Guantanamo Detention Center:
Legislative Activity in the 111th Congress
Anna C. Henning
Legislative Attorney
March 25, 2010
Congressional Research Service
7-5700
www.crs.gov
R40754
CRS Report for Congress
P
repared for Members and Committees of Congress
Guantanamo Detention Center: Legislative Activity in the 111th Congress
Summary
The detention of alleged enemy combatants at the U.S. Naval Station in Guantanamo Bay, Cuba,
together with recent 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, and various
pending bills, address the disposition and treatment of Guantanamo detainees.
Recently legislative activity has focused on the possible transfer of Guantanamo detainees to the
United States. The Supplemental Appropriations Act, 2009 (P.L. 111-32) and five FY2010
measures place general restrictions on the use of federal funds to release or transfer a
Guantanamo detainee into the United States. The relevant FY2010 measures include the
Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83); the National Defense
Authorization Act for Fiscal Year 2010 (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); and the Department of Defense Appropriations Act,
2010 (P.L. 111-118). Each of the enacted laws provides an exception which permits transfers
when effected 45 days after specified reporting requirements have been fulfilled. However, in
most of the measures, the 45-day exceptions apply only to transfers for the purpose of prosecution
or detention during legal proceedings.
The public laws and pending proposals address additional issues related to the treatment and
disposition of Guantanamo detainees. For example, Title XVIII of P.L. 111-84 establishes new
procedures for military commissions. Section 552 of P.L. 111-83 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.
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Contents
Introduction ................................................................................................................................ 1
Background ................................................................................................................................ 1
Enacted Laws.............................................................................................................................. 3
Restrictions on Transfer and Release ..................................................................................... 3
Restrictions on the Use of Funds to Release Detainees into the United States................... 3
15-Day Reporting Requirements for Release in or Transfer to Other Countries ................ 4
45-Day Reporting Requirements for Transfers to the United States.................................. 4
General Reporting Requirements..................................................................................... 6
Time Frames and Concurrent Application........................................................................ 7
Submission of Reports to Congress ................................................................................. 7
Other Relevant Provisions..................................................................................................... 8
Selected Pending Proposals ....................................................................................................... 10
Restrictions on Transfer or Release ..................................................................................... 11
Detainee Treatment ............................................................................................................. 12
Executive and Judicial Authorities....................................................................................... 12
Conclusion................................................................................................................................ 14
Tables
Table A-1. Provisions Restricting the Use of Funds to Transfer or Release Guantanamo
Detainees into the United States ............................................................................................. 15
Appendixes
Appendix. Comparison of Provisions Restricting Transfer or Release ........................................ 15
Contacts
Author Contact Information ...................................................................................................... 15
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Guantanamo Detention Center: Legislative Activity in the 111th Congress
Introduction
Recent announcements regarding the proposed transfer of individuals currently detained at the
U.S. Naval Station at Guantanamo Bay, Cuba, renewed attention to legislation addressing the
issue. In November 2009, the U.S. Department of Justice announced that five Guantanamo
detainees would be transferred to New York for prosecution.1 In December 2009, the President
issued a memorandum directing the transfer of detainees “who have been or will be designated
for relocation” to the Thomson Correctional Center, a maximum-security facility in Illinois, as
“expeditiously as possible.”2 The implementation of those proposals is reportedly on hold, with
alternative approaches being developed.3
Several enacted measures contain provisions which directly restrict or place reporting obligations
on transfers of Guantanamo detainees. This report surveys those provisions, together with other
legislation enacted or pending in the 111th Congress relevant to the detainees. 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.
Background
In 2001, Congress authorized the President’s use of “all necessary and appropriate force” against
those responsible for the 9/11 terrorist attacks.4 Pursuant to that authority, the United States has
captured suspected Al Qaeda and Taliban members and detained them at several locations,
including Guantanamo. Of the nearly 800 alleged enemy combatants whom the United States has
detained at Guantanamo throughout the course of post-9/11 military operations, all but 185
detainees have been released or transferred from the base.5 For the remaining Guantanamo
detainees, practical and legal hurdles, including national security concerns and questions
regarding detainees’ rights under international law and the U.S. Constitution, have delayed
prosecutions or made transfers difficult.6 In some cases, challenges have arisen because transfer
1 U.S. Department of Justice, Attorney General Announces Forum Decisions for Guantanamo Detainees (Nov. 13,
2009), http://www.justice.gov/ag/speeches/2009/ag-speech-091113.html.
2 Presidential Memorandum, Closure of Dentention Facilities at the Guantanamo Bay Naval Base (Dec. 15, 2009),
http://www.whitehouse.gov/the-press-office/presidential-memorandum-closure-dentention-facilities-guantanamo-bay-
naval-base.
3 See e.g., Charlie Savage, White House Delays 9/11 Trial Location Decision, Pittsburgh Post-Gazette (Mar. 6, 2010) at
A1; Jonathan Weisman and Evan Perez, Deal Near on Gitmo, Trials for Detainees, Wall St. J. (eastern ed.) (Mar 19,
2010) at A1.
4 Authorization to Use Military Force, P.L. 107-40 (2001). The authority applies to “nations, organizations, or persons”
who “planned, authorized, committed, or aided the terrorist attacks” and to people who harbored the perpetrators of the
attacks.
5 For tracking information regarding the Guantanamo detainee population, see Andrei Scheinkman et al., The
Guantanamo Docket, N.Y. Times, http://projects.nytimes.com/guantanamo.
6 For more detailed background information and an analysis of legal issues implicated by the potential closure of
Guantanamo, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John
Garcia et al.
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to a detainee’s country of origin might raise national security or human rights concerns but other
countries have been unreceptive to accepting detainees. Such was the scenario with detainees who
are ethnic Uighurs, a Turkic Muslim minority group from China, who were cleared for release but
for whom concerns regarding human rights abuses prevented transfer to their home country.7
Highlighting the prominence of the issue, three executive orders signed by President Obama
shortly after he took office address the Guantanamo detention facility or affect Guantanamo
detainees. To “promptly” close the detention facility and “in order to effect the appropriate
disposition of” Guantanamo detainees, one executive order required the closure of the detention
facility as soon as practicable, and no later than January 22, 2010.8 It also ordered an immediate
review of each detainee’s status and temporarily halted all proceedings before military
commissions.9 Two additional executive orders addressed overall wartime detention policy. One
limited the methods for interrogating persons in U.S. custody (as part of any armed conflict) to
those listed in the Army Field Manual on Human Intelligence Collector Operations, although it
provides an exception for interrogations by the Federal Bureau of Investigation, stating that the
FBI may “continu[e] to use authorized, non-coercive techniques of interrogation that are designed
to elicit voluntary statements and do not involve the use of force, threats, or promises.”10 A third
executive order established the Special Task Force on Detainee Disposition, tasked with
“identif[ying] lawful options” for the disposition of Guantanamo detainees and others captured by
the United States.11 Because executive orders can be revoked by subsequent presidential
directives, legislation would be necessary to make the President’s policies permanent. Likewise,
Congress may reverse or adjust the approach of the executive orders by statute in any area in
which it has the authority to act.
Key issues implicated by the potential closure of the detention facility include the transfer or
release of detainees and procedures for prosecuting them or assessing their enemy belligerency
status. Members have noted that issues related to the disposition of the remaining detainees
complicate any legislative actions to fund, mandate, or prohibit closure of the detention facility.
For example, when introducing a bill proposing a timeline for closure of the facility, Senator
Feinstein noted that “the hard part about closing Guantanamo is not deciding to go do it; it is
7 Emphasizing likely human rights abuses the Uighur detainees would likely suffer if returned to their native China, a
U.S. district court judge ordered them released into the United States, but the order was stayed and reversed by the U.S.
Court of Appeals for the District of Columbia Circuit. See Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009), cert.
granted, 78 U.S.L.W. 3237 (2009).
8 Executive Order 13492, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and
Closure of Detention Facilities, 74 Fed. Reg. 4897–4900 (Jan. 27, 2009).
9 Id. Congress enacted the Military Commissions Act of 2006, P.L. 109-366, to authorize the President to convene
military commissions to prosecute “alien unlawful enemy combatants.” The act exempted the new military
commissions from several requirements, codified in the Uniform Code of Military Justice, that would have otherwise
applied. For a detailed analysis of the military commissions created pursuant to the Military Commissions Act, see
CRS Report RL33688, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with
Previous DOD Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea. In May 2009, the Secretary of the
Department of Defense notified Congress of five proposed modifications to the procedures for the military
commissions established under the Military Commissions Act. See White House Press Release, Statement of President
Barack Obama on Military Commissions (May 15, 2009). The Military Commissions Act of 2009, Title XVIII of P.L.
111-84 (discussed infra) enacts further revisions.
10 Executive Order 13491, Ensuring Lawful Interrogations, 74 Fed. Reg. 4891–4896 (Jan. 27, 2009); Army Field
Manual, § FM 2-22.3, Human Intelligence Collector Operations, issued by the Department of the Army on September
6, 2006.
11 Executive Order 13493, Review of Detention Policy Options, 74 Fed. Reg. 4901–4902 (Jan. 27, 2009).
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figuring out what to do with the remaining detainees.”12 Thus, much of the legislative activity
related to Guantanamo has focused on the transfer, release, and treatment of detainees.
Enacted Laws
To date in the 111th Congress, relevant provisions have been enacted as part of six 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); and the Department of
Defense Appropriations Act, 2010 (P.L. 111-118). The 2009 Supplemental Act was the first
relevant act; although subsequent provisions differ slightly, provisions restricting the transfer and
release of detainees developed during conference committee deliberations for the 2009
Supplemental13 are reflected in subsequent measures. The National Defense Authorization Act
and the Homeland Security Appropriations Act each contain relevant provisions in addition to
those restricting detainees’ transfer or release. Subsequent FY2010 measures include provisions
restricting the transfer and release of detainees which mirror those in the Homeland Security
Appropriations measure.
Restrictions on Transfer and Release
All of the relevant measures enacted to date in the 111th Congress prohibit or place conditions on
the use of federal funds to release or transfer Guantanamo detainees into the United States. Such
measures may be prompted by perceived security risks to U.S. citizens that some argue could
arise if suspected terrorists were detained or tried in the United States.14
Restrictions on the Use of Funds to Release Detainees into the United States
All of the measures strictly ban the release of Guantanamo detainees into the United States (and
specified territories). The 2009 Supplemental Act banned the use of funds appropriated under that
or previous acts to release any Guantanamo detainee into the continental United States, Hawaii,
or Alaska.15 Section 1041 of the National Defense Authorization Act prohibits the Department of
Defense from using funds authorized to be appropriated to it by that act or otherwise available to
the department to release a Guantanamo detainee into the United States or its territories during
the period beginning October 1, 2009, and ending December 31, 2010.16 The remaining FY2010
measures similarly prohibit the use of federal funds—particularly those appropriated during the
2010 fiscal year—to transfer a Guantanamo detainee into the United States or specified
territories.17
12 155 Cong. Rec. S157 (daily ed. Jan. 7, 2009) (statement of Sen. Feinstein).
13 See H.Rept. 111-151.
14 See, e.g., Press release, Rep. J. Randy Forbes, Members Introduce Bill to Prevent Transfer of Terrorists to Virginia
Prisons (Mar. 2, 2009), available at http://forbes.house.gov/News/DocumentSingle.aspx?DocumentID=113008.
15 P.L. 111-32, § 14103(a).
16 P.L. 111-84, § 1041(a).
17 P.L. 111-83, § 552(a); P.L. 111-88, § 428(a); P.L. 111-117, § 532(a); P.L. 111-118, § 9011(a). The acts specifically
(continued...)
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15-Day Reporting Requirements for Release in or Transfer to Other Countries
The measures enacted during the 111th Congress permit the use of funds to effect the transfer or
release of a Guantanamo detainee to a foreign State. However, such actions are subject to
reporting requirements. The 2010 Homeland Security Appropriations, Interior Appropriations,
Consolidated Appropriations, and the Defense Appropriations Acts contain identical provisions
which restrict the use of appropriated funds to transfer or release a Guantanamo detainee to
another country or any “freely associated state.”18 The restrictions apply unless the President, 15
days prior to such transfer or release, submits the following information in classified form: (1) the
name of the detainee and the country or freely associated state to which he will be transferred; (2)
an assessment of the risk to national security or U.S. citizens posed by the transfer or release; and
(3) the terms of any agreement with the country or freely associated state that has agreed to
accept the detainee.19 The 2009 Supplemental Appropriations Act contains a provision that is
similar except that it does not specifically state its application to freely associated states.20
45-Day Reporting Requirements for Transfers to the United States21
Each of the enacted laws permits the use of funds to transfer detainees to the United States if the
President fulfills a reporting requirement 45 days prior to effecting the transfer.22 Although the
National Defense Authorization Act appears to authorize transfers for any purpose, the other acts
limit the purposes for which transfers may be made to prosecution or detention during legal
proceedings.23
(...continued)
enumerate the territories of Guam, American Samoa, the United States Virgin Islands, the Commonwealth of Puerto
Rico, and the Commonwealth of the Northern Mariana Islands. For an explanation regarding the funds to which the
restrictions apply, see infra note 35 and accompanying text.
18 The acts include the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau
within their definition of “freely associated states.”
19 P.L. 111-83, § 552(e); P.L. 111-88, § 428(e); P.L. 111-117, § 532(e); P.L. 111-118, § 9011(e).
20 P.L. 111-32, § 14103(e).
21 See also Table A-1 in the Appendix to this report.
22 The text of the relevant provisions makes clear that the use of funds is restricted “until 45 days after” (emphasis
added) the report has been submitted to Congress. See P.L. 111-32, § 14103(c); P.L. 111-83, § 552(c); P.L. 111-84, §
1041(b); P.L. 111-88, § 428(c); P.L. 111-117, § 532(c); P.L. 111-118, § 9011(c). When making the announcement
regarding the five detainees to be transferred to New York for prosecution, the Attorney General acknowledged that the
requirements would need to be fulfilled before the detainees could be transferred to New York. See U.S. Department of
Justice, Attorney General Announces Forum Decisions for Guantanamo Detainees (Nov. 13, 2009),
http://www.justice.gov/ag/speeches/2009/ag-speech-091113.html (noting that the “detainees will not be transferred to
the United States for prosecution until all legal requirements are satisfied, including those in recent legislation requiring
a 45 day notice and report to the Congress”).
23 P.L. 111-32, § 14103(c); P.L. 111-83, § 552(c); P.L. 111-88, § 428(c); P.L. 111-117, § 532(c); P.L. 111-118,
§9011(c). Because the phrase “legal proceedings” is not defined in the acts or discussed in any detail in the legislative
history, it is unclear what it encompasses. P.L. 111-32 was the first measure in which the phrase “for the purposes of
prosecuting such individual, or detaining such individual during legal proceedings” appears. The conference report for
that act states that the agreed-upon language “prohibits current detainees from being transferred to the U.S., except to
be prosecuted,” H.Rept. 111-151 at 141, which suggests a narrow meaning of the phrase. An alternative argument
might be that the phrase “legal proceedings” arguably extends to non-prosecution proceedings such as resolution of
petitions for habeas corpus relief.
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While the 45-day reporting requirements in the most recently enacted measures are nearly
identical, section 14103 of the 2009 Supplemental Appropriations Act (P.L. 111-32) and section
1041 of the 2010 National Defense Authorization Act (P.L. 111-84) are unique. Section 14103 of
P.L. 111-32 requires information, in classified form, which addresses (1) “findings of an analysis
regarding any risk to the national security of the United States that is posed by the transfer”; (2)
“costs associated with transferring the individual”; (3) “[t]he legal rationale and associated court
demands for transfer”; (4) “[a] plan for mitigation of any risk”; and (5) “[a] copy of a notification
to the Governor of the State to which the individual will be transferred ... with a certification by
the Attorney General of the United States in classified form at least 14 days prior to such transfer
(together with supporting documentation and justification) that the individual poses little or no
security risk to the United States.”24
Section 1041 of the 2010 National Defense Authorization Act requires a plan that includes (1) “an
assessment of the risk that the [detainee] poses to the national security of the United States, its
territories, or possessions”; (2) a proposal for the disposition of each detainee; (3) a plan to
mitigate any identified risks; (4) the proposed transfer location; (5) information regarding costs
associated with the transfer; (6) a “summary” of a “consultation” required to take place with the
local jurisdiction’s chief executive; and (7) “a certification by the Attorney General that under the
plan the individual poses little or no security risk to the United States, its territories, or
possessions.” The sixth component refers to a corresponding consultation requirement, which
requires that the President “consult with the chief executive” of the jurisdiction that is a proposed
location of transfer.25 It appears to contemplate a somewhat greater degree of involvement by
state governors than the Supplemental Appropriations Act, which requires a certification that a
governor has been “notified” regarding a transfer.
In all of the other measures, the components of the 45-day reports are identical and include some
information required by the 2009 Supplemental and the FY2010 Defense Authorization Acts. The
components include (1) “[a] determination of the risk that the individual might instigate an act of
terrorism within the continental United States, Alaska, Hawaii, the District of Columbia, or the
United States territories if the individual were so transferred”; (2) “[a]determination of the risk
that the individual might advocate, coerce, or incite violent extremism, ideologically motivated
criminal activity, or acts of terrorism, among inmate populations at incarceration facilities ...”; (3)
“costs associated with transferring the individual in question”; (4) “[t]he legal rationale and
associated court demands for transfer”; (5) “[a] plan for mitigation of any risks described [in the
first, second, or seventh components]”; (6) “[a] copy of a notification to the Governor of the State
to which the individual will be transferred ... with a certification by the Attorney General of the
United States in classified form at least 14 days prior to such transfer (together with supporting
documentation and justification) that the individual poses little or no security risk to the United
States”; and (7) “an assessment of any risk to the national security of the United States or its
citizens, including members of the Armed Services of the United States, that is posed by such
transfer and the actions taken to mitigate such risk.”26
The geographic applications of the 2009 Supplemental Act and the FY2010 Defense
Authorization Acts also differ from the other relevant FY2010 measures. The 2009 Supplemental
24 P.L. 111-32, § 14103(d).
25 P.L. 111-84, § 1041(d).
26 P.L. 111-83, § 552(d); P.L. 111-88, § 428(d); P.L. 111-117, § 532(d); P.L. 111-118, § 9011(d).
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Act appears to restrict transfers into the United States, only.27 In contrast, the Defense
Authorization Act restriction includes all U.S. “territories or possessions.”28 Similarly, each of the
other acts explicitly applies to all of the U.S. territories, namely Guam, American Samoa, the
United States Virgin Islands, the Commonwealth of Puerto Rico, and the Commonwealth of the
Northern Mariana Islands.29 They do not appear to apply to other U.S. possessions.30
General Reporting Requirements
Several of the enacted laws establish general reporting requirements which direct the executive to
report on the status of Guantanamo detainees. Section 319 of the Supplemental Appropriations
Act, 2009 (P.L. 111-32), requires the President to submit reports on the Guantanamo “prisoner
population” to specified Members31 of Congress within 60 days of the legislation’s enactment and
every 90 days thereafter. The reports must provide the following information with respect to each
detainee: (1) name and country of origin; (2) a “summary of the evidence, intelligence, and
information used to justify” his detention; and (3) a “current accounting of all the measures taken
to transfer” him to his home or another country. In addition, the reports must state the “number of
individuals released or transferred from detention ... who are confirmed or suspected of returning
to terrorist activities after release or transfer” and provide “an assessment of any efforts by al
Qaeda to recruit detainees released from detention.” The initial report (which was to be completed
within 60 days of the legislation’s enactment) was required to address several additional matters,
including (1) a “description of the process that was previously used for screening the detainees”
who have been released and are confirmed or suspected of returning to terrorist activities; (2)
“[a]n assessment of the adequacy of that screening process for reducing the risk that detainees
previously released or transferred ... would return to terrorist activities after [their] release or
transfer”; and (3) “[a]n assessment of lessons learned from previous releases and transfers of
individuals who returned to terrorist activities for reducing the risk that detainees released or
transferred ... will return to terrorist activities after their release or transfer.”32
In addition, both section 14103 of the 2009 Supplemental Act and section 532 of the 2010
Consolidated Appropriations Act establish reporting requirements which must be satisfied before
the executive may cease operations at the Guantanamo detention center. Specifically, they require
the President, before “the termination of detention operations” at the detention facility, to submit
a classified report to Congress which “describ[es] the disposition or legal status of each individual
27 P.L. 111-32, § 14103(b) (restricting transfers to the continental United States, Alaska, Hawaii, and the District of
Columbia).
28 P.L. 111-84, § 1041(b).
29 P.L. 111-83, § 552(c); P.L. 111-88, § 428(c); P.L. 111-117, § 532(c); P.L. 111-118, § 9011(c).
30 U.S. possessions not enumerated in the act include, for example, Baker Island and other island possessions.
31 Members to whom the report must be submitted include:
(1) The majority leader and minority leader of the Senate; (2) The Chairman and Ranking Member
on the Committee on Armed Services of the Senate; (3) The Chairman and Vice Chairman of the
Select Committee on Intelligence of the Senate; (4) The Chairman and Vice Chairman of the
Committee on Appropriations of the Senate; (5) The Speaker of the House of Representatives; (6)
The minority leader of the House of Representatives; (7) The Chairman and Ranking Member on
the Committee on Armed Services of the House of Representatives; (8) The Chairman and Vice
Chairman of the Permanent Select Committee on Intelligence of the House of Representatives; and
(9) The Chairman and Ranking Member of the Committee on Appropriations of the House of
Representatives.
32 P.L. 111-32, § 319.
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detained at the facility.”33 They do not specify the level of detail that the report must include with
respect to each detainee, nor do they appear to require any particular length of time between the
submission of the report and closure of the facility.
Time Frames and Concurrent Application
For funds appropriated during FY2010, several of the reporting requirements are likely to apply
concurrently. It is likely that the acts will be interpreted so as to avoid a conclusion that a later-
enacted provision implicitly repeals an earlier provision.34 Thus, to the extent that differing
reporting requirements apply to the same committee, they would presumably be read as having a
cumulative effect. In other words, it is likely that the executive will submit one or more reports to
the committee(s) of jurisdiction which fulfill all applicable requirements.
The restrictions vary in scope and applicable time frames. Restrictions in P.L. 111-32, the
Supplemental Appropriations Act, 2009, applied only to funds appropriated by that or any prior
act; although a later measure temporarily extended their application through October 31, 2009,
they do not appear to apply to later appropriated funds.35 The restriction in P.L. 111-84, the 2010
Defense Authorization Act, applies through December 31, 2010, but only to the use of funds
appropriated to the Department of Defense. In contrast, such restrictions in the 2010 Homeland
Security, Interior Department, Consolidated Appropriations, and Defense Appropriations Acts
(P.L. 111-83, P.L. 111-88, P.L. 111-117, and P.L. 111-118) appear to apply to all federal funds, but
only during the 2010 fiscal year (October 1, 2009-September 30, 2010).36
Submission of Reports to Congress
After the 2009 Supplemental Appropriations Act was enacted, the President assigned respective
reporting functions required by that act to the Attorney General, Director of National Intelligence,
and Secretary of State.37 Likewise, on November 30, 2009, the President assigned reporting
functions required by the three FY2010 acts to the Secretary of State, Secretary of Defense, and
the Attorney General.38 According to press accounts, the designated officials had not yet
submitted a 45-day report to Congress as of late 2009.39
33 Id. at § 14103(f); P.L. 111-117, § 532(h).
34 Whenever possible, courts interpret two potentially conflicting provisions so as to give effect to both provisions,
rather than interpret one as impliedly repealing the other. This rule is especially compelling here, where the potentially
conflicting statutes were enacted during the same session or, in the case of the Homeland Security and Defense
Authorization bills, on the same day. See Watt v. Alaska, 451 U.S. 259, 267 (1981); Pullen v. Morgenthau, 73 F.2d 281
(2d Cir. 1934). For more information regarding statutory interpretation principles, see CRS Report 97-589, Statutory
Interpretation: General Principles and Recent Trends, by Larry M. Eig and Yule Kim.
35 See P.L. 111-32, § 14103 (referring throughout to “funds made available in this or any prior Act”) (emphasis added);
Legislative Branch Appropriations Act, 2010, P.L. 111-68, § 115 (extending the § 14103 provisions).
36 In appropriations acts, the phrase “or any other act” is typically interpreted as applying to any appropriation for the
same fiscal year as the act in question. See Williams v. United States, 240 F.3d 1019, 1063 (Fed. Cir. 2001) (“[T]he
words ‘or by any other Act’ ... are not words of futurity; they merely refer to any other appropriations act for the same
fiscal year.”) (citations omitted). The relevant provisions in P.L. 111-83, P.L. 111-84, P.L. 111-117, and P.L. 111-118
restrict the use of funds appropriated by those “or any other act[s].” Thus, the restrictions appear to apply to any funds
appropriated for FY2010, but they would not apply to funds appropriated in future fiscal years.
37 Presidential Memorandum, Assignment of Reporting Functions Under the Supplemental Appropriations Act, 2009,
74 Fed. Reg. 35765 (Jul. 21, 2009).
38 Presidential Memorandum, Assignment of Functions Under the National Defense Authorization Act for Fiscal Year
(continued...)
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The Defense Authorization Act, P.L. 111-84, requires the submission of the 45-day reports to the
congressional defense committees in particular.40 The other acts require their submission “to
Congress” or “to the Congress,” without specifying individual Members or committees.41 Those
general phrases have been interpreted to refer to the committees of jurisdiction. Thus, reports
submitted to the clerk of the House and Senate would likely be given to committees deemed to
have jurisdiction over the underlying legislation or subject matter.42
Other Relevant Provisions
Provisions other than those restricting detainees’ transfer or release have significant implications
for persons held at Guantanamo. First, Title XVIII of the National Defense Authorization Act
(P.L. 111-84), the Military Commissions Act of 2009, establishes new procedures governing
military commissions.43 Examples of changes enacted in the measure include a prohibition on the
use of evidence elicited by cruel or degrading treatment, without regard to when the statement
was made; a shift to the government of the burden of proof for the reliability of hearsay evidence;
an extension of the obligation to disclose exculpatory information to include evidence of
mitigating circumstances; a new requirement that limits military commissions’ jurisdiction to
offenses which occurred “in the context of and associated with armed conflict”; and a detailed set
of procedures regarding the use of classified evidence. Although proposals had been introduced
earlier in the 111th Congress that would have abolished military commissions altogether,44
Congress has instead opted to pass legislation which preserves the military commission system
while amending the statutory framework.
Section 1040 of the same act restricts the reading of the warnings required in the domestic
criminal law enforcement context by the Supreme Court decision in Miranda v. Arizona.45
(...continued)
2010; the Department of Homeland Security Appropriations Act, 2010; and the Department of the Interior,
Environment, and Related Agencies Appropriations Act, 2010 (Nov. 30, 2009), http://www.whitehouse.gov/the-press-
office/presidential-memorandum-assignment-functions-under-national-defense.
39 See, e.g., Richard Esposito, AG Eric Holder in NYC for Terror Trial Summit (Dec. 9, 2009), http://abcnews.go.com/
Blotter/york-grand-jury-hears-evidence-911-terror-trial/story?id=9291998 (“Congressional sources said notification has
not yet happened.”).
40 P.L. 111-84, § 1041(c).
41 P.L. 111-32, § 14103(d); P.L. 111-83, § 552(d); P.L. 111-88, § 428(d); P.L. 111-117, § 532(d); P.L. 111-118, §
9011(d).
42 For more information regarding the jurisdiction of congressional committees, see CRS Report 98-175, House
Committee Jurisdiction and Referral: Rules and Practice, by Judy Schneider. See also Rules of the House of
Representatives, Rule X; Rules of the Senate, Rule XXV.
43 One likely motivation for the new procedures is judicial opinions invalidating provisions of the Military
Commissions Act of 2006. See Boumediene v. Bush, 553 U.S. 723 (2008) (invalidating the provision in the act that
purported to foreclose habeas corpus challenges brought by Guantanamo detainees). For more information regarding
the military commissions, see CRS Report R40752, The Military Commissions Act of 2006 (MCA): Background and
Proposed Amendments, by Jennifer K. Elsea.
44 For example, the Interrogation and Detention Reform Act of 2008, H.R. 591, referring to the “failure of the military
commissions system,” would abolish the military commission system. Instead, prosecutions would take place in federal
civilian courts or in military court proceedings.
45 The section would also require the Secretary of Defense to submit a report within 90 days of the act’s enactment. The
report would assess how the reading of Miranda rights to individuals taken into custody in Afghanistan “may affect: (1)
the rules of engagement of the Armed Forces deployed in support of Operation Enduring Freedom; (2) post-capture
interrogations and intelligence-gathering activities conducted as part of Operation Enduring Freedom; (3) the overall
(continued...)
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Applying Miranda,46 courts generally do not admit defendants’ statements at trial unless law
enforcement officers first advise them, with the warnings beginning with “You have the right to
remain silent,” of their Fifth Amendment right against self-incrimination.47 Section 1040 prohibits
the reading of Miranda warnings, absent a court order requiring that such warnings be read, to
any “foreign national who is captured or detained as an enemy combatant by the United States.”48
Thus, it applies to all foreign nationals detained as enemy belligerents (presumably including
prisoners of war), rather than just foreign nationals detained at Guantanamo.49 However, the
section does not prohibit warnings made by the Department of Justice.
Finally, section 1080 requires, among other things, that the Department of Defense “ensure that
each strategic intelligence interrogation of any person who is in the custody or under the effective
control of the Department of Defense or under detention in a Department of Defense facility is
videotaped or otherwise electronically recorded.”
The Homeland Security Appropriations Act includes two additional provisions affecting the
treatment of Guantanamo detainees. Section 553, which appears to apply beyond the end of the
2010 fiscal year, requires that former detainees be included on the “No Fly List,” “unless the
President certifies in writing to Congress that the detainee poses no threat to the United States, its
citizens, or its allies.”50 A second provision prohibits the use of funds appropriated under that act
to “provide any immigration benefit” to any former Guantanamo detainee, including a visa,
admission into the United States, parole into the United States, or classification as a refugee or
applicant for asylum.51 The prohibition is similar to proposals introduced earlier during the 111th
(...continued)
counterinsurgency strategy and objectives of the United States for Operation Enduring Freedom; (4) United States
military operations and objectives in Afghanistan; and (5) potential risks to members of the Armed Forces operating in
Afghanistan.”
46 384 U.S. 436 (1966).
47 Fifth Amendment protections concerning the right against self-incrimination and due process serve as dual bases for
exclusion of evidence perceived to be coercive. U.S. Const. amend. V (“No person ... shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”).
Interrogations are generally presumed to be coercive unless Miranda warnings have been given or an exception to the
Miranda requirement applies.
48 Section 504 of the version of the Intelligence Authorization Act for Fiscal Year 2010, H.R. 2701, reported in the
House, contains a similar prohibition. In addition, § 744 of the Financial Services and General Government
Appropriations Act, 2010, H.R. 3170, “requests the President, and directs the Attorney General, to transmit to each
House of Congress ... copies of any portions of all documents, records, and communications in their possession
referring or relating to the notification of rights under [Miranda] ... to ... detainees in the custody of the Armed Forces
of the United States.”
49 It is unclear how, if at all, this provision will affect the warning requirement in Article 31 of the Uniform Code of
Military Justice, 10 U.S.C. § 831, which prohibits military personnel from interrogating an accused or suspected
person, arguably including a person captured during hostilities, without first informing him of the nature of the
accusation and advising him that he does not have to make any statement regarding the offense ... ”. A narrow reading
of section 1040 might not encompass the Article 31 warnings because they technically differ from the warnings
required by Miranda.
50 P.L. 111-83, § 553(a). The provision amends 49 U.S.C. § 44903(j)(2)(C). Two bills previously introduced in the
House would have similarly required that Guantanamo detainees’ names be added to the Transportation Security
Administration’s “No Fly List.” See A bill to amend title 49, United States Code, to require inclusion on the no fly list
certain detainees housed at the Naval Air Station, Guantanamo Bay, Cuba, H.R. 2503, 111th Cong. (2009);
Transportation Security Administration Authorization Act, H.R. 2200, 111th Cong. (2009) at § 405(a).
51 P.L. 111-83, § 552(f).
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Congress; however, the other proposals would apply permanently, whereas the prohibition in the
Homeland Security Appropriations Act appears to apply only to funds appropriated by that act.52
Selected Pending Proposals
As mentioned, numerous legislative proposals introduced during the 111th Congress address the
disposition or treatment of Guantanamo detainees. Some bills introduced shortly after the
issuance of the three relevant January 2009 executive orders suggest specific time frames for
closure of the Guantanamo detention facility.53 In introductory remarks regarding one such bill,
Representative Harman said that closure was necessary because the detention facility is “so
widely viewed as illegitimate, so plainly inconsistent with America’s proud legal traditions, that it
has become a stinging symbol of our tarnished standing abroad.”54 However, as shown, recent
legislative activity related to Guantanamo detentions has favored restrictions on the use of
appropriated funds to effectuate Guantanamo detainees’ transfer or release, possibly signaling an
approach by Congress to delay closure at least until more information has been received.
Many of the early bills are reflected in the enacted public laws. For example, enacted provisions
mirror bills which were introduced to prohibit the transfer of detainees, replace the military
commissions framework, or restrict Guantanamo detainees’ access to immigration benefits.55
52 For example, H.R. 1238 would make an alien detained at Guantanamo “permanently ineligible” for both “admission
to the United States for any purpose” and “parole into the United States or any other physical presence in the United
States that is not regarded as an admission.” Likewise, S. 1071, the Protecting America’s Communities Act, would
amend the Immigration and Nationality Act to prohibit the admission, asylum entry, or parole entry of a Guantanamo
detainee into the United States. It would also require that a Guantanamo detainee be detained for an additional six
months after the “removal period” if the Secretary of Homeland Security certifies that: (1) the detainee “cannot be
removed due to the refusal of all countries designated by the [detainee] or under this section to receive the [detainee]”;
and (2) “the Secretary is making reasonable efforts to find alternative means for removing the [detainee].” Similarly,
the Protection from Enemy Combatants Act, S. 108, would forbid the release by a U.S. court of any “covered alien”—
defined as any person who “was detained” at Guantanamo—into the United States. Protection from Enemy Combatants
Act, S. 108, 111th Cong. (2009). It would also bar the issuance of an immigration visa or the granting of any
immigration status that might facilitate a detainee’s entry into the United States or continued presence after release
from custody. However, S. 108 contains a waiver provision that would allow the President to remove the restriction
where doing so would be “consistent with the national security of the United States.” S. 1081, introduced by Senator
Graham, includes measures similar to those in H.R. 1238 and S. 108, but it would apply only to non-U.S. citizens who
had been determined by a Combatant Status Review Tribunal to be enemy combatants. A bill to prohibit the release of
enemy combatants into the United States, S. 1081, 111th Cong. (2009).
53 By requiring closure of the base within 180 days of enactment, the Interrogation and Detention Reform Act of 2008,
H.R. 591, proposed the shortest time frame. The Terrorist Detainees Procedures Act of 2009, H.R. 1315, provided a
target date of December 31, 2009, which is slightly sooner than the date set by the President’s executive order. Two
companion bills, S. 147 and H.R. 374, would require closure within one year. The companion bills’ time line
corresponds with the one-year timetable set in President Obama’s executive order, although the one-year mark set by
the bills would track the date of the legislation’s enactment. All of these bills also provided corresponding options and
restrictions governing the transfer and prosecution of detainees.
54 155 Cong. Rec. E59 (daily ed. Jan. 9, 2009) (extended remarks of Rep. Harman).
55 For example, H.R. 148, H.R. 565, H.R. 633, H.R. 701, H.R. 794, H.R. 817, H.R. 829, H.R. 951, H.R. 1073, H.R.
1186, H.R. 1566, H.R. 2315, and H.R. 4120 propose prohibitions on the use of federal funds for transferring
Guantanamo detainees to particular locations within the United States. Like the 2010 Defense Authorization Act (P.L.
111-84), H.R. 1315, the Terrorist Detainees Procedures Act of 2009, would have repealed the Military Commissions
Act of 2006. It would also have established new procedures for hearings by combatant status review tribunals. And
similar to the approach in the 2010 homeland security appropriations act (P.L. 111-83), H.R. 1238 would have made an
alien detained at Guantanamo “permanently ineligible” for both “admission to the United States for any purpose” and
(continued...)
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Other proposals introduced during the 111th Congress raise issues not addressed in the enacted or
pending authorization and appropriations measures. Such proposals might become relevant as
closure of the Guantanamo detention facility appears more imminent or as Congress reviews the
United States’ overall wartime detention policies.
Restrictions on Transfer or Release
Some proposals would further restrict the transfer or release of Guantanamo detainees. The
House-passed version of the Intelligence Authorization Act for Fiscal Year 2010, H.R. 2701,
would restrict the use of federal funds by the Director of National Intelligence to transfer
Guantanamo detainees to the United States, unless a report was submitted 120 days prior to the
transfer.56 Because the restriction applies to funds appropriated “for fiscal year 2010 or any
subsequent fiscal year,” its effect would appear to continue beyond the current fiscal year. The bill
also includes additional one-time reporting requirements related to intelligence information.57 A
related Senate bill, S. 1494, contains a different reporting provision but would not restrict the use
of funds to transfer detainees.58
A few bills would establish a broader restriction on the transfer of Guantanamo detainees than
exists in current law. For example, H.R. 4441 and S. 370 would restrict the use of federal funds,
without exceptions, to (1) transfer a Guantanamo detainee “to any military or prison installation
located in the United States”; or (2) “build, modify, or enhance any facility in the United States
for the purpose of housing” Guantanamo detainees.59
Regarding transfers to other countries, H.R. 4464 would prohibit the transfer or release of
Guantanamo detainees to any country that is “recognized by the Department of State or the
Department of Defense as a haven of any manner, kind, or fashion for terrorist activity or that has
been classified as a state sponsor of terrorism.”60 H.R. 4490 and H.R. 4600 would each prohibit
the transfer or release of a Guantanamo detainee to another country until specified certifications
had been made.61
(...continued)
“parole into the United States or any other physical presence in the United States that is not regarded as an admission.”
56 Intelligence Authorization Act for Fiscal Year 2010, H.R. 2701, 111th Cong. (2010). See also Table A-1 in the
Appendix to this report.
57 Specifically, the bill would require reports, to be submitted within 30 days of the legislation’s enactment, regarding:
(1) intelligence relating to detainees’ recidivism to terrorist activities; and (2) intelligence relating to threats posed by
current and former Guantanamo detainees who are ethnic Uighurs.
58 Intelligence Authorization Act for Fiscal Year 2010, S. 1494, 111th Cong. (2010). Section 337 of the Senate bill
requires that the Director of National Intelligence submit a report “outlining the Director’s assessment of the suitability
for release or transfer for detainees previously released or transferred, or to be released or transferred, from the Naval
Detention Facility at Guantanamo Bay, Cuba to the United States or any other country,” to include specified
information.
59 Stop Terrorist Entry Program Act of 2010, H.R. 4441, 111th Cong. (2010); Guantanamo Bay Detention Facility Safe
Closure Act of 2009, S. 370, 111th Cong. (2009).
60 Prevent Terrorists from Reuniting with Terrorist Cells Act, H.R. 4464, 111th Cong. (2010).
61 Detainee Transfer and Release Security Act of 2010, H.R. 4490, 111th Cong. (2010); A bill to prohibit the use of
funds to transfer or release an individual detained at Guantanamo Bay Naval Base to the custody of another country,
H.R. 4600, 111th Cong. (2010).
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Detainee Treatment
Several pending bills address the treatment of persons detained at the Guantanamo detention
facility or elsewhere. Companion bills, S. 147 and H.R. 374, propose that interrogations of all
persons in custody of U.S. intelligence agencies be conducted in accordance with the U.S. Army
Field Manual.62 Such legislation would foreclose the possibility, left open in President Obama’s
executive order on interrogation, that techniques other than those in the Army Field Manual could
eventually be deemed appropriate for use by agencies outside the military.63
A few bills would restrict detainees’ access to public benefits or medical facilities. H.R. 2338
would make those detained at Guantanamo as of the bill’s enactment and subsequently transferred
to the United States “permanently ineligible” for specified federal, state, or local benefits.64
Another bill, H.R. 1042, prohibits the provision of medical treatment to Guantanamo detainees in
any facility where members of the armed forces also receive treatment or in any facility operated
by the Department of Veteran’s Affairs.65 To the extent that H.R. 1042 would result in
withholding medical care, it is possible that it would raise legal concerns regarding U.S.
compliance with international treaty obligations.66
Executive and Judicial Authorities
Several other pending bills address broad issues related to judicial authority to review habeas
corpus petitions or to executive authority to detain enemy belligerents or prosecute detainees.
Several pending bills would restrict the U.S. Department of Justice’s use of federal funds to
conduct prosecutions of Guantanamo detainees or others with possible ties to the 9/11 terrorist
attacks. For example, S. 2795 and H.R. 4542 would prohibit the use of such funds to prosecute
62 Lawful Interrogation and Detention Act, H.R. 374, 111th Cong; Lawful Interrogation and Detention Act, S. 147, 111th
Cong.
63 Executive Order, Ensuring Lawful Interrogations, January 22, 2009, available at http://www.whitehouse.gov/
the_press_office/EnsuringLawfulInterrogations/.
64 No Welfare for Terrorists Act of 2009, H.R. 2338, 111th Cong. (2009). The provision would presumably apply even
if a court determined a detainee to have been wrongfully held.
65 To prohibit the provision of medical treatment to enemy combatants detained by the United States at Naval Station,
Guantanamo Bay, Cuba, in the same facility as a member of the Armed Forces or Department of Veterans Affairs
medical facility, H.R. 1042, 111th Cong. (2009).
66 Treatment of wartime detainees in the conflict with al Qaeda and the Taliban is primarily governed by the Detainee
Treatment Act of 2005 and Common Article 3 of the Geneva Conventions. Pursuant to the Detainee Treatment Act of
2005, all persons in the custody or control of the U.S. military (including Guantanamo detainees) must be treated in
accordance with Army Field Manual requirements. Section 1002 of P.L. 109-148 requires the DOD to follow the Army
Field Manual for intelligence interrogation. See Department of the Army Field Manual 2-22.3 (FM 34-52), Human
Intelligence Collector Operations (2006). Under Common Article 3, detainees must be treated humanely and protected
from “violence to life and person,” “cruel treatment and torture,” and “outrages upon personal dignity, in particular,
humiliating and degrading treatment.” “Common Article 3” refers to the third article in each of the four Geneva
Conventions, 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); 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); the Convention Relative to the
Treatment of Prisoners of War, August 12, 1949 (6 UST 3316); and the Convention Relative to the Protection of
Civilian Persons in Time of War, August 12, 1949 (6 UST 3516). The U.S. Supreme Court determined that, at a
minimum, Common Article 3 applies to persons captured in the conflict with Al Qaeda. Hamdan v. Rumsfeld, 548 U.S.
557 (2006).
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Guantanamo detainees in criminal courts in the United States or its territories or possessions.67
Although the bills do not define the term “criminal court,” it is likely that it would extend to
prosecutions in both Article III (i.e., judicial-branch) courts and in any military commissions that
may be established in the United States. Companion bills, S. 2977 and H.R. 4556, may apply to
individuals other than Guantanamo detainees. They would prohibit the Department of Justice’s
use of federal funds to commence or continue the prosecution in an Article III court of any
individual who: is suspected of “planning, authorizing, organizing, committing, or aiding the
attacks on the United States and its citizens that occurred on September 11, 2001”; is not a citizen
of the United States; and is subject to proceedings before a military commission.68 An alternative
proposal, H.R. 4588, would affirmatively require that Guantanamo detainees be tried only in
military commissions.69
Conversely, several proposals would reaffirm or extend executive authority. The Protecting
America’s Communities Act, S. 1071, would “reaffirm” the President’s authority to “detain
enemy combatants in connection with the continuing armed conflict with al Qaeda, the Taliban,
and associated forces ... regardless of the place of capture.”70 Similarly, the Enemy Combatant
Detention Review Act of 2009, H.R. 630, “reaffirms that the President is authorized to detain
enemy combatants in connection with the continuing armed conflict with al Qaeda, the Taliban,
and associated forces, regardless of the place of capture, until the termination of hostilities.”71
These provisions would perhaps extend the President’s authority to preventively detain enemy
belligerents as part of post-9/11 military operations. In Hamdi v. Rumsfeld, the Supreme Court
held that the 2001 Authorization to Use Military Force authorized the President to preventively
detain enemy combatants captured during hostilities in Afghanistan but did not address whether
such authority extends to captures made in other locations.72 With the language “regardless of
place of capture,” S. 1071 and H.R. 630 appear to authorize preventative detentions of any
alleged al Qaeda or Taliban belligerent, even if captured outside military operations in
Afghanistan.
H.R. 630 would also amend the federal habeas corpus statute.73 For example, it would (1) grant
exclusive jurisdiction over habeas challenges to the U.S. District Court in the District of
Columbia; (2) establish a rebuttable presumption that detainees are enemy combatants for the
purpose of habeas review; and (3) require that habeas proceedings be stayed after charges are
brought under the Military Commissions Act and until a detainee has exhausted review
procedures established by that act. Because it stays habeas review only for detainees against
whom charges have been brought, this proposal differs from the broader denial of habeas review
which the Supreme Court struck down as constitutionally invalid in Boumediene v. Bush.74 It is
unclear whether this distinction would be sufficient to withstand judicial scrutiny.
67 Stopping Criminal Trials for Guantanamo Terrorists Act of 2009, S. 2795, 111th Cong. (2009); Stopping Criminal
Trials for Guantanamo Terrorists Act of 2010, H.R. 4542, 111th Cong. (2010).
68 A bill to prohibit the use of Department of Justice funds for the prosecution in Article III courts of the United States
of individuals involved in the September 11, 2001, terrorist attacks, S. 2977/H.R. 4556, 111th Cong. (2010).
69 Detainee Trials at Gitmo Act, H.R. 5488, 111th Cong. (2010).
70 Protecting America’s Communities Act, S. 1071, 111th Cong. (2009).
71 Enemy Combatant Detention Review Act of 2009, H.R. 630, 111th Cong. (2009).
72 542 U.S. 507 (2004).
73 28 U.S.C. §2241.
74 553 U.S. 723 (2008) (holding that the constitutional privilege of habeas corpus applies to Guantanamo detainees and
that provisions in the Military Commissions Act do not provide an adequate substitute for habeas claims). For more
(continued...)
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The Terrorist Detainees Procedures Act of 2009, H.R. 1315, would likewise grant exclusive
jurisdiction over habeas challenges to the U.S. District Court in the District of Columbia and stay
pending habeas cases.75 However, in contrast to H.R. 630, it would stay habeas proceedings not
to facilitate Military Commissions Act procedures but to await the outcome of status review
hearings held by panels of military judges. In addition, the time period in which judges would
render decisions in the status review process would be sharply limited—to 120 days from the
legislation’s enactment for all detainees.
Finally, several House resolutions would possibly facilitate greater congressional oversight.
Namely, H.Res. 920, H.Res. 922, and H.Res. 923 would require or request the transmittal to the
House of Representatives of relevant documents or information in the possession of the Attorney
General, Secretary of Homeland Security, and the President, respectively. In each case, the
request or direction includes a 14-day timeline for transmittal.
Conclusion
Some bills introduced during the time frame of President Obama’s executive orders indicated
initial support for closure of the detention facility. In contrast, restrictions on the use of federal
funds in authorization and appropriations measures enacted to date in the 111th Congress arguably
signal Congress’s present reluctance to facilitate closure of the detention facility, at least in the
absence of significant congressional oversight. In particular, restrictions on the use of
appropriated funds in multiple public laws appear to indicate opposition to the release and
transfer of detainees into the United States. However, exceptions to the restrictions suggest
congressional approval for transfers, particularly for the purpose of prosecution, which follow the
presentation to Congress of risk assessments and other information.
Other changes effected by legislation enacted in the 111th Congress, such as new military
commissions procedures, are likely to significantly impact the treatment and disposition of
Guantanamo detainees. These and pending proposals are also likely to inform future legislative
debates regarding the treatment and rights of detainees at Guantanamo and elsewhere.
(...continued)
information on the Boumediene decision, see CRS Report RL34536, Boumediene v. Bush: Guantanamo Detainees’
Right to Habeas Corpus, by Michael John Garcia.
75 Terrorist Detainees Procedures Act of 2009, H.R. 1315, 111th Cong. (2009).
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Appendix. Comparison of Provisions Restricting
Transfer or Release
Table A-1. Provisions Restricting the Use of Funds to Transfer or Release
Guantanamo Detainees into the United States
H.R. 2701
P.L. 111-32
P.L. 111-83
P.L. 111-84
P.L. 111-88
P.L. 111-117
P.L. 111-118
(House passed)
Restricted
Federal funds
Federal funds
Department
Federal funds
Federal funds
Federal funds
Director of
funds
appropriated
appropriated
of Defense
appropriated
appropriated
appropriated
National
in “this or any
in “this or
funds
in “this or
in “this or any
in “this or any
Intelligence funds
prior act”
any other
(restriction
any other
other act”
other act”
appropriated in
act”
applies
act”
2010 or “any
10/1/09-
subsequent fiscal
12/31/2010)
year”
Geographic
United States
United States
United States
United States
United States
United States
United States and
scope for
and specified
and its
and specified
and specified
and specified
its territories and
funds
territories
territories
territories
territories
territories
possessions
limitation
and
possessions
Exception
Purpose of
Purpose of
Transfer (no
Purpose of
Purpose of
Purpose of
Transfer or
(all require
prosecution or prosecution
apparent
prosecution
prosecution or prosecution
release (no
fulfillment of
detention
or detention
requirement
or detention
detention
or detention
apparent
reporting
during legal
during legal
of a
during legal
during legal
during legal
requirement of a
requirement) proceedings
proceedings
prosecution
proceedings
proceedings
proceedings
prosecution
purpose)
purpose)
Report
45 days prior
45 days prior
45 days prior
45 days prior
45 days prior
45 days prior
120 days prior to
(transfer to
to transfer;
to transfer; 7
to transfer; 7
to transfer; 7
to transfer; 7
to transfer; 7
transfer; 4
United
classified; 5
requirements. requirements
requirements. requirements.
requirements.
requirements
States)
requirements
(includes
(includes
(includes
(includes
(includes
(includes
(includes
certification
summary of
certification
certification of
certification of
summary of
certification of
of 14-day
“consultation” of 14-day
14-day
14-day
“consultation”
14-day
notification
with state
notification
notification to
notification to
with state
notification to
to state
officials)
to state
state officials)
state officials)
officials)
state officials)
officials)
officials)
Author Contact Information
Anna C. Henning
Legislative Attorney
ahenning@crs.loc.gov, 7-4067
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