FINAL REPORT 

GUANTANAMO REVIEW 

TASK FORCE 

January 22, 2010 

Department of Justice 

Department of Defense 

Department of State 

Department of Homeland Security 

Office of the Director 

of National Intelligence 

Joint Chiefs of Staff 
 

 

 

EXECUTIVE SUMMARY 

On January 22, 2009, the President issued Executive Order 13492, calling for a 

prompt and comprehensive interagency review of the status of all individuals currently 

detained at the Guantanamo Bay Naval Base and requiring the closure of the detention 

facilities there. The Executive Order was based on the finding that the appropriate 

disposition of all individuals detained at Guantanamo would further the national security 

and foreign policy interests of the United States and the interests of justice. 

One year after the issuance of the Executive Order, the review ordered by the 

President is now complete. After evaluating all of the detainees, the review participants 

have decided on the proper disposition—transfer, prosecution, or continued detention— 

of all 240 detainees subject to the review. 

Each of these decisions was reached by the unanimous agreement of the agencies 

responsible for the review: the Department of Justice, Department of Defense, 

Department of State, Department of Homeland Security, Office of the Director of 

National Intelligence, and Joint Chiefs of Staff. 

Review Process 

To implement the President’s order, the Attorney General, as the coordinator of 

the review, established the Guantanamo Review Task Force and a senior-level Review 

Panel. The Task Force was responsible for assembling and examining relevant 

information on the Guantanamo detainees and making recommendations on their proper 

dispositions. The Review Panel, consisting of officials with delegated authority from 

their respective agencies to decide the disposition of each detainee, reviewed the Task 

Force’s recommendations and made disposition decisions on a rolling basis. Where the 

Review Panel did not reach consensus, or where higher-level review was appropriate, the 

agency heads (“Principals”) named in the Executive Order determined the proper 

disposition of the detainee. 

Key features of the review process included: 

•	 Comprehensive Interagency Review. The Task Force consisted of more 

than 60 career professionals, including intelligence analysts, law enforcement 

agents, and attorneys, drawn from the Department of Justice, Department of 

Defense, Department of State, Department of Homeland Security, Central 

Intelligence Agency, Federal Bureau of Investigation, and other agencies 

within the intelligence community. 

•	 Rigorous Examination of Information. The Task Force assembled large 

volumes of information from across the government relevant to determining 

the proper disposition of each detainee. Task Force members examined this 

information critically, giving careful consideration to the threat posed by the 

detainee, the reliability of the underlying information, and the interests of 

national security. 

i 
 

 

•	 Unanimous Decision-Making by Senior Officials. Based on the Task 

Force’s evaluations and recommendations, senior officials representing each 

agency responsible for the review reached unanimous determinations on the 

appropriate disposition for all detainees. In the large majority of cases, the 

Review Panel was able to reach a consensus. Where the Review Panel was 

not able to reach a unanimous decision—or when additional review was 

appropriate—the Principals met to determine the proper disposition. 

Results of the Review 

The decisions reached on the 240 detainees subject to the review are as follows: 

•	 126 detainees were approved for transfer. To date, 44 of these detainees have 

been transferred from Guantanamo to countries outside the United States. 

•	 44 detainees over the course of the review were referred for prosecution 

either in federal court or a military commission, and 36 of these detainees 

remain the subject of active cases or investigations. The Attorney General has 

announced that the government will pursue prosecutions against six of these 

detainees in federal court and will pursue prosecutions against six others in 

military commissions. 

•	 48 detainees were determined to be too dangerous to transfer but not feasible 

for prosecution. They will remain in detention pursuant to the government’s 

authority under the Authorization for Use of Military Force passed by 

Congress in response to the attacks of September 11, 2001. Detainees may 

challenge the legality of their detention in federal court and will periodically 

receive further review within the Executive Branch. 

•	 30 detainees from Yemen were designated for “conditional” detention based 

on the current security environment in that country. They are not approved 

for repatriation to Yemen at this time, but may be transferred to third 

countries, or repatriated to Yemen in the future if the current moratorium on 

transfers to Yemen is lifted and other security conditions are met. 

Looking Ahead 

With the completion of the review, an essential component of the effort to close 

the Guantanamo detention facilities has been accomplished. Beyond the review, 

additional work remains to be done to implement the review decisions and to resolve 

other issues relating to detainees. The Task Force has ensured that its analyses of the 

detainees and the information collected in the course of the review are properly preserved 

to assist in the resolution of these issues going forward. 

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TABLE OF CONTENTS
 

I. Introduction .............................................................................................................. 1 

II. Background .............................................................................................................. 1
 

III. The President’s Executive Order .............................................................................. 2 

IV. Implementing the Executive Order: The Guantanamo Review Task Force ........... 3 

A. Establishment of the Task Force ........................................................................ 3 

B. Task Force Structure........................................................................................... 3 

C. Guantanamo Review Panel ................................................................................. 4 

D. Task Force Information Collection .................................................................... 5 

E. Review Phases .................................................................................................... 6 

V. Detainee Review Guidelines .................................................................................... 7 

A. Transfer Guidelines ............................................................................................ 7 

B. Prosecution Guidelines ....................................................................................... 7 

C. Detention Guidelines .......................................................................................... 8 

D. Review of Information ....................................................................................... 9 

VI. Results of the Review............................................................................................... 9 

A. Overview of Decisions ....................................................................................... 9 

B. Overview of the Guantanamo Detainee Population ......................................... 13 

VII. Transfer Decisions.................................................................................................. 15
 

A. Background....................................................................................................... 15 

B. Decisions........................................................................................................... 16 

C. Yemeni Detainees ............................................................................................. 18 

VIII. Prosecution Decisions ............................................................................................ 19 

A. Background....................................................................................................... 19 

B. Decisions........................................................................................................... 20 

C. Detainees Who Cannot Be Prosecuted ............................................................. 22 

IX. Detention Decisions ............................................................................................... 23 

A. Background....................................................................................................... 23 

B. Decisions........................................................................................................... 23 

C. Continued Reviews........................................................................................... 25 

X. Conditional Detention Decisions: Yemeni Detainees ........................................... 25 

XI. Diplomatic Efforts .................................................................................................. 26 

XII. Conclusion.............................................................................................................. 28
 

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I. Introduction 

An essential component of the President’s order calling for the closure of the 

detention facilities at the Guantanamo Bay Naval Base was the initiation of a new and 

rigorous interagency review of all individuals detained there. The purpose of the review 

was to collect and examine information from across the government to determine which 

detainees the United States should transfer or release from custody, prosecute, or 

otherwise lawfully detain. 

This review is now complete. After carefully considering each case, the agencies 

responsible for the review—the Department of Justice, Department of Defense, 

Department of State, Department of Homeland Security, Office of the Director of 

National Intelligence, and Joint Chiefs of Staff—have unanimously agreed on the proper 

disposition of all 240 detainees subject to the review. While there remain other steps 

outside the scope of the review that must be taken before the detention facilities at 

Guantanamo can be closed, the completion of the review fulfills a central element of the 

President’s order. 

This report describes the process by which the review was conducted over the 

past year, the decisions resulting from the review, and the progress made toward 

implementing those decisions. 

II. Background 

Following the terrorist attacks of September 11, 2001, the United States was faced 

with the question of what to do with individuals captured in connection with military 

operations in Afghanistan or in other counterterrorism operations overseas. Starting in 

January 2002, the military began transferring a number of these individuals to the 

detention facilities at Guantanamo. By the end of 2002, 632 detainees had been brought 

to Guantanamo. In 2003, 117 additional detainees were brought to the base, with 10 

more detainees added in 2004, 14 detainees in 2006, five detainees in 2007, and one 

detainee in 2008. Since 2002, a total of 779 individuals have been detained at 

Guantanamo in connection with the war against al-Qaida, the Taliban, and associated 

forces. 

From 2002 through 2008, most of the individuals detained at Guantanamo were 

transferred or released from U.S. custody, with the vast majority being repatriated to their 

home countries and others resettled in third countries willing to receive them. Of the 779 

individuals detained at Guantanamo, approximately 530—almost 70 percent—were 

transferred or released from U.S. custody prior to 2009. The countries to which these 

detainees were transferred include Afghanistan, Albania, Algeria, Australia, Bahrain, 

Bangladesh, Belgium, Bosnia, Denmark, Egypt, France, Germany, Iran, Iraq, Jordan, 

Kazakhstan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Qatar, Russia, 

Saudi Arabia, Somalia (Somaliland), Spain, Sudan, Sweden, Tajikistan, Tunisia, Turkey, 

Uganda, the United Arab Emirates, the United Kingdom, and Yemen. 
 

 

By January 20, 2009, the population of detainees at Guantanamo had been 

reduced to 242. Of the 242 remaining detainees, 59 had been approved for transfer by the 

prior administration and were awaiting implementation of their transfers. 

III. The President’s Executive Order 

On January 22, 2009, the President issued an Executive Order requiring the 

closure of the detention facilities at Guantanamo within one year. Noting the length of 

the detentions and the significant concerns they had raised both within the United States 

and internationally, the President determined that the “prompt and appropriate disposition 

of the individuals currently detained at Guantanamo 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.” 

Accordingly, the President ordered the Executive Branch to conduct a prompt and 

comprehensive interagency review of the factual and legal bases for the continued 

detention of all individuals remaining at Guantanamo. The President ordered that the 

review be coordinated by the Attorney General and conducted with the full cooperation 

and participation of the Secretary of Defense, Secretary of State, Secretary of Homeland 

Security, Director of National Intelligence, and Chairman of the Joint Chiefs of Staff. 

The first task given to the review participants under the Executive Order was to 

assemble, to the extent reasonably practicable, all information in the possession of the 

federal government pertaining to any individual then detained at Guantanamo and 

relevant to determining his proper disposition. 

The Executive Order then set forth the following framework for the review 

participants to follow in determining the disposition of each detainee: 

•	 First, on a rolling basis and as promptly as possible, determine whether it is 

possible to transfer or release the detainee 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 the detainee’s transfer or release; 

•	 Second, with respect to any detainee not approved for transfer or release, 

determine whether the federal government should seek to prosecute the 

detainee for any offenses he may have committed, including whether it is 

feasible to prosecute such individual in a court established pursuant to Article 

III of the United States Constitution (i.e., federal court); and 

•	 Third, with respect to any detainee whose disposition is not achieved through 

transfer, release, or prosecution, select other lawful means, consistent with the 

national security and foreign policy interests of the United States and the 

interests of justice, for the disposition of the detainee. 

2
 
 

 

The Executive Order further directed that the Secretary of Defense, the Secretary 

of State, and other review participants work to effect promptly the release or transfer of 

all individuals for whom release or transfer is possible, and that the Secretary of State 

expeditiously pursue and direct such negotiations and diplomatic efforts with foreign 

governments as are necessary and appropriate to implement the order. 

Finally, the Executive Order required that any individuals who remained in 

detention at Guantanamo at the time of the closure of the detention facilities 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. 

IV. Implementing the Executive Order: The Guantanamo Review Task Force 

A. Establishment of the Task Force 

To implement the Executive Order, the Attorney General established the 

Guantanamo Review Task Force and appointed an Executive Director of the Task Force 

on February 20, 2009. The Task Force was charged with assembling and reviewing 

relevant information on the Guantanamo detainees and making recommendations to 

senior-level officials on the proper disposition of each detainee pursuant to the 

framework set forth in the Executive Order. To ensure that the expertise and perspectives 

of each participating agency were brought to bear on the review process, the Task Force 

was established as an interagency entity. Further, to maximize collaboration and 

exchange of information among Task Force members, all Task Force staff were located 

together in a secure facility, on a single floor devoted to Task Force work, and connected 

electronically through a stand-alone classified network. 

B. Task Force Structure 

With the assistance of the participating agencies, the Task Force assembled a staff 

of over 60 career professionals, drawn from the Department of Justice, Department of 

Defense, Department of State, Department of Homeland Security, Federal Bureau of 

Investigation , Central Intelligence Agency, and National Counterterrorism Center. 

Included in this wide range of representatives were senior military officers, federal 

prosecutors, FBI agents, intelligence analysts and officers, military prosecutors and 

investigators, national security lawyers, civil litigators, paralegals, and administrative 

assistants. During their tenure at the Task Force, these staff members worked full-time 

on the Task Force review. 

The Task Force staff was initially organized into two review teams. The transfer 

team was responsible for evaluating whether detainees could be transferred or released 

consistent with the national security and foreign policy interests of the United States.1 

1 The term “release” is used to mean release from confinement without the need for continuing 

security measures in the receiving country, while the term “transfer” is used to mean release from 

confinement subject to appropriate security measures. 

3
 
 

 

 

 

The team primarily evaluated the degree of threat posed by the detainee to U.S. national 

security, whether the threat could be mitigated through appropriate security measures, 

and the potential destination countries where it appeared possible to safely transfer the 

detainee. The transfer team was composed of representatives from each agency listed in 

the Executive Order. 

The prosecution team was responsible for recommending whether the government 

should seek to prosecute certain detainees in either federal court or the military 

commission system. The prosecution team was staffed predominantly by experienced 

federal prosecutors, investigative agents, and criminal appellate specialists from the 

Department of Justice,2

 as well as military commission prosecutors and investigative 

agents from the Department of Defense. 

The work of the transfer and prosecution teams often overlapped, and the two 

teams worked in close coordination over the course of the review. As described below, 

after an initial review of all the detainees, the transfer and prosecution teams merged to 

conduct a further review of detainees whose cases had been deferred during the initial 

review. 

The interagency makeup of the review teams was designed to ensure that all 

relevant agency viewpoints—including military, intelligence, homeland security, 

diplomatic, and law enforcement—were considered in the review process. Thus, 

proposed recommendations for transfer or continued detention were drafted, reviewed, 

and vigorously discussed in group deliberations by representatives of each of the 

participating agencies. After these extensive discussions on each detainee, any dissenting 

views of the agency representatives were noted in the recommendations or otherwise 

made known to the Review Panel. 

C. Guantanamo Review Panel 

The Task Force’s recommendations, which contained detailed classified 

assessments of each detainee, were submitted on a rolling basis to the interagency 

Guantanamo Review Panel. The Review Panel was established in February 2009 along 

with the Task Force and was composed of senior-level officials from each of the agencies 

identified in the Executive Order.3

 Review Panel members were delegated authority 

from their respective agency heads (“Principals”) to decide the disposition of each 

detainee. Review Panel members were also responsible for ensuring that their respective 

agencies made relevant information in their possession available to the Task Force and 

2 Specifically, federal prosecutors on the Task Force were drawn from United States Attorneys’ 

Offices in the Southern District of New York, Eastern District of New York, Western District of New 

York, District of Columbia, Eastern District of Virginia, Central District of California, Northern District of 

California, and District of Maine, and from the Counterterrorism Section of the National Security Division 

in the Department of Justice. 

3 Senior officials from the Central Intelligence Agency and Federal Bureau of Investigation also 

regularly attended the Review Panel meetings to further inform the decision-making process. 

4
 
provided the Task Force with personnel and other resources necessary for the Task Force 

to complete its review within the one-year time frame mandated by the President. 

Beginning in March 2009, the Review Panel met on a weekly basis to consider 

the recommendations of the Task Force. The Review Panel made disposition decisions 

only by unanimous agreement of the agencies identified in the Executive Order. Thus, 

each of the participating agencies had an equal voice in disposition decisions, and no 

decisions were made by the Review Panel over the objection of any agency. In the large 

majority of cases, the Review Panel was able to achieve consensus and reach decisions 

regarding the detainees considered. When Review Panel members did not reach 

consensus, or when higher-level review was appropriate, the cases were referred to the 

Principals for a decision. All of the cases referred to the Principals also ultimately 

garnered the unanimous agreement of the participating agencies. 

Once a final decision was made regarding the disposition of a particular detainee, 

the decision was passed to the appropriate agencies for implementation. If a detainee was 

approved for transfer to a foreign country as a result of the review, the Department of 

State and Department of Defense worked together to make appropriate arrangements to 

effect the transfer in a manner consistent with the national security and foreign policy 

interests of the United States, including U.S. policies concerning humane treatment. If a 

decision was made by the Review Panel for prosecution, the case was referred to the 

Department of Justice for further investigation and review under a joint protocol 

established by the Department of Justice and Department of Defense to determine 

whether to pursue prosecution of the case in federal court or a military commission. The 

Review Panel was regularly updated on the implementation of transfer decisions and 

prosecution referrals, as well as any issues arising out of the implementation of these 

decisions requiring further interagency consideration. 

D. Task Force Information Collection 

In accordance with the Executive Order, the Task Force’s initial responsibility 

was to collect all government information, to the extent reasonably practicable, relevant 

to determining the proper disposition of each detainee. The government did not have a 

preexisting, consolidated repository of such information. Rather, each federal agency 

stored information concerning Guantanamo detainees in its own systems, consistent with 

its particular mission and operating protocols. 

Accordingly, soon after it was formed, the Task Force initiated an effort to collect 

detainee information and make it available for review by Task Force members. As a 

result of this complex effort, the Task Force consolidated a large volume of information 

from the Department of Defense, Central Intelligence Agency, Federal Bureau of 

Investigation, Department of Justice, National Security Agency, National 

Counterterrorism Center, Department of State, and Department of Homeland Security. 

The documents assembled by the Task Force include summaries of biographic 

and capture information; interrogation reports from custodial interviews of the detainees; 

5
 
 

 

records of Department of Defense administrative proceedings involving the detainees, 

i.e., Combatant Status Review Tribunals and Administrative Review Board proceedings; 

the results of name traces run for detainees in certain intelligence databases maintained 

by the Central Intelligence Agency and National Security Agency; the results of name 

traces run for detainees in law enforcement databases maintained by the Federal Bureau 

of Investigation; investigative records maintained by the Office of Military 

Commissions–Prosecution (“OMC”) and Criminal Investigative Task Force within the 

Department of Defense; records assembled by the Department of Justice for purposes of 

defending habeas litigation brought by detainees to challenge their detention; recidivism 

assessments concerning former detainees; finished intelligence products on the detainee 

population and on general topics of interest to the Task Force’s work; and information 

concerning potential destination countries for detainees approved for transfer or release. 

The Task Force also accepted written submissions made on behalf of individual detainees 

by their counsel or other representatives. 

Additionally, the Task Force had access to a variety of external networks 

containing additional information on the detainees, including documentary and physical 

evidence recovered through counterterrorism operations, and records concerning the 

behavior, disciplinary infractions, and physical and mental health of the detainees during 

detention. Over the course of the review, the Task Force also received briefings from the 

intelligence community on a number of topics relevant to the review. 

The review of all this information was conducted in a classified environment 

using secure systems. 

E. Review Phases 

Following an initial period to stand up the Task Force and collect detainee 

information, the Task Force began to review detainees on March 5, 2009. The review 

was conducted in two phases. During the first phase, the Task Force reviewed all 240 

detainees subject to the review.4

 In accordance with the framework set forth in the 

Executive Order, the purpose of the first phase of the review was to identify those 

detainees who could be transferred or released consistent with the national security and 

foreign policy interests of the United States, those detainees as to whom prosecution 

appeared feasible, and those detainees who required further evaluation before a decision 

could be made on their appropriate disposition. 

The purpose of the second phase of the review was to reevaluate those detainees 

who had been deferred during the first phase. Each detainee reviewed in the second 

phase was considered for transfer, prosecution, or—in the event that neither of these 

dispositions was deemed appropriate—continued detention pursuant to the government’s 

4 Although there were 242 detainees at Guantanamo when the Executive Order was issued, one 

detainee had already been convicted and sentenced to life in the military commission system in 2008, and 

another detainee committed suicide in June 2009. Thus, there were 240 detainees whose dispositions were 

reviewed under the Executive Order. 

6
 
 

 

authority under the Authorization for Use of Military Force (“AUMF”) passed by 

Congress in response to the attacks of September 11, 2001. 

V. Detainee Review Guidelines 

In conducting its reviews, the Task Force followed detainee review guidelines 

(“Guidelines”) developed specifically for the Executive Order review and approved by 

the Review Panel. The Guidelines set forth standards to apply in considering detainees 

for transfer, prosecution, or continued detention pursuant to the government’s authority 

under the AUMF. 

A. Transfer Guidelines 

The Guidelines addressed three types of evaluations relevant to determining 

whether a detainee should be recommended for transfer or release. 

The first evaluation required by the Guidelines was a threat evaluation. The 

Guidelines provided that a detainee should be deemed eligible for transfer if any threat he 

poses could be sufficiently mitigated through feasible and appropriate security measures.5 

The Guidelines set forth a non-exclusive list of factors to be considered in evaluating the 

threat posed by a detainee. In applying those factors, the Task Force was instructed to 

consider the totality of available information regarding the detainee, and to give careful 

consideration to the credibility and reliability of the available information. 

The second evaluation required by the Guidelines was an evaluation of potential 

destination (i.e., receiving) countries. The Guidelines left the Task Force with discretion 

whether to recommend a detainee for transfer only to specified countries or under 

specified conditions. As with the threat evaluation, the Guidelines provided a nonexclusive set of factors by which to evaluate potential receiving countries. 

The third evaluation required by the Guidelines was a legal evaluation to ensure 

that any detainee falling outside the government’s lawful detention authority under the 

AUMF was recommended for transfer or release. 

B. Prosecution Guidelines 

The Guidelines also required cases to be evaluated by Task Force prosecutors to 

determine whether a federal court or military commission prosecution should be 

recommended for any offenses the detainees may have committed. 

For the evaluation of whether a detainee should be prosecuted in federal court, the 

Guidelines set forth standards used by federal prosecutors across the country to determine 

5 The Guidelines further provided that a detainee should be deemed eligible for release if he does 

not pose an identifiable threat to the national security of the United States. Other than the 17 Chinese 

Uighur detainees, who were approved for “transfer or release,” no detainees were approved for “release” 

during the course of the review. 

7
 
 

 

 

 

 

 

whether to charge a case, as set forth in the United States Attorneys’ Manual. Consistent 

with these standards, the Guidelines provided that a case should be recommended for 

prosecution if the detainee’s conduct constitutes a federal offense and the potentially 

available admissible evidence will probably be sufficient to obtain and sustain a 

conviction—unless prosecution should be declined because no substantial federal interest 

would be served by prosecution. Key factors in making this determination include the 

nature and seriousness of the offense; the detainee’s culpability in connection with the 

offense; the detainee’s willingness to cooperate in the investigation or prosecution of 

others; and the probable sentence or other consequences if the detainee is convicted. 

For the evaluation of whether a detainee should be prosecuted in a military 

commission, Task Force prosecutors examined the potentially available admissible 

evidence and consulted closely with OMC to determine the feasibility of prosecution. 

Recognizing the unique nature of these cases, the Guidelines provided that other 

factors were also significant in determining whether to recommend prosecution, 

including the need to protect classified information, such as intelligence sources and 

methods. 

C. Detention Guidelines 

In accordance with the Executive Order, the Guidelines provided that every effort 

should be made to ensure that all detainees who could be recommended for transfer, 

release, or prosecution consistent with national security and foreign policy interests and 

the interests of justice were recommended for such dispositions. Thus, the Guidelines 

provided that a detainee should be considered eligible for continued detention under the 

AUMF only if (1) the detainee poses a national security threat that cannot be sufficiently 

mitigated through feasible and appropriate security measures; (2) prosecution of the 

detainee by the federal government is not feasible in any forum; and (3) continued 

detention without criminal charges is lawful. 

The Guidelines required the Task Force to consult with the Department of Justice 

in conducting a legal evaluation for each detainee considered for continued detention. 

This legal evaluation addressed both the legal basis for holding the detainee under the 

AUMF and the government’s case for defending the detention in any habeas litigation.6 

As the Supreme Court has held, inherent within the authorization of the AUMF to 

“use all necessary and appropriate force” is the power to detain any individuals who fall 

within the scope of the statute.7 As the Court observed, “by universal agreement and 

6 The AUMF authorizes the President to “use all necessary and appropriate force against those 

nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist 

attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent 

any future attacks of international terrorism against the United States by such nations, organizations or 

persons.” AUMF § 2(a). 

7 See Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality opinion); id. at 587 (Thomas, J.) 

(dissenting). 

8
 
 

 

practice,” the power to wage war necessarily includes the authority to capture and detain 

combatants in order to prevent them from “returning to the field of battle and taking up 

arms once again.”8

 The scope of the AUMF’s detention authority extends to those 

persons who “planned, authorized or committed or aided” the September 11 attacks, 

“harbored those responsible for those attacks,” or “were part of, or substantially 

supported, Taliban or al Qaeda forces or associated forces that are engaged in hostilities 

against the United States or its coalition partners.”9 Accordingly, only detainees who 

satisfied this standard could be designated for continued detention. 

D. Review of Information 

Consistent with the Guidelines’ requirement that the Task Force undertake a fresh 

and comprehensive evaluation of detainee information, the Task Force sought to make 

independent evaluations of the facts. In many instances, the Task Force largely agreed 

with prior threat assessments of the detainees and sometimes found additional 

information that further substantiated such assessments. In other instances, the Task 

Force found prior assessments to be overstated. Some assessments, for example, 

contained allegations that were not supported by the underlying source document upon 

which they relied. Other assessments contained conclusions that were stated 

categorically even though derived from uncorroborated statements or raw intelligence 

reporting of undetermined or questionable reliability. Conversely, in a few cases, the 

Task Force discovered reliable information indicating that a detainee posed a greater 

threat in some respects than prior assessments suggested. 

Even after careful examination of the intelligence, however, it was not always 

possible to draw definitive conclusions regarding a detainee’s past conduct. Many of the 

detainees were captured in active zones of combat and were not previously the targets of 

investigation by U.S. law enforcement authorities or the intelligence community. Much 

of what is known about such detainees comes from their own statements or statements 

made by other detainees during custodial debriefings. The Task Force sought to ensure 

that the Review Panel and Principals were apprised in their decision-making of any 

limitations of the available information. 

VI. Results of the Review 

A. Overview of Decisions 

By the one-year mark of January 22, 2010, the review participants reached 

decisions on the appropriate disposition of all 240 detainees subject to the Executive 

Order. In sum, 126 detainees were approved for transfer; 36 detainees were referred for 

8 Id. at 518; see also id. at 587 (Thomas, J.) (dissenting) (same). 

9 See Gov’t Filing, In re: Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (D.D.C. March 

13, 2009). The United States Court of Appeals for the District of Columbia recently affirmed that 

Guantanamo detainees who meet this standard are detainable. See also Al-Bihani v. Obama, --- F.3d ---, 

2010 WL 10411 at *3 (D.C. Cir. Jan. 5, 2010). 

9
 
 

   

36

30

48

Overview of Decisions

Transfer

Prosecution

126 Conditional Detention

Detention

prosecution;10 48 detainees were approved for continued detention under the AUMF; and 

30 detainees from Yemen were approved for “conditional” detention based on present 

security conditions in Yemen. 

After careful deliberation, all of these decisions were reached by unanimous 

agreement of senior officials from each agency responsible for the review. Thus, each 

decision carries the approval of the Department of Justice, Department of Defense, 

Department of State, Department of Homeland Security, Office of the Director of 

National Intelligence, and Joint Chiefs of Staff. A more detailed breakdown of the 

decisions follows. 

Detainees Approved for Transfer 

•	 126 detainees were unanimously approved for transfer subject to appropriate security 

measures. 

o	 63 of the 126 detainees either had been cleared for transfer by the prior 

administration, ordered released by a federal district court, or both. 

o	 44 of the 126 detainees have been transferred to date—24 to their home 

countries, 18 to third countries for resettlement, and two to Italy for 

prosecution. 

o	 82 of the 126 detainees remain at Guantanamo. Of these detainees: 

 16 may be repatriated to their home countries (other than Yemen) 

consistent with U.S. policies on humane treatment. The State 

Department and Department of Defense are working with these 

countries concerning the security conditions and timing of the 

10 As explained below, 44 cases were initially referred for prosecution; 36 of those cases remain 

the subject of active referrals. 

10
 
transfers. Some of these detainees have obtained injunctions that 

presently bar their repatriation and cannot be repatriated until these 

injunctions are lifted; litigation over the injunctions is ongoing. 

 37 cannot be repatriated at this time due to humane treatment or 

related concerns associated with their home countries (other than 

Yemen). The State Department is seeking to resettle these detainees in 

third countries. (A small number of these detainees may be transferred 

to third countries for prosecution rather than resettlement.) 

 29 are from Yemen. In light of the moratorium on transfers of 

Guantanamo detainees to Yemen announced by the President on 

January 5, 2010, these detainees cannot be transferred to Yemen at this 

time. In the meantime, these detainees are eligible to be transferred to 

third countries capable of imposing appropriate security measures. 

     

         

       

16 37

29

Detainees Approved for Transfer

Transferred 44

Repatriation Consistent with Humane Treatment Policy

Repatriation Raises Humane Treatment Concerns

Yemeni Detainees

Detainees Referred for Prosecution 

•	 Initially, 44 detainees were referred for prosecution. As a result of further evaluation 

of these cases (detailed below), there are now 36 detainees who remain the subject of 

active cases or investigations. 

o	 1 detainee (Ahmed Ghailani) has been transferred to the Southern District of 

New York and will be tried for his alleged role in the 1998 bombings of the 

U.S. embassies in Kenya and Tanzania. 

o	 5 detainees will be tried in the Southern District of New York, for their 

alleged roles in the September 11 attacks, as announced by the Attorney 

General. 

o	 6 detainees will be tried for offenses under the laws of war in a reformed 

military commission system, as announced by the Attorney General. 

o	 24 detainees remain under review pursuant to the joint Department of JusticeDepartment of Defense protocol. No final determination has yet been made as 

to whether or in what forum these 24 detainees will be charged. 

11
 
 

o	 8 other detainees were initially referred for prosecution but subsequently 

designated for other dispositions. 

 1 detainee was transferred pursuant to a court order in his habeas case. 

 7 detainees were referred back to the review participants after 

prosecution was deemed not feasible upon further evaluation (6 were 

subsequently approved for continued detention under the AUMF, and 

1 was approved for transfer). 

     

         

         

     

6

24

Detainees Referred for Prosecution

6 8

To be tried in federal court

To be tried by military commission

Under review

Redesignated for other dispositions

Detainees Approved for Detention 

•	 48 detainees were unanimously approved for continued detention under the AUMF 

based on a finding that they pose a national security threat that could not be mitigated 

sufficiently at this time if they were to be transferred from U.S. custody. 

o	 The Task Force concluded as to all of these detainees that prosecution is not 

feasible at this time in either federal court or the military commission system. 

o	 At the same time, the Task Force concluded that there is a lawful basis for 

continuing to detain these detainees under the AUMF. 

Detainees Approved for Conditional Detention 

•	 30 detainees from Yemen were unanimously approved for “conditional” detention 

based on current security conditions in Yemen. 

o	 After carefully considering the intelligence concerning the security situation 

in Yemen, and reviewing each detainee on a case-by-case basis, the review 

participants selected a group of 30 Yemeni detainees who pose a lower threat 

than the 48 detainees designated for continued detention under the AUMF, but 

who should not be among the first groups of transfers to Yemen even if the 

current moratorium on such transfers is lifted. 

o	 These 30 detainees were approved for “conditional” detention, meaning that 

they may be transferred if one of the following conditions is satisfied: (1) the 

12
 
 

 

security situation improves in Yemen; (2) an appropriate rehabilitation 

program becomes available; or (3) an appropriate third-country resettlement 

option becomes available. Should any of these conditions be satisfied, 

however, the 29 Yemeni detainees approved for transfer would receive 

priority for any transfer options over the 30 Yemeni detainees approved for 

conditional detention. 

B. Overview of the Guantanamo Detainee Population 

The following section provides an overview of the 240 Guantanamo detainees 

reviewed under the Executive Order, including their threat characteristics and more 

general background information, including country of origin, point of capture, and date of 

arrival at Guantanamo. 

Threat Characteristics. As reflected in the decisions made in the review, there is 

a substantial degree of variation among the Guantanamo detainees from a security 

perspective. Although not all detainees can be neatly characterized, the following 

groupings provide a rough overview of the recurring threat profiles seen in the 

population. 

•	 Leaders, operatives, and facilitators involved in terrorist plots against U.S. targets. 

At the high end of the threat spectrum are leaders, planners, operatives, and 

facilitators within al-Qaida or associated groups who are directly implicated in 

terrorist plots against U.S. interests. Among the most notorious examples in this 

group are Khalid Sheikh Mohammed, the alleged mastermind of the September 11 

attacks; Ramzi bin al-Shibh, the alleged principal coordinator of the September 11 

attacks; Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the U.S.S. 

Cole; Abu Faraj al-Libi, who allegedly succeeded Khalid Sheikh Mohammed as alQaida’s chief planner of terrorist operations; Hambali, the alleged leader of an alQaida affiliate in Indonesia who directed numerous attacks against Western targets in 

Southeast Asia; and Ahmed Ghailani, an alleged key participant in the 1998 

bombings of the U.S. embassies in Kenya and Tanzania. Roughly 10 percent of the 

detainees subject to the review appear to have played a direct role in plotting, 

executing, or facilitating such attacks. 

•	 Others with significant organizational roles within al-Qaida or associated terrorist 

organizations. Other detainees played significant organizational roles within alQaida or associated terrorist organizations, even if they may not have been directly 

involved in terrorist plots against U.S. targets. This group includes, for example, 

individuals responsible for overseeing or providing logistical support to al-Qaida’s 

training operations in Afghanistan; facilitators who helped move money and 

personnel for al-Qaida; a cadre of Usama bin Laden’s bodyguards, who held a unique 

position of trust within al-Qaida; and well-trained operatives who were being 

groomed by al-Qaida leaders for future terrorist operations. Roughly 20 percent of 

the detainees subject to the review fall within this category. 

13
 
14

• Taliban leaders and members of anti-Coalition militia groups. The detainee 

population also includes a small number of Afghan detainees who occupied 

significant positions within the Taliban regime, and a small number of other Afghan 

detainees who were involved in local insurgent networks in Afghanistan implicated in 

attacks on Coalition forces. Less than 10 percent of the detainees subject to the 

review fall within this category. 

• Low-level foreign fighters. A majority of the detainees reviewed appear to have been 

foreign fighters with varying degrees of connection to al-Qaida, the Taliban, or 

associated groups, but who lacked a significant leadership or other specialized role. 

These detainees were typically captured in combat zones during the early stages of 

U.S. military operations in Afghanistan, often by Northern Alliance troops or other 

allied forces, without being specifically targeted for capture by (or even known to) the 

U.S. military in advance. Many were relatively recent recruits to training camps in 

Afghanistan run by al-Qaida or other groups, where they received limited weapons 

training, but do not appear to have been among those selected for more advanced 

training geared toward terrorist operations abroad. 

• Miscellaneous others. The remaining detainees—roughly 5 percent—do not fit into 

any of the above categories. 

Country of Origin. The Guantanamo detainees reviewed included individuals 

from a number of different countries, including Yemen, Afghanistan, China, Saudi 

Arabia, Algeria, Tunisia, Syria, Libya, Kuwait, and Pakistan. Approximately 40 

percent—97 detainees—were Yemeni, while over 10 percent were Afghan. 

0 20 40 60 80 100 120

Others

Sudan

Somalia

Egypt

Uzbekistan

Pakistan

Kuwait

Libya

Syria

Tunisia

Algeria

S. Arabia

China

Afghan.

Yemen
15

Point of Capture. The large majority of the detainees in the population 

reviewed—approximately 60 percent—were captured inside Afghanistan or in the 

Afghanistan-Pakistan border area. Approximately 30 percent of the detainees were 

captured inside Pakistan. The remaining 10 percent were captured in countries other than 

Afghanistan or Pakistan. 

Arrival at Guantanamo. Most of the 

detainees reviewed—approximately 80 

percent—arrived at Guantanamo in 2002, 

having been captured during the early 

months of operations in Afghanistan. The 

remaining detainees arrived in small 

numbers over succeeding years. 

VII. Transfer Decisions 

A. Background 

As the first step in the review process, the Executive Order required the review 

participants to determine which Guantanamo detainees could be transferred or released 

consistent with the national security and foreign policy interests of the United States. 

The Executive Order further required the Secretary of Defense, the Secretary of State, 

and other review participants as appropriate, to “work to effect promptly the release or 

transfer of all individuals for whom release or transfer is possible.” 

Prior to the initiation of the review, 59 of the 240 detainees subject to review were 

approved for transfer or release by the prior administration but remained at Guantanamo 

by the time the Executive Order was issued. One reason for their continued detention 

was that more than half of the 59 detainees could not be returned to their home countries 

consistent with U.S. policy due to post-transfer treatment concerns.11 Thus, many of the 

59 detainees required resettlement in a third country, a process that takes time and 

requires extensive diplomatic efforts. 

In addition, 29 of the detainees subject to review were ordered released by a 

federal district court as the result of habeas litigation. Of these 29 detainees, 18 were 

 11 It is the longstanding policy of the United States not to transfer a person to a country if the 

United States determines that the person is more likely than not to be tortured upon return or, in appropriate 

cases, that the person has a well-founded fear of persecution and is entitled to persecution protection. This 

policy is consistent with the approach taken by the United States in implementing the Convention Against 

Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Protocol Relating 

to the Status of Refugees. Accordingly, prior to any transfer, the Department of State works closely with 

relevant agencies to advise on the likelihood of persecution or torture in the given country and the adequacy 

and credibility of assurances obtained from the foreign government. 

0 50 100 150 200 250

2008

2007

2006

2005

2004

2003

2002
 

 

 

 

 

ordered released after the government conceded the case.12 The remaining 11 detainees 

were ordered released after a court reached the merits of the case and ruled, based on a 

preponderance of the evidence, that the detainee was not lawfully held because he was 

not part of, or did not substantially support, al-Qaida, the Taliban, or associated forces.13 

Of the 29 detainees ordered released, 18 were among the 59 who had been approved by 

the prior administration for transfer or release. Thus, a total of 70 detainees subject to the 

review were either approved for transfer during the prior administration or ordered 

released by a federal court. 

B. Decisions 

Based on interagency reviews and case-by-case threat evaluations, 126 of the 240 

detainees were approved for transfer by agreement of senior officials from the agencies 

named in the Executive Order. 

The 126 detainees unanimously approved for transfer include 44 who have been 

transferred to date—24 to their home countries,14 18 to third countries for resettlement,15 

and two to Italy for prosecution. Of the 82 detainees who remain at Guantanamo and 

who have been approved for transfer, 16 may be repatriated to their home countries 

(other than Yemen) consistent with U.S. policies concerning humane treatment, 38 

cannot be repatriated due to humane treatment or related concerns in their home countries 

(other than Yemen) and thus need to be resettled in a third country, and 29 are from 

Yemen. Half of all detainees approved for transfer—63 of the 126—also had been 

approved for transfer during the prior administration, ordered released by a federal court, 

or both.16 

There were considerable variations among the detainees approved for transfer. 

For a small handful of these detainees, there was scant evidence of any involvement with 

terrorist groups or hostilities against Coalition forces in Afghanistan. However, for most 

of the detainees approved for transfer, there were varying degrees of evidence indicating 

that they were low-level foreign fighters affiliated with al-Qaida or other groups 

operating in Afghanistan. Thousands of such individuals are believed to have passed 

12 Of the 18 cases conceded by the government, 17 were brought by the Uighur detainees and 

were conceded by the prior administration. Eleven of the 18 detainees have been transferred to date. 

13 A total of 14 detainees have won their habeas cases on the merits in district court. The 

government transferred three of these detainees in December 2008; thus, they were not subject to the 

review. Of the 11 remaining detainees who were reviewed under the Executive Order, seven have been 

transferred to date. Of the four who have not been transferred, the United States is appealing the district 

court’s ruling in two of the cases, and is still within the time period to appeal the remaining two cases. 

14 The 24 detainees transferred to their home countries were repatriated to Afghanistan (5), 

Algeria (2), Chad (1), Iraq (1), Kuwait (2), Saudi Arabia (3), Somalia (Somaliland) (2), the United 

Kingdom (1), and Yemen (7). 

15 The 18 detainees transferred to third countries for resettlement were transferred to Belgium (1), 

Bermuda (4), France (2), Hungary (1), Ireland (2), Portugal (2), and Palau (6). 

16 The review participants reviewed the detainees who had been approved for transfer by the prior 

Administration and designated seven such detainees (all of whom were from Yemen) for conditional 

detention instead of transfer. 

16
 
through Afghanistan from the mid-1990s through 2001, recruited through networks in 

various countries in the Middle East, North Africa, and Europe. These individuals varied 

in their motivations, but they typically sought to obtain military training at one of the 

many camps operating in Afghanistan; many subsequently headed to the front lines to 

assist the Taliban in their fight against the Northern Alliance. For the most part, these 

individuals were uneducated and unskilled. At the camps, they typically received limited 

weapons training. While al-Qaida used its camps to vet individuals for more advanced 

training geared toward terrorist operations against civilian targets, only a small 

percentage of camp attendees were deemed suitable for such operations. The low-level 

fighters approved for transfer were typically assessed by the review participants not to 

have been selected for such training. Many were relatively recent recruits to the camps, 

arriving in Afghanistan in the summer of 2001. After the camps closed in anticipation of 

the arrival of U.S. forces in October 2001, some of these individuals were transported by 

camp personnel or otherwise made their way to the Tora Bora mountain range, where 

they joined fighting units, but subsequently dispersed in the face of U.S. air attacks. 

It is important to emphasize that a decision to approve a detainee for transfer does 

not reflect a decision that the detainee poses no threat or no risk of recidivism. Rather, 

the decision reflects the best predictive judgment of senior government officials, based on 

the available information, that any threat posed by the detainee can be sufficiently 

mitigated through feasible and appropriate security measures in the receiving country. 

Indeed, all transfer decisions were made subject to the implementation of appropriate 

security measures in the receiving country, and extensive discussions are conducted with 

the receiving country about such security measures before any transfer is implemented. 

Some detainees were approved for transfer only to specific countries or under specific 

conditions, and a few were approved for transfer only to countries with pending 

prosecutions against the detainee (or an interest in pursuing a future prosecution). Each 

decision was made on a case-by-case basis, taking into account all of the information 

about the detainee and the receiving country’s ability to mitigate any threat posed by the 

detainee. For certain detainees, the review participants considered the availability of 

rehabilitation programs and mental health treatment in the receiving country. The review 

participants also were kept informed of intelligence assessments concerning recidivism 

trends among former detainees. 

It is also important to emphasize that a decision to approve a detainee for transfer 

does not equate to a judgment that the government lacked legal authority to hold the 

detainee. To be sure, in some cases the review participants had concerns about the 

strength of the evidence against a detainee and the government’s ability to defend his 

detention in court, and considered those factors, among others, in deciding whether to 

approve the detainee for transfer. For many of the detainees approved for transfer, 

however, the review participants found there to be reliable evidence that the detainee had 

engaged in conduct providing a lawful basis for his detention. The review participants 

nonetheless considered these detainees appropriate candidates for transfer from a threat 

perspective, in light of their limited skills, minor organizational roles, or other factors. 

17
 
 

 

C. Yemeni Detainees 

From the outset of the review, it was clear that the Yemeni detainees posed a 

unique challenge: there were 97 Yemenis subject to the review, by far the largest group 

in the Guantanamo population, and the security situation in Yemen had deteriorated. AlQaida was gaining strongholds in certain regions of the country, and the government of 

Yemen was facing a rebellion in other regions. Potential options for rehabilitation 

programs and other security measures were carefully considered throughout the course of 

the review, but conditions in Yemen remained a primary concern. 

Taking into account the current intelligence regarding conditions in Yemen, and 

the individual backgrounds of each detainee, the review participants unanimously 

approved 36 of the 97 Yemeni detainees for transfer subject to appropriate security 

measures. The decision to approve these detainees for transfer, however, did not require 

immediate implementation. Rather, by making each transfer decision contingent on the 

implementation of appropriate security measures, the review participants allowed for 

necessary flexibility in the timing of these transfers. Under these transfer decisions, 

detainees would be returned to Yemen only at a time, and only under conditions, deemed 

appropriate from a security perspective. 

To date, only seven of the 36 Yemeni detainees approved for transfer have been 

transferred to Yemen.17 One was transferred in September 2009 pursuant to a court 

order, and six were transferred in December 2009. The six who were repatriated in 

December 2009 were selected by the unanimous agreement of high-level officials in the 

agencies named in the Executive Order, after further individualized reviews of the 

detainees, including consideration of threat-related information, the evidence against the 

detainees, and the government’s ability to successfully defend the lawfulness of their 

detentions in court. This decision involved high-level coordination within the 

government and reflected a determination that these six specific detainees should be 

returned to Yemen at that time. 

There are 29 Yemenis approved for transfer who remain at Guantanamo. The 

involvement of Al-Qaida in the Arabian Peninsula—the branch of al-Qaida based in 

Yemen—in the recent attempted bombing of an airplane headed to Detroit underscored 

the continued need for a deliberate approach toward any further effort to repatriate 

Yemeni detainees. In the wake of the attempted plot, the President publicly announced a 

moratorium on the transfer of detainees to Yemen. Accordingly, none of the 29 Yemeni 

detainees remaining at Guantanamo who are approved for transfer will be repatriated to 

Yemen until the moratorium is lifted. These detainees may be considered for 

resettlement in third countries subject to appropriate security measures, if such options 

become available. 

17 During the last administration, 14 detainees were returned to Yemen, and an additional 15 

Yemeni detainees were among the 59 approved for (but still awaiting) transfer as of January 20, 2009. 

18
 
 

 

VIII. Prosecution Decisions 

A. Background 

The Executive Order provides that “[i]n accordance with United States law, the 

cases of individuals detained at Guantanamo 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 [i.e., federal court].” In a speech at the National Archives 

on May 21, 2009, the President reiterated that “when feasible, we will try those who have 

violated American criminal laws in federal courts.” As the President noted in his speech, 

federal prosecutors have a long history of successfully prosecuting all manner of 

terrorism offenses in the federal courts: 

Our courts and juries of our citizens are tough enough to convict terrorists, 

and the record makes that clear. Ramzi Yousef tried to blow up the World 

Trade Center—he was convicted in our courts, and is serving a life 

sentence in U.S. prison. Zacarias Moussaoui has been identified as the 

20th 9/11 hijacker—he was convicted in our courts, and he too is serving a 

life sentence in prison. If we can try those terrorists in our courts and hold 

them in our prisons, then we can do the same with detainees from 

Guantanamo. 

The President also stressed that military commissions “have a history in the 

United States dating back to George Washington and the Revolutionary War” and 

remained “an appropriate venue for trying detainees for violations of the laws of war.” 

Accordingly, the administration proposed, and Congress has since enacted, reforms to the 

military commissions system to ensure that the commissions are fair, legitimate, and 

effective. 

In accordance with the President’s guidance, the Task Force evaluated detainees 

for possible prosecution wherever there was any basis to conclude that prosecution in 

either federal court or a military commission was appropriate and potentially feasible. 

The Task Force prosecutors focused their review at first on the 23 detainees who, as of 

the issuance of the Executive Order, were facing charges in the military commissions, as 

well as several other uncharged detainees whose cases were related to those of charged 

detainees.18 The Task Force then evaluated for possible prosecution the approximately 

40 additional detainees whom OMC had designated for potential prosecution. Finally, 

the Task Force reviewed every detainee for prosecution who was deemed ineligible for 

transfer. 

18 As of January 22, 2009, there were 12 detainees whose cases had been referred to a military 

commission, including the defendants in the September 11 prosecution. In compliance with the Executive 

Order, their cases were halted. 

19
 
 

In conducting its reviews, the Task Force worked closely with OMC. Task Force 

members had access to OMC files, and OMC prosecutors briefed the Task Force on their 

cases. Upon request, Department of Defense investigators and FBI agents who had 

worked on investigations met with Task Force members to answer their questions. The 

Task Force also reviewed original source information pertaining to the detainees and was 

able to identify previously unexploited sources of evidence. 

As the Task Force completed its prosecution reviews, it identified those cases that 

appeared feasible for prosecution in federal court, or at least potentially feasible, if 

certain investigative steps were pursued with success. In this regard, the Task Force 

identified a number of avenues for strengthening important cases and developing them 

for prosecution. For example, the Task Force determined that there were more than a 

thousand pieces of potentially relevant physical evidence (including electronic media) 

seized during raids in the aftermath of the September 11 attacks that had not yet been 

systematically catalogued and required further evaluation for forensic testing. There 

were potential cooperating witnesses who could testify against others at trial, and key fact 

witnesses who needed to be interviewed. Finally, certain foreign governments, which 

had been reluctant to cooperate with the military commissions, could be approached to 

determine whether they would provide cooperation in a federal prosecution. Given the 

limited resources of the Task Force to pursue this additional work, the Review Panel 

referred cases that appeared potentially feasible for federal prosecution to the Department 

of Justice for further investigation and prosecutorial review. 

The Department of Justice and Department of Defense agreed upon a joint 

protocol to establish a process for determining whether prosecution of a referred case 

should be pursued in a federal court or before a military commission. Under the 

protocol—titled Determination of Guantanamo Cases Referred for Prosecution—there is 

a presumption that prosecution will be pursued in a federal court wherever feasible, 

unless other compelling factors make it more appropriate to pursue prosecution before a 

military commission. The evaluations called for under the protocol are conducted by 

teams of both federal and military prosecutors. Among the criteria they apply are: the 

nature of the offenses to be charged; the identity of the victims; the location of the crime; 

the context in which the defendant was apprehended; and the manner in which the case 

was investigated and by which investigative agency. The Attorney General, in 

consultation with the Secretary of Defense, makes the ultimate decision as to where a 

prosecution will be pursued. 

B. Decisions 

As a result of the Task Force’s review, the Review Panel referred 44 cases to the 

Department of Justice for potential prosecution and a decision regarding the forum for 

any prosecution.19 Decisions to seek prosecution have been announced in 12 of these 

cases; 24 remain pending under the protocol; and eight of the detainees initially referred 

were subsequently designated for other dispositions. 

19 The review participants did not determine that any additional detainees were potentially 

feasible for prosecution solely before a military commission at this time. 

20
 
 

On May 21, 2009, the Department of Justice announced that Ahmed Ghailani, 

who had previously been indicted in the United States District Court for the Southern 

District of New York for his alleged role in the 1998 bombings of the U.S. embassies in 

Kenya and Tanzania, would be prosecuted in federal court.20 On June 9, 2009, Ghailani 

was transferred from Guantanamo to the Southern District of New York, where his case 

is pending. 

On November 13, 2009, the Attorney General announced that the government 

would pursue prosecution in federal court in the Southern District of New York against 

the five detainees who had previously been charged before a military commission for 

their roles in the September 11 attacks. They are: 

•	 Khalid Sheikh Mohammed, the alleged mastermind of the September 11 plot; 

•	 Ramzi bin al-Shibh, the alleged coordinator of the September 11 plot who acted 

as intermediary between Khalid Sheikh Mohammed and the hijackers in the 

United States; 

•	 Walid Muhammed Salih Mubarak Bin Attash (a.k.a. Khallad Bin Attash), an 

alleged early member of the September 11 plot who tested airline security on 

United Airlines flights between Bangkok and Hong Kong; 

•	 Mustafa Ahmed al-Hawsawi, an alleged facilitator of hijackers and money to the 

United States from his base in Dubai; and 

•	 Ali Abdul Aziz Ali (a.k.a. Ammar Baluchi), a second alleged facilitator of 

hijackers and money to the United States from his base in Dubai. 

On the same day, the Attorney General also announced that the prosecution 

against Abd al-Rahim al-Nashiri, the alleged mastermind of the bombing of the U.S.S. 

Cole, would be pursued before a military commission. The Attorney General further 

decided that four other detainees whose cases were pending before military commissions 

when the Executive Order was issued would remain before the commissions: Ahmed alDarbi, Noor Uthman, Omar Khadr, and Ibrahim al-Qosi. In January 2010, the 

Department of Justice announced that Obaidullah, whom OMC had charged but whose 

case had not yet been referred to a military commission, will remain in the military 

commission system. 

Twenty-four of the referred cases remain pending with the Department of Justice 

under the protocol. No final decision has been made regarding whether or in what forum 

these detainees will be prosecuted. 

20 The decision to pursue prosecution against Ghailani in federal court was made before the joint 

prosecution protocol was in effect. 

21
 
 

 

 

Eight of the referred detainees are no longer under active consideration for 

prosecution. One detainee who had been referred for prosecution was transferred 

pursuant to a court order in his habeas case. Seven additional detainees who had been 

referred for prosecution were ultimately referred back to the Task Force, based on a 

determination that the cases were not feasible for prosecution in either federal court or the 

military commission system at this time. Six of these detainees were subsequently 

approved for continued detention under the AUMF without criminal charges, and one 

was approved for transfer. As a result of these subsequent decisions, there are currently 

36 cases with active prosecution referrals. 

C. Detainees Who Cannot Be Prosecuted 

The Task Force concluded that for many detainees at Guantanamo, prosecution is 

not feasible in either federal court or a military commission. There are several reasons 

for these conclusions. 

First, the vast majority of the detainees were captured in active zones of combat in 

Afghanistan or the Pakistani border regions. The focus at the time of their capture was 

the gathering of intelligence and their removal from the fight. They were not the subjects 

of formal criminal investigations, and evidence was neither gathered nor preserved with 

an eye toward prosecuting them. While the intelligence about them may be accurate and 

reliable, that intelligence, for various reasons, may not be admissible evidence or 

sufficient to satisfy a criminal burden of proof in either a military commission or federal 

court. One common problem is that, for many of the detainees, there are no witnesses 

who are available to testify in any proceeding against them. 

Second, many of the detainees cannot be prosecuted because of jurisdictional 

limitations. In many cases, even though the Task Force found evidence that a detainee 

was lawfully detainable as part of al-Qaida—e.g., based on information that he attended a 

training camp, or played some role in the hierarchy of the organization—the Task Force 

did not find evidence that the detainee participated in a specific terrorist plot. The lack of 

such evidence can pose obstacles to pursuing a prosecution in either federal court or a 

military commission. While the federal material support statutes have been used to 

convict persons who have merely provided services to a terrorist organization, e.g., by 

attending a terrorist training camp, there are potential limitations to pursuing such a 

charge against the detainees.21 

21 Among these limitations: First, the two relevant statutes—18 U.S.C. §§ 2339A and 2339B— 

were not amended to expressly apply extraterritorially to non-U.S. persons until October 2001 and 

December 2004, respectively. Thus, material support may not be available as a charge in the federal 

system unless there is sufficient evidence to prove that a detainee was supporting al-Qaida after October 

2001 at the earliest. Second, the statute of limitations for these offenses is typically eight years (see 18 

U.S.C. § 3286), which may bar prosecution for offenses that occurred well before the detainee’s capture. 

Third, because the statutory maximum sentence for material support is 15 years (where death does not 

result from the offense), sentencing considerations may weigh against pursuing prosecution in certain 

cases. Some of these considerations would not apply to material support charges brought in the military 

commissions; however, the legal viability of material support as a charge in the military commission 

system has been challenged on appeal in commission proceedings. 

22
 
Notably, the principal obstacles to prosecution in the cases deemed infeasible by 

the Task Force typically did not stem from concerns over protecting sensitive sources or 

methods from disclosure, or concerns that the evidence against the detainee was tainted. 

While such concerns were present in some cases, most detainees were deemed infeasible 

for prosecution based on more fundamental evidentiary and jurisdictional limitations tied 

to the demands of a criminal forum, as described above. 

Significantly, the Executive Order does not preclude the government from 

prosecuting at a later date someone who is presently designated for continued detention. 

Work on these cases continues. Further exploitation of the forensic evidence could 

strengthen the prosecution against some detainees. Other detainees may cooperate with 

prosecutors. If either the Department of Justice or the Department of Defense concludes 

in the future that prosecution of a detainee held without charges has become feasible in 

federal court or in a military commission, the detention decisions made in the course of 

this review would permit the prosecution to go forward. 

IX. Detention Decisions 

A. Background 

Under the Executive Order, the review participants were required first to consider 

whether it was possible to transfer, release, or prosecute each detainee. With respect to 

any detainees who were not deemed appropriate for transfer, release, or prosecution, the 

review participants were required to “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.” 

In accordance with this framework, detainees were first reviewed to determine 

whether transfer or release was consistent with the national security and foreign policy 

interests of the United States and whether they could be prosecuted. If those options did 

not appear feasible, the review participants then considered whether the detainee’s 

national security threat justified continued detention under the AUMF without criminal 

charges, and, if so, whether the detainee met the legal requirements for detention. 

B. Decisions 

As the result of this review, 48 detainees were unanimously approved for 

continued detention under the AUMF. 

Although each detainee presented unique issues, all of the detainees ultimately 

designated for continued detention satisfied three core criteria: First, the totality of 

available information—including credible information that might not be admissible in a 

criminal prosecution—indicated that the detainee poses a high level of threat that cannot 

be mitigated sufficiently except through continued detention; second, prosecution of the 

detainee in a federal criminal court or a military commission did not appear feasible; and 

third, notwithstanding the infeasibility of criminal prosecution, there is a lawful basis for 

the detainee’s detention under the AUMF. 

23
 
Broadly speaking, the detainees designated for continued detention were 

characterized by one or more of the following factors: 

•	 Significant organizational role within al-Qaida, the Taliban, or associated 

forces. In contrast to the majority of detainees held at Guantanamo, many of 

the detainees approved for detention held a leadership or other specialized role 

within al-Qaida, the Taliban, or associated forces. Some provided operational, 

logistical, financial, or fundraising support for al-Qaida. Others were al-Qaida 

members who were selected to serve as bodyguards for Usama bin Laden 

based on their loyalty to the organization. Others were Taliban military 

commanders or senior officials, or played significant roles in insurgent groups 

in Afghanistan allied with the Taliban, such as Hezb-e-Islami Gulbuddin. 

•	 Advanced training or experience. The detainees approved for detention 

tended to have more extensive training or combat experience than those 

approved for transfer. Some of these detainees were veteran jihadists with 

lengthy involvement in the training camps in Afghanistan. Several had 

expertise in explosives or other tactics geared toward terrorist operations. 

•	 Expressed recidivist intent. Some detainees designated for detention have, 

while at Guantanamo, expressly stated or otherwise exhibited an intent to 

reengage in extremist activity upon release. 

•	 History of associations with extremist activity. Some of the detainees 

approved for detention have a history of engaging in extremist activities or 

particularly strong ties (either directly or through family members) to 

extremist organizations. 

Lawful basis for detention. Under the Executive Order, every detainee’s 

disposition must be lawful. Accordingly, the Task Force consulted closely with the 

Department of Justice regarding every detainee approved for continued detention to 

ensure that the detainee fell within the bounds of the Government’s detention authority 

under the AUMF, as described above. 

Prosecution not currently feasible. Although dangerous and lawfully held, the 

detainees designated for detention currently cannot be prosecuted in either a federal court 

or a military commission. While the reasons vary from detainee to detainee, generally 

these detainees cannot be prosecuted because either there is presently insufficient 

admissible evidence to establish the detainee’s guilt beyond a reasonable doubt in either a 

federal court or military commission, or the detainee’s conduct does not constitute a 

chargeable offense in either a federal court or military commission. Though prosecution 

currently is not feasible for these detainees, designating a detainee for detention does not 

preclude future prosecution in either a federal court or a military commission should new 

evidence or other developments make a prosecution viable. 

Transfer or release not currently feasible. Finally, none of the detainees 

approved for detention can be safely transferred to a third country at this time. This does 

24
 
 

 

not mean that the detainee could never be safely transferred to a third country. Rather, 

designating the detainee for continued detention at this time indicates only that given the 

detainee’s current threat and the current willingness or ability of potential destination 

countries to mitigate the threat, the detainee is not currently eligible for transfer or 

release. Should circumstances change (e.g., should potential receiving countries 

implement appropriate security measures), transfer might be appropriate in the future. 

C. Continued Reviews 

Detainees approved for continued detention under the AUMF will be subject to 

further reviews. First, in accordance with the Supreme Court’s decision in Boumediene v. 

Bush,

22 each detainee has the opportunity to seek judicial review of their detention by 

filing a petition for a writ of habeas corpus in federal court. In such cases, the court 

reviews whether the detainee falls within the government’s lawful detention authority. In 

cases where courts have concluded that the detainee is not lawfully held, the courts have 

issued orders requiring the government to take diplomatic steps to achieve the detainee’s 

release. Thus far, federal district courts have ruled on cases brought by four of the 48 

detainees approved for continued detention. In each of the four cases, the district court 

denied the habeas petition and upheld the lawfulness of the detention. Many other cases 

are pending in district court, and some are pending on appeal. 

Second, as the President stated in his speech at the National Archives, “a thorough 

process of periodic review” is needed to ensure that “any prolonged detention is carefully 

evaluated and justified.” Thus, in addition to the judicial review afforded through habeas 

litigation, each detainee approved for continued detention will be subject to periodic 

Executive Branch review. 

X. Conditional Detention Decisions: Yemeni Detainees 

As discussed above, the review of the 97 Yemeni detainees posed particular 

challenges from the outset given the security situation in Yemen. After conducting a 

case-by-case review of the Yemeni detainees, the review participants unanimously agreed 

that 36 Yemenis (29 of whom remain at Guantanamo) are appropriate for transfer, subject 

to security measures, and that 26 Yemenis should continue to be detained under the 

AUMF in light of their individual threat. In addition, there are currently five Yemenis 

with active prosecution referrals, two of whom the Attorney General announced will be 

prosecuted in federal court for their roles in the September 11 attacks (Ramzi bin alShibh and Walid Muhammed Salih Mubarak Bin Attash). 

The remaining 30 Yemeni detainees were determined to pose a lower threat than 

the group of detainees designated for continued detention under the AUMF. Nonetheless, 

the review participants determined, based on a number of factors, that these 30 detainees 

should not be transferred to Yemen in the near future and should not be among the first 

groups of transfers to Yemen even if the current moratorium on such transfers is lifted. 

22 122 S. Ct. 2229 (2008). 

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Thus, these 30 detainees were approved for “conditional” detention, meaning that 

they may be transferred if one of the following conditions is satisfied: (1) the security 

situation improves in Yemen; (2) an appropriate rehabilitation program becomes 

available; or (3) an appropriate third-country resettlement option becomes available. 

Should any of these conditions be satisfied, however, the remaining 29 Yemeni detainees 

approved for transfer would receive priority for any transfer options over the 30 Yemeni 

detainees approved for conditional detention.23 

At the time of the closure of the detention facilities at Guantanamo, the status of 

detainees approved for conditional detention will be reconsidered for possible transfer to 

Yemen, a third country, or a detention facility in the United States. 

XI. Diplomatic Efforts 

The President’s Executive Order recognized that diplomatic efforts would be 

essential to the review and appropriate disposition of individuals detained at 

Guantanamo. To implement the review decisions approving the transfer of detainees, the 

order provides that 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.” The President emphasized this 

point during his speech at the National Archives, stating that for cases involving 

“detainees who we have determined can be transferred safely to another country . . . my 

Administration is in ongoing discussions with a number of other countries about the 

transfer of detainees to their soil.” 

To fulfill this mission, the Secretary of State created an office to lead the 

diplomatic efforts to transfer detainees and appointed an experienced career diplomat to 

serve as the Special Envoy for the Closure of the Guantanamo Bay Detention Facilities. 

The highest levels in the administration supported these efforts. The President, Vice 

President, and Cabinet members—including the Secretary of State, Attorney General, and 

Secretary for Homeland Security—have discussed the closure of the Guantanamo 

detention facilities and the transfer of detainees outside the United States with their 

foreign government counterparts. To assist these diplomatic efforts, the National 

Counterterrorism Center facilitated the sharing of information about the detainees with 

foreign governments considering whether to accept them. In addition, the government 

arranged meetings between officials from interested countries and detainees at 

Guantanamo to facilitate resettlement and repatriation discussions. 

From the outset of the review, the State Department developed a diplomatic 

strategy for Guantanamo, focusing on efforts to resettle detainees who could not be sent 

to their home countries because of post-transfer treatment concerns. In June 2009, the 

United States and European Union concluded a joint statement in support of the 

23 Ten of the detainees approved for conditional detention had initially been approved for transfer 

by the review participants. Because the specific conditions placed on the transfer approvals of these 10 

detainees were the equivalent of those used for the conditional detention category, the 10 detainees were 

later redesignated for conditional detention. 

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resettlement of a number of detainees in Europe, expressing the readiness of certain 

member states to resettle former Guantanamo detainees on a case-by-case basis. 

Following this joint statement, a number of European governments—such as Spain, Italy, 

Portugal, and Ireland—announced that they were prepared to work out arrangements to 

accept some detainees. In addition, the Government of Palau also announced its 

readiness to accept a number of Uighur detainees. Following these initial successes, the 

State Department intensified efforts to implement resettlements. The public offers by 

some European governments to resettle detainees encouraged other governments to make 

similar offers. 

To date, the diplomatic efforts taken under the Executive Order have led to the 

resettlement of 18 detainees in the following seven locations: Belgium, Bermuda, 

France, Hungary, Ireland, Palau, and Portugal.24 Resettlement negotiations are ongoing 

with a number of countries, e.g., Spain, Switzerland, and Slovakia. In addition, Italy 

accepted two detainees for criminal prosecution on charges stemming from pre-9/11 

activities. All efforts to resettle detainees include discussions with receiving 

governments about post-transfer security measures, as well as other issues such as the 

integration and humane treatment of resettled detainees. 

The process for engaging a country on resettlement issues can be lengthy and 

complicated. The State Department has engaged in discussions with dozens of countries 

across the globe to initiate or further resettlement negotiations once it has been 

determined that a government is open to discussions. When this process is successful, 

initial receptiveness leads to discussions regarding individual detainees, foreign 

government interagency review, foreign government interviews of prospective 

resettlement candidates, the foreign government’s formal decision-making process, 

integration plans, and, ultimately, resettlement. The length of the effort often has been 

influenced by political and other issues in potential resettlement countries (e.g., public 

perceptions of current and past U.S. detention policies), third-country views (and 

sometimes pressure) with respect to detainee resettlement, and public views of the 

Guantanamo detention facility generally. Depending on how these factors affect 

individual cases, the process can be very lengthy. 

Once a resettlement has occurred, the State Department and other agencies remain 

in contact with host governments following transfer on these issues. The State 

Department is engaged in ongoing discussions for the remaining detainees who cannot be 

repatriated due to post-transfer treatment concerns and is on track to find resettlement 

countries for most if not all of the detainees in this category. 

The State Department also has worked to repatriate detainees to their home 

countries, in coordination with other agencies and with the National Security Council. 

Thus far, 24 detainees have been repatriated since last January to nine different 

locations—Afghanistan, Algeria, Chad, Iraq, Kuwait, Saudi Arabia, Somaliland, the 

United Kingdom, and Yemen. All decisions to repatriate detainees have been made in 

24 From 2002-2008, a total of eight Guantanamo detainees were resettled, all in Albania. 

27
 
light of the latest intelligence information and with the consent of all relevant agencies. 

In light of such information, and following the attempted terrorist attack on December 25, 

2009, the President announced that repatriations to Yemen would be suspended for the 

foreseeable future. In addition, the government has adopted enhanced procedures for the 

implementation of repatriation decisions, requiring a cabinet-level review prior to going 

forward with any repatriation. 

XII. Conclusion 

The review process established pursuant to the Executive Order is now complete. 

The participating agencies have reviewed and unanimously agreed on dispositions for 

each of the 240 detainees subject to the review. The agencies responsible for the review 

will continue to handle operational issues involving detainees, including the 

implementation of the review determinations, and the National Security Council will 

coordinate the resolution of policy issues pertaining to Guantanamo. The Task Force has 

ensured that its analyses of the detainees and the information collected in the course of 

the review are properly preserved to assist in the resolution of these issues going forward. 

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