Presidential Documents

Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Presidential Documents 4897 

Executive Order 13492 of January 22, 2009 

Review and Disposition of Individuals Detained At the 

Guanta ́namo Bay Naval Base and Closure of Detention Facilities 

By the authority vested in me as President by the Constitution and the 

laws of the United States of America, in order to effect the appropriate 

disposition of individuals currently detained by the Department of Defense 

at the Guanta ́namo Bay Naval Base (Guanta ́namo) and promptly to close 

detention facilities at Guanta ́namo, consistent with the national security 

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

I hereby order as follows: 

Section 1. Definitions. As used in this order: 

(a) ‘‘Common Article 3’’ means Article 3 of each of the Geneva Conventions. 

(b) ‘‘Geneva Conventions’’ means: 

(i) the Convention for the Amelioration of the Condition of the Wounded 

and Sick in Armed Forces in the Field, August 12, 1949 (6 UST 3114); 

(ii) the Convention for the Amelioration of the Condition of Wounded, 

Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 

1949 (6 UST 3217); 

(iii) the Convention Relative to the Treatment of Prisoners of War, 

August 12, 1949 (6 UST 3316); and 

(iv) the Convention Relative to the Protection of Civilian Persons in 

Time of War, August 12, 1949 (6 UST 3516). 

(c) ‘‘Individuals currently detained at Guanta ́namo’’ and ‘‘individuals covered by this order’’ mean individuals currently detained by the Department 

of Defense in facilities at the Guanta ́namo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants. 

Sec. 2. Findings. 

(a) Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants 

have been detained at Guanta ́namo. The Federal Government has moved 

more than 500 such detainees from Guanta ́namo, either by returning them 

to their home country or by releasing or transferring them to a third country. 

The Department of Defense has determined that a number of the individuals 

currently detained at Guanta ́namo are eligible for such transfer or release. 

(b) Some individuals currently detained at Guanta ́namo have been there 

for more than 6 years, and most have been detained for at least 4 years. 

In view of the significant concerns raised by these detentions, both within 

the United States and internationally, prompt and appropriate disposition 

of the individuals currently detained at Guanta ́namo and closure of the 

facilities in which they are detained would further the national security 

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

Merely closing the facilities without promptly determining the appropriate 

disposition of the individuals detained would not adequately serve those 

interests. To the extent practicable, the prompt and appropriate disposition 

of the individuals detained at Guanta ́namo should precede the closure of 

the detention facilities at Guanta ́namo. 

(c) The individuals currently detained at Guanta ́namo have the constitutional privilege of the writ of habeas corpus. Most of those individuals 

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have filed petitions for a writ of habeas corpus in Federal court challenging 

the lawfulness of their detention. 

(d) It is in the interests of the United States that the executive branch 

undertake a prompt and thorough review of the factual and legal bases 

for the continued detention of all individuals currently held at Guanta ́namo, 

and of whether their continued detention is in the national security and 

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

The unusual circumstances associated with detentions at Guanta ́namo require 

a comprehensive interagency review. 

(e) New diplomatic efforts may result in an appropriate disposition of 

a substantial number of individuals currently detained at Guanta ́namo. 

(f) Some individuals currently detained at Guanta ́namo may have committed offenses for which they should be prosecuted. It is in the interests 

of the United States to review whether and how any such individuals 

can and should be prosecuted. 

(g) It is in the interests of the United States that the executive branch 

conduct a prompt and thorough review of the circumstances of the individuals currently detained at Guanta ́namo who have been charged with offenses 

before military commissions pursuant to the Military Commissions Act of 

2006, Public Law 109–366, as well as of the military commission process 

more generally. 

Sec. 3. Closure of Detention Facilities at Guanta ́namo. The detention facilities 

at Guanta ́namo for individuals covered by this order shall be closed as 

soon as practicable, and no later than 1 year from the date of this order. 

If any individuals covered by this order remain in detention at Guanta ́namo 

at the time of closure of those detention facilities, they shall be returned 

to their home country, released, transferred to a third country, or transferred 

to another United States detention facility in a manner consistent with 

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

States. 

Sec. 4. Immediate Review of All Guanta ́namo Detentions. 

(a) Scope and Timing of Review. A review of the status of each individual 

currently detained at Guanta ́namo (Review) shall commence immediately. 

(b) Review Participants. The Review shall be conducted with the full 

cooperation and participation of the following officials: 

(1) the Attorney General, who shall coordinate the Review; 

(2) the Secretary of Defense; 

(3) the Secretary of State; 

(4) the Secretary of Homeland Security; 

(5) the Director of National Intelligence; 

(6) the Chairman of the Joint Chiefs of Staff; and 

(7) other officers or full-time or permanent part-time employees of the 

United States, including employees with intelligence, counterterrorism, 

military, and legal expertise, as determined by the Attorney General, with 

the concurrence of the head of the department or agency concerned. 

(c) Operation of Review. The duties of the Review participants shall 

include the following: 

(1) Consolidation of Detainee Information. The Attorney General shall, 

to the extent reasonably practicable, and in coordination with the other 

Review participants, assemble all information in the possession of the 

Federal Government that pertains to any individual currently detained 

at Guanta ́namo and that is relevant to determining the proper disposition 

of any such individual. All executive branch departments and agencies 

shall promptly comply with any request of the Attorney General to provide 

information in their possession or control pertaining to any such individual. The Attorney General may seek further information relevant to 

the Review from any source. 

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(2) Determination of Transfer. The Review shall determine, on a rolling 

basis and as promptly as possible with respect to the individuals currently 

detained at Guanta ́namo, whether it is possible to transfer or release 

the individuals consistent with the national security and foreign policy 

interests of the United States and, if so, whether and how the Secretary 

of Defense may effect their transfer or release. The Secretary of Defense, 

the Secretary of State, and, as appropriate, other Review participants shall 

work to effect promptly the release or transfer of all individuals for whom 

release or transfer is possible. 

(3) Determination of Prosecution. In accordance with United States law, 

the cases of individuals detained at Guanta ́namo not approved for release 

or transfer shall be evaluated to determine whether the Federal Government 

should seek to prosecute the detained individuals for any offenses they 

may have committed, including whether it is feasible to prosecute such 

individuals before a court established pursuant to Article III of the United 

States Constitution, and the Review participants shall in turn take the 

necessary and appropriate steps based on such determinations. 

(4) Determination of Other Disposition. With respect to any individuals 

currently detained at Guanta ́namo whose disposition is not achieved under 

paragraphs (2) or (3) of this subsection, the Review shall select lawful 

means, consistent with the national security and foreign policy interests 

of the United States and the interests of justice, for the disposition of 

such individuals. The appropriate authorities shall promptly implement 

such dispositions. 

(5) Consideration of Issues Relating to Transfer to the United States. 

The Review shall identify and consider legal, logistical, and security issues 

relating to the potential transfer of individuals currently detained at 

Guanta ́namo to facilities within the United States, and the Review participants shall work with the Congress on any legislation that may be appropriate. 

Sec. 5. Diplomatic Efforts. The Secretary of State shall expeditiously pursue 

and direct such negotiations and diplomatic efforts with foreign governments 

as are necessary and appropriate to implement this order. 

Sec. 6. Humane Standards of Confinement. No individual currently detained 

at Guanta ́namo shall be held in the custody or under the effective control 

of any officer, employee, or other agent of the United States Government, 

or at a facility owned, operated, or controlled by a department or agency 

of the United States, except in conformity with all applicable laws governing 

the conditions of such confinement, including Common Article 3 of the 

Geneva Conventions. The Secretary of Defense shall immediately undertake 

a review of the conditions of detention at Guanta ́namo to ensure full compliance with this directive. Such review shall be completed within 30 days 

and any necessary corrections shall be implemented immediately thereafter. 

Sec. 7. Military Commissions. The Secretary of Defense shall immediately 

take steps sufficient to ensure that during the pendency of the Review 

described in section 4 of this order, no charges are sworn, or referred 

to a military commission under the Military Commissions Act of 2006 and 

the Rules for Military Commissions, and that all proceedings of such military 

commissions to which charges have been referred but in which no judgment 

has been rendered, and all proceedings pending in the United States Court 

of Military Commission Review, are halted. 

Sec. 8. General Provisions. 

(a) Nothing in this order shall prejudice the authority of the Secretary 

of Defense to determine the disposition of any detainees not covered by 

this order. 

(b) This order shall be implemented consistent with applicable law and 

subject to the availability of appropriations. 

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4900 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Presidential Documents 

(c) This order is not intended to, and does not, create any right or benefit, 

substantive or procedural, enforceable at law or in equity by any party 

against the United States, its departments, agencies, or entities, its officers, 

employees, or agents, or any other person. 

THE WHITE HOUSE, 

January 22, 2009. 

[FR Doc. E9–1893 

Filed 1–26–09; 11:15 am] 

Billing code 3195–W9–P 


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