announced that he had asked DoD to designate a site in the United States where military commissions can be held. 58. In signing the National Defense Authorization Act (NDAA) for Fiscal Year 2013, Public Law 112-239, on January 2, 2013, President Obama objected to restrictions contained in the statute on using appropriated funds for fiscal year 2013 to transfer Guantanamo detainees into the United States for any purpose, including trial, and to unwarranted restrictions on executive branch authority to transfer detainees to foreign countries. The President stated that these provisions would, under certain circumstances, violate constitutional separation of powers principles, and that his Administration will interpret them to avoid constitutional conflict. President Obama objected to the same restrictions in signing the NDAA for fiscal years 2011 and 2012. Response to issues raised in Question 8(c). 59. The individuals detained at Guantanamo pursuant to the 2001 AUMF, as informed by the laws of war, are detained as “persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or coalition partners.” 60. Pursuant to the decision in Boumediene v. Bush, 553 U.S. 723 (2008) (upholding constitutional habeas corpus jurisdiction over claims of aliens detained at Guantanamo), detainees have continued to challenge the legality of detention via habeas corpus petitions in the U.S. federal district court in the District of Columbia, with a right of appeal to the D.C. Circuit Court of Appeals. These courts are part of the independent judicial branch of the U.S. government, and are separate from the Executive Branch (which includes the military). Each detainee held by the United States in law of war detention at Guantanamo is entitled to petition the U.S. federal courts for habeas corpus review of the lawfulness of his detention. Many Guantanamo detainees have availed themselves of this right, and the district and appellate courts have completed their review of approximately 50 habeas cases to date. All of the detainees who have prevailed in habeas proceedings under orders that are no longer subject to appeal have either been repatriated or resettled, or have received offers of resettlement. Approximately 14 detainees have been released after winning their habeas cases in federal courts.
response to Questions 8 and 11. Assignment of responsibility within the U.S. government for investigating alleged violations of this law and policy necessarily depends on the specific facts and circumstances of the allegations. If criminal violations of federal law are suspected, DOJ may investigate. In other cases, the Inspector General’s office or another component of the agency involved may investigate. 73. Informed in part by the DHS Office of Inspector General’s (DHS/OIG) report on the Maher Arar removal matter, which is available in redacted form at , the Special Task Force made a series of recommendations on the implementation of Article 3 of the Convention, including consideration of diplomatic assurances in immigration removal proceedings. 74. In November 2011, DHS/OIG completed a report on DHS practices and regulations implementing Article 3 in the removal context, including a discussion of the process for considering diplomatic assurances in removal This extensive report, including the DHS response, is available in redacted form at . As recognized in the DHS/OIG report, DHS has established significant procedural safeguards for removal cases in which reliable diplomatic assurances have been obtained by DOS and transmitted to DHS pursuant to law. 75. The United States is not aware of any cases in which humane treatment assurances have not been honored in the case of an individual transferred from the United States or Guantanamo since the Special Task Force report was issued in August 2009. Response to issues raised in Question 11(a). 76. For the United States, the critical determination in the context of any transfer of an individual to a foreign country is whether it is more likely than not that the person would be tortured. U.S. consideration and use of assurances from foreign governments regarding the treatment of people who may be transferred to foreign countries, where such assurances are relevant, factor into this determination. 77. As noted, in August 2009 the Special Task Force made recommendations to the President with respect to all scenarios in which the United States transfers or facilitates the transfer of a person from one country to another or from U.S. custody to the custody of another country. The Special Task Force recommendations were accepted by the President. Several recommendations were aimed at clarifying and strengthening U.S. procedures for obtaining and evaluating diplomatic assurances from receiving countries for those transfers in