Guantanamo Detention Center: Legislative Activity in the 111th Congress
Released: 2011-01-13T00:00:00

Introduction

Prompted in part by proposals to close the detention facility or transfer detainees to the United States, the continued detention of alleged enemy combatants at the U.S. Naval Station in Guantanamo Bay, Cuba, was the subject of considerable interest during the 111 th Congress. Seven enacted measures contain provisions that directly restrict the transfer or release of Guantanamo detainees, particularly into the United States. Many of the restrictions applied only to funds appropriated during the 2010 fiscal year. However, Congress temporarily extended conditions imposed by FY2010 appropriations measures through March 4, 2011. Additionally, the Ike Skelton National Defense Authorization Act for FY2011 (2011 NDAA, P.L. 111-383 ), which was signed into law on January 7, 2011, contains blanket restrictions on the use of military funds either to transfer or release Guantanamo detainees into the United States, or assist in the transfer or release of such persons into the country. The act also imposes restrictions on the transfer of detainees to the custody of certain foreign countries, in an effort to minimize the likelihood that transferred detainees return to hostilities.

This report surveys provisions restricting transfer, together with other provisions enacted in the 111 th Congress relating to Guantanamo detainees. For more detailed explorations of the legal issues related to the potential closure of the detention facility or the transfer, release, and treatment of detainees, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues , by [author name scrubbed] et al.

Background

In 2001, Congress authorized the President's use of "all necessary and appropriate force" against those responsible for the 9/11 terrorist attacks. Pursuant to that authority, the United States has captured suspected Al Qaeda and Taliban members and detained them at several locations, including Guantanamo. Most of the 779 persons detained at Guantanamo at some point during post-9/11 military operations have been transferred to a foreign government for continued detention or release. As of January 11, 2010, 173 detainees continue to be held at the facility. A number of issues concerning the remaining detainees are unsettled. In some instances, the United States has encountered difficulties repatriating or resettling Guantanamo detainees who are no longer believed to be enemy belligerents, either because it has been unable to find a country willing to accept them, or because of concerns that a detainee would face torture if transferred to a particular country. Other issues have arisen concerning whether to try certain detainees for criminal offenses in either military or civilian courts, or whether some detainees may lawfully be held for the duration of the conflict with Al Qaeda and the Taliban so as to prevent their return to hostilities.

Since its inception, the policy of detaining suspected belligerents at Guantanamo has been the subject of controversy. Shortly after taking office, President Barack Obama issued three executive orders affecting U.S. policy towards Guantanamo detainees. Most notably, Executive Order 13492 called for the Guantanamo detention facility to be closed as soon as practicable, and no later than January 22, 2010. It also ordered an immediate review of each detainee's status by a special task force and temporarily halted all proceedings before military commissions. Although the order's deadline for the closure of the Guantanamo detention facility was not met, the Obama Administration has stated that it remains committed to closing the facility as expeditiously as possible. Military commission proceedings for some Guantanamo detainees charged with war crimes have also resumed.

Two additional executive orders addressed overall wartime detention policy. One limited the methods for interrogating persons in U.S. custody (as part of any armed conflict) to those listed in the Army Field Manual on Human Intelligence Collector Operations, although it provides an exception for interrogations by the Federal Bureau of Investigation (FBI), stating that the FBI may "continu[e] to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises." Another executive order established the Special Task Force on Detainee Disposition, tasked with "identif[ying] lawful options" for the disposition of Guantanamo detainees and others captured by the United States. Because executive orders can be revoked or modified by subsequent presidential directives, legislation would be necessary to make the President's policies permanent. Likewise, Congress may reverse or adjust the approach of the executive orders by statute in any area in which it has the authority to act.

Key issues implicated by the potential closure of the Guantanamo detention facility include the transfer or release of detainees and procedures for prosecuting them or assessing their enemy belligerency status. Some members of Congress have noted that issues related to the disposition of the remaining detainees complicate any legislative actions to fund, mandate, or prohibit closure of the detention facility. For example, when introducing a bill proposing a timeline for closure of the facility, Senator Dianne Feinstein noted that "the hard part about closing Guantanamo is not deciding to go do it; it is figuring out what to do with the remaining detainees." Thus, much of the legislative activity related to Guantanamo has focused on the transfer, release, and treatment of detainees.

Proposed transfers to the United States have garnered particular attention. In November 2009, the U.S. Department of Justice announced that five Guantanamo detainees would be transferred to New York for prosecution for criminal offenses related to the 9/11 terrorist attacks (one Guantanamo detainee had already been transferred to the United States in June 2009 to face criminal charges related to the bombing of the U.S. embassies in Tanzania and Kenya ). In December 2009, the President issued a memorandum directing the acquisition of the Thomson Correctional Center, a maximum-security facility in Illinois, so that designated Guantanamo detainees could be transferred there for continued detention. The implementation of these proposals was reportedly placed on hold, with alternative approaches being developed.

Enacted Laws

Provisions relating to Guantanamo detainees were enacted as part of nine laws in the 111 th Congress. Seven of these measures limit the use of funds to transfer or release Guantanamo detainees in the United States: the 2009 Supplemental Appropriations Act ( P.L. 111-32 ); the Department of Homeland Security Appropriations Act, 2010 ( P.L. 111-83 ); the 2010 National Defense Authorization Act ( P.L. 111-84 ); the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010 ( P.L. 111-88 ); the Consolidated Appropriations Act, 2010 ( P.L. 111-117 ); the Department of Defense Appropriations Act, 2010 ( P.L. 111-118 ); and the 2011 NDAA ( P.L. 111-383 ). The majority of these enactments contain restrictions on the use of appropriated funds to transfer or release Guantanamo detainees into the United States; the most stringent restriction being found in the 2011 NDAA, which includes a blanket prohibition on the use of authorized funds to transfer or release Guantanamo detainees into the country for any purpose. Two other measures enacted in the 111 th Congress, the Supplemental Appropriations Act, 2010 ( P.L. 111-212 ), and the Intelligence Authorization Act for FY2010 ( P.L. 111-259 ), do not contain provisions directly affecting Guantanamo detainees, but do require the Executive to supply certain information to Congress or the public that pertains to such persons.

Congress did not enact any FY2011 regular appropriations acts by the end of the 2010 fiscal year, Instead, Congress passed a series of continuing resolutions to temporarily extend funding for federal agencies. On December 22, 2010, President Obama signed the Continuing Appropriations Act, 2011 ( P.L. 111-322 ) into law. The act generally extends funding for federal agencies at the FY2010 enacted spending levels through March 4, 2011, under the authority and conditions provided for under FY2010 appropriations acts. Accordingly, restrictions imposed by FY2010 appropriations measures on the use of funds for the transfer and release of Guantanamo detainees remain in place.

Restrictions on Transfer and Release

Seven measures enacted in the 111 th Congress prohibit or place conditions on the use of federal funds to release or transfer Guantanamo detainees into the United States. Such measures may be prompted by perceived security risks that some argue could arise if suspected terrorists were brought to the United States. The enactments also provide reporting requirements that must be satisfied before a detainee may be transferred or released to a foreign country. Pursuant to the fourth Continuing Appropriations Act, 2011 ( P.L. 111-322 ), conditions imposed on the transfer or release of Guantanamo detainees under FY2010 appropriations measures remain in effect through March 4, 2011.

Although several FY2010 appropriations measures restricted appropriated funds from being used to transfer or release Guantanamo detainees into the United States, they permitted transfers for purposes of criminal prosecution or detention during legal proceedings, contingent upon certain reporting requirements being fulfilled. However, the 2011 NDAA ( P.L. 111-383 ) which was signed into law on January 7, 2011, imposes more significant restrictions on detainee transfers than previous enactments. Specifically, the act provides that:

None of the funds authorized to be appropriated by this Act for fiscal year 2011 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who (1) is not a United States citizen or a member of the Armed Forces of the United States; and (2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

In addition to establishing an absolute bar on the use of authorized Department of Defense (DOD) funds to transfer or release detainees into the United States, this provision also bars funds from being used to assist in the transfer or release of such persons. The prohibition on the use of funds to assist in the transfer or release of detainees appears to prevent the DOD from participating in any effort by another entity to transfer or release detainees into the United States.

Because Guantanamo detainees are presently in military custody, the 2011 NDAA appears to effectively bar the transfer of any Guantanamo detainee into the country, despite language in previously enacted measures that permitted other federal agencies to use appropriated funds to transfer detainees into the country for criminal prosecution. Some have suggested that because the defense authorization act only restricts the use of military funding to transfer Guantanamo detainees, it would not prevent another federal agency (e.g., the Department of Justice) from using its own appropriated funds to effectuate the transfer of Guantanamo detainees into the United States, subject to the limitations contained in relevant appropriations enactments. On the other hand, examination of the legislative record supports the view that Congress believed that the defense authorization act would effectively prevent the transfer of any Guantanamo detainee into the United States. When presenting the bill for consideration on the House floor, House Chairman of the Armed Services Committee Ike Skelton characterized the measure as:

the most thorough and comprehensive set of restrictions ever placed on the transfer and release of detainees. It is substantially stronger than current law, and voting against this bill will have the effect of making it easier to bring detainees into the United States….

Statements made by other members of the House and Senate during consideration of the act also appear to reflect a belief that the measure would effectively preclude any transfer of Guantanamo detainees into the United States.

When signing the 2011 NDAA into law, President Obama issued a statement expressing his opposition to those provisions that limit executive discretion to transfer detainees into the United States or to the custody of certain foreign governments or entities. In the statement, President Obama expressed concern that the provision limiting detainee transfers into the United States "represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees…." He further stated that the provision limiting executive discretion to transfer detainees to the custody of foreign entities would "interfere with the authority of the executive branch to make important and consequential foreign policy and national security determinations" regarding the transfer of persons captured in an armed conflict. While highly critical of these provisions' effect on executive discretion, President Obama's signing statement did not allege that they represented an unconstitutional infringement upon executive authority, or claim that the executive branch was not legally bound to comply with the provisions' requirements. President Obama did, however, state that his "Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future."

Restrictions on the Use of Funds to Release Detainees into the United States

Seven enacted measures bar the use of funds to release Guantanamo detainees into the United States. The 2009 Supplemental Act banned the use of funds appropriated under that or previous acts to release any Guantanamo detainee into the continental United States, Hawaii, or Alaska. Four other appropriations measures similarly prohibit the use of federal funds—particularly those appropriated during the 2010 fiscal year—to release a Guantanamo detainee into the United States or specified territories. The 2010 National Defense Authorization Act prohibited DOD from using funds that were authorized to be appropriated under the act or otherwise made available to the department to release a Guantanamo detainee into the United States or its territories or possessions during the period beginning October 1, 2009, and ending December 31, 2010. The 2011 NDAA prohibits authorized FY2011 appropriations from being used to release a Guantanamo detainee, or assist in the release of such a person, into the United States or its territories or possessions.

Restrictions and Reporting Requirements Relating to Transfers to the United States30

Seven measures enacted in the 111 th Congress place restrictions on the transfer of Guantanamo detainees into the United States. The 2011 NDAA, however, bars authorized appropriations to the DOD from being used to transfer, or assist in the transfer, of any Guantanamo detainee into the United States, including for purposes of criminal prosecution. Earlier measures enacted by the 111 th Congress permitted the use of funds to enable the transfer of detainees only for purposes of prosecution or detention during legal proceedings, but required the President to fulfill a reporting requirement 45 days prior to effecting the transfer.

Legislative enactments in the 111 th Congress that permitted the transfer of Guantanamo detainees into the United States for limited purposes contained nearly identical 45-day reporting requirements, but there are a few differences in the requirements of the respective enactments. The 2009 Supplemental Appropriations Act, the first measure to be enacted, required the President to submit a classified report to Congress concerning the proposed transfer of an individual to the United States that would, at minimum, contain (1) "findings of an analysis regarding any risk to the national security of the United States that is posed by the transfer"; (2) "costs associated with transferring the individual"; (3) "[t]he legal rationale and associated court demands for transfer"; (4) "[a] plan for mitigation of any risk" posed by the transferee to the national security of the United States; and (5) "[a] copy of a notification to the Governor of the State to which the individual will be transferred ... with a certification by the Attorney General of the United States in classified form at least 14 days prior to such transfer (together with supporting documentation and justification) that the individual poses little or no security risk to the United States."

The reporting requirements relating to detainee transfers that are contained in the 2010 National Defense Authorization Act are slightly different, and arguably contemplate a greater degree of participation by state government officials in federal decisions to transfer detainees to a particular location. Specifically, the act requires the President, 45 days prior to the transfer of a detainee to the United States, to provide congressional defense committees a classified report which contains (1) "an assessment of the risk that the [detainee] poses to the national security of the United States, its territories, or possessions"; (2) a proposal for the disposition of each detainee; (3) a plan to mitigate any identified national security risks; (4) the proposed transfer location; (5) information regarding costs associated with the transfer; (6) a "summary" of a "consultation" required to take place with the local jurisdiction's chief executive; and (7) "a certification by the Attorney General that under the plan the individual poses little or no security risk to the United States, its territories, or possessions." The sixth component of the classified report refers to a separate requirement in the 2010 National Defense Authorization Act that the President "consult with the chief executive" of the jurisdiction that is the proposed location of transfer. It appears to contemplate a somewhat greater degree of involvement by state governors in detainee transfer decisions than the 2009 Supplemental Appropriations Act, which only required a certification that a governor had been "notified" regarding a transfer.

In all of the other measures containing reporting requirements with respect to the transfer of detainees into the United States, the components of the 45-day reports are identical and include some information required by the 2009 Supplemental and the FY2010 Defense Authorization Acts. The components include (1) "[a] determination of the risk that the individual might instigate an act of terrorism within the continental United States, Alaska, Hawaii, the District of Columbia, or the United States territories if the individual were so transferred"; (2) "[a]determination of the risk that the individual might advocate, coerce, or incite violent extremism, ideologically motivated criminal activity, or acts of terrorism, among inmate populations at incarceration facilities ..."; (3) "costs associated with transferring the individual in question"; (4) "[t]he legal rationale and associated court demands for transfer"; (5) "[a] plan for mitigation of any risks described [in the first, second, or seventh components]"; (6) "[a] copy of a notification to the Governor of the State to which the individual will be transferred ... with a certification by the Attorney General of the United States in classified form at least 14 days prior to such transfer (together with supporting documentation and justification) that the individual poses little or no security risk to the United States"; and (7) "an assessment of any risk to the national security of the United States or its citizens, including members of the Armed Services of the United States, that is posed by such transfer and the actions taken to mitigate such risk."

The geographic applications of restrictions imposed by the seven enactments also differ. The 2009 Supplemental Act appears to have only restricted transfers into the United States. In contrast, the 2010 and 2011 NDAAs' restrictions included all U.S. "territories or possessions." Each of the other relevant enactments explicitly applies to the United States and all of its territories, namely Guam, American Samoa, the U.S. Virgin Islands, the Commonwealth of Puerto Rico, and the Commonwealth of the Northern Mariana Islands. However, they do not appear to apply to other U.S. possessions.

Restrictions and Reporting Requirements Concerning Release or Transfer of Detainees to Other Countries

Six of the measures enacted during the 111 th Congress make the use of funds to effectuate the transfer or release of a Guantanamo detainee to a foreign state contingent upon certain reporting requirements being met. The FY2010 Homeland Security Appropriations, Interior Appropriations, Consolidated Appropriations, and Defense Appropriations acts each contain provisions that restrict the use of appropriated funds to transfer or release a Guantanamo detainee to another country or any "freely associated state." The restrictions apply unless the President, 15 days prior to a proposed transfer or release, submits the following information in classified form: (1) the name of the detainee and the country or freely associated state to which he will be transferred; (2) an assessment of the risk to national security or U.S. citizens posed by the transfer or release; and (3) the terms of any agreement with the country or freely associated state that has agreed to accept the detainee. The 2009 Supplemental Appropriations Act contains a provision that is similar except that it does not specify its application to freely associated states.

The 2011 NDAA contains more significant restrictions on the transfer of detainees to foreign countries than prior enactments. The act provides that, except in cases when a detainee transfer is done to effectuate an order by a U.S. court or tribunal, a detainee may only be transferred to the custody or control of a foreign government or the recognized leadership of a foreign entity if, at least 30 days prior to the proposed transfer, the Secretary of Defense certifies to Congress that the foreign government or entity: (1) is not a designated state sponsor of terrorism or terrorist organization; (2) maintains effective control over each detention facility where a transferred detainee may be housed; (3) is not facing a threat likely to substantially affect its ability to control a transferred detainee; (4) has agreed to take effective steps to ensure that the transferred person does not pose a future threat to the United States, its citizens, or its allies; (5) has agreed to take such steps as the Secretary deems necessary to prevent the detainee from engaging in terrorism; and (6) has agreed to share relevant information with the United States related to the transferred detainee that may affect the security of the United States, its citizens, or its allies.

The act also contains a one-year prohibition on the transfer of any detainee to the custody or control of a foreign government or entity if there is a confirmed case that a former Guantanamo detainee who was transferred to that government or entity subsequently engaged in terrorist activity. However, this prohibition is subject to waiver by the Secretary of Defense if he fulfills the certification process described in the preceding paragraph and also determines that the transfer is in the security interests of the United States. The prohibition also does not apply in cases where a transfer is done to effectuate an order by a U.S. court or tribunal.

General Reporting Requirements to Congress

In addition to establishing reporting requirements relating to the transfer and release of Guantanamo detainees, several measures enacted in the 111 th Congress establish more general reporting requirements relating to the Guantanamo detention facility or the facility's detainee population. Several of the enacted laws establish general reporting requirements which direct the Executive to report on the status of Guantanamo detainees. Section 319 of the Supplemental Appropriations Act, 2009 ( P.L. 111-32 ), required the President to submit reports on the Guantanamo "prisoner population" to specified members of Congress within 60 days of the legislation's enactment and every 90 days thereafter. The reports were required to provide the following information with respect to each detainee: (1) the detainee's name and country of origin; (2) a "summary of the evidence, intelligence, and information used to justify" his detention; and (3) a "current accounting of all the measures taken to transfer" him to his home or another country. In addition, the reports must state the "number of individuals released or transferred from detention ... who are confirmed or suspected of returning to terrorist activities after release or transfer" and provide "an assessment of any efforts by al Qaeda to recruit detainees released from detention." The initial report (which was to be completed within 60 days of the legislation's enactment) was required to address several additional matters, including (1) a "description of the process that was previously used for screening the detainees" who have been released and are confirmed or suspected of returning to terrorist activities; (2) "[a]n assessment of the adequacy of that screening process for reducing the risk that detainees previously released or transferred ... would return to terrorist activities after [their] release or transfer"; and (3) "[a]n assessment of lessons learned from previous releases and transfers of individuals who returned to terrorist activities for reducing the risk that detainees released or transferred ... will return to terrorist activities after their release or transfer."

In addition, five enactments establish reporting requirements that must be satisfied before the Executive may cease operations at the Guantanamo detention center. Specifically, they require the President, before "the termination of detention operations" at the detention facility, to submit a classified report to Congress that "describ[es] the disposition or legal status of each individual detained at the facility as of the date of [the relevant act's] enactment." They do not specify the level of detail that the report must include with respect to each detainee, nor do they appear to require any particular length of time between the submission of the report and closure of the facility.

The Supplemental Appropriations Act, 2010 ( P.L. 111-212 ), requires the Director of National Intelligence, not later than 45 days after the enactment of the bill, to fully inform the congressional intelligence committees regarding disposition decisions and threat assessments for Guantanamo detainees that were reached by the Guantanamo Review Task Force established by Executive Order 13492. The Director of National Intelligence is further required to submit information to the congressional intelligence committees in the future regarding any new threat assessments made by the intelligence community regarding a particular Guantanamo detainee, along with access to the intelligence forming the basis for that assessment.

The 2011 NDAA directs the Secretary of Defense, not later than April 1, 2011, to provide a report to congressional defense committees concerning the feasibility of using any proposed facility in the United States or its territories or possessions to house transferred Guantanamo detainees who remain in DOD custody or control. The report is required to include information regarding the rationale for the selection of a proposed facility; the merits of using the proposed facility to house detainees instead of the Guantanamo detention facility; any potential risks that might be incurred by the community surrounding the proposed detention site; the personnel and modifications necessary for the housing of detainees at the proposed facility; and legal issues that could be raised as a result of detaining an individual at the facility rather than at Guantanamo.

Time Frames and Concurrent Application of Measures Restricting Use or Availability of Funds

The restrictions imposed on the transfer and release of Guantanamo detainees that were adopted in the 111 th Congress vary in scope and applicable time frames. Restrictions in the Supplemental Appropriations Act, 2009, applied only to funds appropriated by that or any prior act; although a later measure temporarily extended their application through October 31, 2009, they do not appear to apply to later appropriated funds. The restriction in the 2010 Defense Authorization Act, applied through December 31, 2010, but only to the use of funds appropriated to the Department of Defense. In contrast, restrictions contained in the 2010 Homeland Security, Interior Department, Consolidated Appropriations, and Defense Appropriations Acts appeared to apply to all federal funds, but only during the 2010 fiscal year (October 1, 2009-September 30, 2010). Congress did not appropriate funds for FY2011 before the 2010 fiscal year ended. However, Congress enacted continuing resolutions generally extending funding for federal agencies at the FY2010 enacted spending levels through March 4, 2011, under the authority and conditions provided for under those FY2010 appropriations acts. Accordingly, the funding restrictions on the transfer and release of Guantanamo detainees contained in FY2010 measures for various federal agencies appear to remain in effect until March. For funds appropriated during FY2010, several of the reporting requirements probably apply concurrently. It is likely that the acts will be interpreted so as to avoid a conclusion that a later-enacted provision implicitly repeals an earlier provision. Thus, to the extent that differing reporting requirements apply to the same committee, they would presumably be read as having a cumulative effect. In other words, it is likely that the Executive will submit one or more reports to the committee(s) of jurisdiction which fulfill all applicable requirements.

The restrictions established by the 2011 NDAA relating to the transfer or release of detainees into the United States apply for the entirety of the 2011 fiscal year (i.e., through September 30, 2011), while the limitations imposed on the transfer of detainees to the custody of a foreign government (and related certification requirements) apply for one calendar year following the legislation's date of enactment, January 7, 2011.

Other Relevant Provisions of Enacted Laws

Provisions of enacted measures other than those restricting detainees' transfer or release may also have significant implications for persons held at Guantanamo. First, Title XVIII of the 2010 National Defense Authorization Act ( P.L. 111-84 ), the Military Commissions Act of 2009, establishes new procedures governing military commissions, which may be used to try detainees for violations of the laws of war and specified offenses. Examples of changes enacted in the measure include a prohibition on the use of evidence elicited by cruel, inhuman, or degrading treatment, without regard to when the statement was made; shifting the burden of proof concerning the admissibility of hearsay evidence to the proponent of such evidence; an extension of the obligation to disclose exculpatory information to include evidence of mitigating circumstances; and a detailed set of procedures regarding the use of classified evidence. Although proposals had been introduced earlier in the 111 th Congress that would have abolished military commissions altogether, Congress has instead opted to pass legislation which preserves the military commission system while amending the statutory framework.

Section 1040 of the 2010 National Defense Authorization Act restricts foreign enemy belligerents captured and held outside the United States from being read the warnings required in the domestic criminal law enforcement context by the Supreme Court decision in Miranda v. Arizona . Applying Miranda , courts generally do not admit defendants' statements at trial unless law enforcement officers first advise them, with the warnings typically beginning with "you have the right to remain silent," of their Fifth Amendment right against self-incrimination. Section 1040 provides that

no member of the Armed Forces and no official or employee of the Department of Defense or a component of the intelligence community (other than the Department of Justice) may read to a foreign national who is captured or detained outside the United States as an enemy belligerent and is in the custody or under the effective control of the Department of Defense or otherwise under detention in a Department of Defense facility the statement required by Miranda v. Arizona … or otherwise inform such an individual of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona .

Thus, it applies to all foreign nationals captured or detained abroad as enemy belligerents rather than just foreign nationals detained at Guantanamo. This provision is expressly made inapplicable to the Department of Justice, meaning that agents of the DOJ could potentially read Miranda warnings to persons in military custody. One instance where the DOJ might opt to read Miranda warnings to an enemy belligerent in military custody would be when it intends to bring criminal charges against a detainee in federal civilian court.

Finally, section 1080 of the 2010 National Defense Authorization Act requires, among other things, that the Department of Defense "ensure that each strategic intelligence interrogation of any person who is in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility is videotaped or otherwise electronically recorded."

The FY2010 Homeland Security Appropriations Act includes two additional provisions affecting the treatment of Guantanamo detainees. Section 553, which appears to apply beyond the end of the 2010 fiscal year, requires that former detainees be included on the "No Fly List," "unless the President certifies in writing to Congress that the detainee poses no threat to the United States, its citizens, or its allies." A second provision prohibits the use of funds appropriated under that act to "provide any immigration benefit" to any former Guantanamo detainee, including a visa, admission into the United States, parole into the United States, or classification as a refugee or applicant for asylum. This prohibition is similar to other proposals introduced during the 111 th Congress; however, the other proposals would apply permanently, whereas the prohibition in the Homeland Security Appropriations Act appears to apply only to funds appropriated by that act. The Consolidated Appropriations Act, 2010 contains a similar restriction on using the funds it appropriates to provide a Guantanamo detainee with an immigration benefit.

The Intelligence Authorization Act for FY2010 ( P.L. 111-259 ), which was enacted in October 2010, required the Director of National Intelligence to make publicly available, within 60 days of the law's enactment, an unclassified summary of intelligence relating to recidivism rates of current or former Guantanamo detainees, as well as an assessment of the likelihood that such detainees may engage in terrorism or communicate with terrorist organizations. This report was released on December 7, 2010.

The 2011 NDAA contains a provision barring funds it authorizes to be appropriated to the DOD from being used to renovate or construct a facility in the United States or its territories or possession so that an individual can be transferred from Guantanamo to that facility for continued detention by the DOD.

Other Selected Proposals Considered in the 111th Congress

Numerous legislative proposals introduced during the 111 th Congress addressed the disposition or treatment of Guantanamo detainees. Early in the Congress, several proposals were introduced that would have required the closure of the Guantanamo detention facility within a specified period. However, more recent legislative proposals, including enacted legislation discussed earlier in this report, sought to restrict the transfer or release of Guantanamo detainees into the United States, significantly impacting efforts by the Obama Administration to close the facility. Other proposals introduced during the 111 th Congress raised issues not addressed in the enacted or pending authorization and appropriations measures. It is possible that the proposals, though not enacted into law, might inform legislation in the 112 th Congress.

Restrictions on Transfer or Release

A few proposals would have extended the timeline for restrictions on the transfer or release of Guantanamo detainees, or make such restrictions more stringent. The version of the Continuing Appropriations Act, 2011 ( H.R. 3082 ), which was initially passed by the House on December 8, 2010, would have barred any funds either by it or any prior act from being used in FY2011 to transfer a person detained at Guantanamo (other than a U.S. citizen or member of the U.S. Armed Forces), or assist in the transfer or release of a detainee into the country.

The version of the continuing resolution which was ultimately enacted did not include this limitation, but instead had the practical effect of extending limitations imposed by FY2010 appropriations measures on the transfer or release of Guantanamo detainees through March 4, 2011. However, similar restrictions as those contained in the version of the continuing appropriations resolution that initially passed the House were subsequently contained in the 2011 NDAA (though the defense authorization act's restrictions apply only to military funding, and not to funds appropriated to other federal agencies).

H.R. 5136 , the National Defense Authorization Act for FY2011, which was passed by the House in May 2010, contained almost identical restrictions on the transfer or release of Guantanamo detainees as those contained in H.R. 6523 , the version of the 2011 NDAA which was ultimately enacted into law. H.R. 5136 also contained a similar limitation on the use of authorized funds to modify facilities to house transferred Guantanamo detainees as that contained in the version of the defense authorization act that became law.

S. 3454 , a version of the FY2011 NDAA introduced in the Senate and reported out of committee, would have extended the restrictions on detainee transfers established by the FY2010 National Defense Authorization Act until December 31, 2011. S. 3454 also would have placed a one-year restriction on the use of Department of Defense funds to transfer Guantanamo detainees to five specified countries "where al Qaeda has an active presence," namely, Afghanistan, Pakistan, Saudi Arabia, Somalia, and Yemen. However, in September 2010, a motion to proceed on consideration of the bill by the Senate failed. On December 9, 2010, cloture on a motion to consider S. 3454 was not invoked. The version of the 2011 NDAA ultimately enacted into law did not contain the limitations found in S. 3454 .

The House-passed Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2011 ( H.R. 5822 ) would not have directly restricted the transfer or release of Guantanamo detainees into the United States, but it would have barred the funds it appropriated or made available to the Department of Defense from being used to renovate or construct a facility within the continental United States to house Guantanamo detainees. The version of the continuing resolution for FY2011 that was initially passed by the House would have similarly barred the Department of Justice from using any funds for similar purposes, but this restriction was not ultimately enacted into law.

Congressional Oversight Provisions

In addition to provisions restricting the transfer or release of detainees, some legislative proposals included provisions requiring the submission of reports to Congress, or the release of information to the public, on specified topics affecting detainees.

The first version of the FY2011 defense authorization bill that passed the House ( H.R. 5136 ) contained a reporting requirement relating to detainees' legal representation. It would have required the Department of Defense's Inspector General to "conduct an investigation of the conduct and practices" of attorneys who represented non-citizen Guantanamo detainees in habeas corpus or military commission proceedings. The Inspector General would have been required to submit a report of the findings to the House and Senate Armed Services Committees within 90 days of the bill's enactment. This provision was not contained in the version of the 2011 defense authorization bill that was ultimately enacted into law ( P.L. 111-383 ).

Detainee Treatment

Several bills introduced in the 111 th Congress addressed the interrogation or treatment of persons detained at the Guantanamo detention facility or elsewhere. The House-passed version of H.R. 5136 would have prohibited the use of funds appropriated under the act or otherwise made available to the DOD from being used in violation of § 1040 of the 2010 National Defense Authorization Act, which generally prohibited Armed Forces members or DOD officials from reading Miranda warnings to foreign nationals captured or detained outside the United States as enemy belligerents.

Two bills introduced early in the 111 th Congress, S. 147 and H.R. 374 , proposed that interrogations of all persons in custody of U.S. intelligence agencies be conducted in accordance with the U.S. Army Field Manual. Such legislation would have foreclosed the possibility, left open in President Obama's executive order on interrogation, that techniques other than those in the Army Field Manual could eventually be deemed appropriate for use by agencies outside the military.

A few bills would have restricted detainees' access to public benefits or medical facilities. H.R. 2338 would make those detained at Guantanamo as of the bill's enactment and subsequently transferred to the United States "permanently ineligible" for specified federal, state, or local benefits. Another bill, H.R. 1042 , prohibited the provision of medical treatment to Guantanamo detainees in any facility where members of the Armed Forces also receive treatment or in any facility operated by the Department of Veteran's Affairs. To the extent that H.R. 1042 would have resulted in withholding medical care, it is possible that it would have raised legal concerns regarding U.S. compliance with treaty obligations.

Executive and Judicial Authorities

Several other bills addressed broad issues related to judicial authority to review habeas corpus petitions or to executive authority to detain enemy belligerents or prosecute detainees. Some bills would have restricted the Department of Justice's use of federal funds to conduct prosecutions of Guantanamo detainees or others with possible ties to the 9/11 terrorist attacks. For example, S. 2795 and H.R. 4542 would have prohibited the use of such funds by the Department of Justice to prosecute Guantanamo detainees in criminal courts in the United States or its territories or possessions. Although the bills did not define the term "criminal court," it is likely that it would have extended to prosecutions in both Article III courts and in any military commissions that may be established in the United States. This funding restriction would not appear to have precluded the Department of Defense from prosecuting detainees before military tribunals. Companion bills, S. 2977 and H.R. 4556 , might have applied to individuals other than Guantanamo detainees. They would have prohibited the Department of Justice's use of federal funds to commence or continue the prosecution in an Article III court of any individual who: is suspected of "planning, authorizing, organizing, committing, or aiding the attacks on the United States and its citizens that occurred on September 11, 2001"; is not a citizen of the United States; and is subject to proceedings before a military commission. An alternative proposal, H.R. 4588 , would have affirmatively required that Guantanamo detainees be tried only in military commissions.

Several proposals would have reaffirmed or extended executive authority to detain persons associated with U.S. operations against Al Qaeda, the Taliban, and other entities. S. 3707 , the Terrorist Detention Review Reform Act, would have "reaffirm[ed]" the President's authority "to detain unprivileged enemy belligerents in connection with the continuing armed conflict with al Qaeda, the Taliban, and associated forces, regardless of the place of capture, until the termination of hostilities." The bill would have also established jurisdiction, venue, and procedures for habeas corpus challenges raised by persons detained as "unprivileged enemy belligerents" at Guantanamo or other locations who are subject to the habeas jurisdiction of the federal courts. Similar authorities would have been provided by Enemy Combatant Detention Review Act of 2009 ( H.R. 630 ). Another bill, the Protecting America's Communities Act ( S. 1071 ), contained a similar provision concerning the President's authority to detain persons in the conflict with Al Qaeda and the Taliban. These provisions would have perhaps broadened the President's authority to preventively detain enemy belligerents as part of post-9/11 military operations. In Hamdi v. Rumsfeld , the Supreme Court held that the 2001 Authorization to Use Military Force authorized the President to preventively detain enemy combatants captured during hostilities in Afghanistan but did not address whether such authority extends to captures made in other locations. The aforementioned bills appear to have expressly authorized the detention of persons captured away from the Afghan zone of combat.

The Terrorist Detainees Procedures Act of 2009, H.R. 1315 , would likewise have granted exclusive jurisdiction over habeas challenges to the U.S. District Court in the District of Columbia and stay pending habeas cases. However, in contrast to H.R. 630 , it would have stayed habeas proceedings not to facilitate trials before military commissions but to await the outcome of status review hearings held by panels of military judges. In addition, the time period in which judges would render decisions in the status review process would have been sharply limited—to 120 days from the legislation's enactment for all detainees, unless a military judge extended that date for good cause.

Finally, several House resolutions would have possibly facilitated greater congressional oversight. Namely, H.Res. 920 , H.Res. 922 , and H.Res. 923 required or requested the transmittal to the House of Representatives of relevant documents or information in the possession of the Attorney General, Secretary of Homeland Security, and the President, respectively, relating to Guantanamo detainees. In each case, the request or direction included a 14-day timeline for transmittal.

Conclusion

Soon after taking office, President Obama issued an executive order to effectuate the closure of the Guantanamo detention facility within a year. The announced deadline for closing the facility has not been met, arguably in part because of a series of congressional enactments limiting executive discretion to transfer or release detainees into the United States. Congress has passed numerous measures which suggest strong opposition to the possibility that a detainee might be released into the United States, even if he is found not to have been an enemy belligerent. Until recently, Congress had been less resistant to the possibility of transferring detainees into the United States for criminal prosecution, provided that the Executive first provides Congress with a risk assessment and other information relating to the proposed transfer. However, at the end of the 111 th Congress, legislative activity involved measures to bar the transfer of detainees to the United States for any purpose, including criminal prosecution. These restrictions were ultimately enacted into law pursuant to the 2011 NDAA. By prohibiting military funds from being used to transfer or release detainees into the United States, or assist in the transfer or release of detainees into the country, the act seems to ensure that the Guantanamo detention facility remains open and at least through the 2011 fiscal year, and perhaps for the foreseeable future. Moreover, the measure appears to make military tribunals the only viable forum by which Guantanamo detainees could be tried for criminal offenses, as no civilian court operates within Guantanamo.

Other changes effected by legislation enacted in the 111 th Congress, such as the establishment of new military commission procedures, may also significantly impact the treatment and disposition of Guantanamo detainees. These and other proposals in the 111 th Congress are likely to inform future legislative debates regarding the treatment and rights of detainees at Guantanamo and elsewhere.

Appendix. Comparison of Provisions of Enacted Laws Restricting Transfer or Release into the United States