secretary under this paragraph.
(3) EXCEPTION- Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction. The Secretary shall notify Congress promptly upon issuance of any such order.
(d) Definitions- For the purposes of this section:
(1) The term `individual detained at Guantanamo' means any individual who is located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who--
(A) is not a citizen of the United States or a member of the Armed Forces of the United States; and
(B) is--
(i) in the custody or under the effective control of the Department of Defense; or
(ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.
(2) The term `foreign terrorist organization' means any organization so designated by the Secretary of State under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).

SEC. 1034. PROHIBITION ON THE USE OF FUNDS TO MODIFY OR CONSTRUCT FACILITIES IN THE UNITED STATES TO HOUSE DETAINEES TRANSFERRED FROM UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) In General- None of the funds authorized to be appropriated by this Act may be used to construct or modify any facility in the United States, its territories, or possessions to house any individual described in subsection (c) for the purposes of detention or imprisonment in the custody or under the effective control of the Department of Defense.
(b) Exception- The prohibition in subsection (a) shall not apply to any modification of facilities at United States Naval Station, Guantanamo Bay, Cuba.
(c) Individuals Described- An individual described in this subsection is any individual who, as of October 1, 2009, is located at United States Naval Station, Guantanamo Bay, Cuba, and who--
(1) is not a citizen of the United States or a member of the Armed Forces of the United States; and
(2) is--
(A) in the custody or under the effective control of the Department of Defense; or
(B) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.
(d) Report on Use of Facilities in the United States to House Detainees Transferred From Guantanamo-
(1) REPORT REQUIRED- Not later than April 1, 2011, the Secretary of Defense shall submit to the congressional defense committees a report, in classified or unclassified form, on the merits, costs, and risks of using any proposed facility in the United States, its territories, or possessions to house any individual described in subsection (c) for the purposes of detention or imprisonment in the custody or under the effective control of the Department of Defense.
(2) ELEMENTS OF THE REPORT- The report required in paragraph (1) shall include each of the following:
(A) A discussion of the merits associated with any such proposed facility that would justify--
(i) using the facility instead of the facility at United States Naval Station, Guantanamo Bay, Cuba; and
(ii) the proposed facility's contribution to effecting a comprehensive policy for continuing military detention operations.
(B) The rationale for selecting the specific site for any such proposed facility, including details for the processes and criteria used for identifying the merits described in subparagraph (A) and for selecting the proposed site over reasonable alternative sites.
(C) A discussion of any potential risks to any community in the vicinity of any such proposed facility, the measures that could be taken to mitigate such risks, and the likely cost to the Department of Defense of implementing such measures.
(D) A discussion of any necessary modifications to any such proposed facility to ensure that any detainee transferred from Guantanamo Bay to such facility could not come into contact with any other individual, including any other person detained at such facility, that is not approved for such contact by the Department of Defense, and an assessment of the likely costs of such modifications.
(E) A discussion of any support at the site of any such proposed facility that would likely be provided by the Department of Defense, including the types of support, the number of personnel required for each such type, and an estimate of the cost of such support.
(F) A discussion of any support, other than support provided at a proposed facility, that would likely be provided by the Department of Defense for the operation of any such proposed facility, including the types of possible support, the number of personnel required for each such type, and an estimate of the cost of such support.
(G) A discussion of the legal issues, in the judgment of the Secretary of Defense, that could be raised as a result of detaining or imprisoning any individual described in subsection (c) at any such proposed facility that could not be raised while such individual is detained or imprisoned at United States Naval Station, Guantanamo Bay, Cuba.