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[Federal Register Volume 74, Number 16 (Tuesday, January 27, 2009)]
[Presidential Documents]
[Pages 4897-4900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1893]



                        Presidential Documents 



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

[[Page 4897]]

                Executive Order 13492 of January 22, 2009

                
Review and Disposition of Individuals Detained At 
                the Guant[aacute]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 Guant[aacute]namo Bay Naval Base 
                (Guant[aacute]namo) and promptly to close detention 
                facilities at Guant[aacute]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 
                Guant[aacute]namo'' and ``individuals covered by this 
                order'' mean individuals currently detained by the 
                Department of Defense in facilities at the 
                Guant[aacute]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 Guant[aacute]namo. The Federal 
                Government has moved more than 500 such detainees from 
                Guant[aacute]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 
                Guant[aacute]namo are eligible for such transfer or 
                release.
                    (b) Some individuals currently detained at 
                Guant[aacute]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 Guant[aacute]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 Guant[aacute]namo should 
                precede the closure of the detention facilities at 
                Guant[aacute]namo.
                    (c) The individuals currently detained at 
                Guant[aacute]namo have the constitutional privilege of 
                the writ of habeas corpus. Most of those individuals

[[Page 4898]]

                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 Guant[aacute]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 Guant[aacute]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 Guant[aacute]namo.
                    (f) Some individuals currently detained at 
                Guant[aacute]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 Guant[aacute]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 
                Guant[aacute]namo. The detention facilities at 
                Guant[aacute]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 Guant[aacute]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 Guant[aacute]namo 
                Detentions.

                    (a) Scope and Timing of Review. A review of the 
                status of each individual currently detained at 
                Guant[aacute]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 
Guant[aacute]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.

[[Page 4899]]

  (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 Guant[aacute]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 Guant[aacute]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 Guant[aacute]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 Guant[aacute]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 Guant[aacute]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 
                Guant[aacute]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.

[[Page 4900]]

                    (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.
                
                
                    (Presidential Sig.)

                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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