Description

Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force (AUMF), which granted the President the authority to use all necessary and appropriate force against those ... [who] planned, authorized, committed, or aided the terrorist attacks against the United States. As part of the subsequent war on terror, many persons captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba for detention and possible prosecution before military tribunals. Although nearly 800 persons have been transferred to Guantanamo since early 2002, the substantial majority of Guantanamo detainees have ultimately been transferred to a third country for continued detention or release. The roughly 240 detainees who remain fall into three categories: (1) persons placed in non-penal, preventative detention to stop them from rejoining hostilities; (2) persons who have been brought, or are expected to be brought, before a military tribunal to face criminal charges for alleged war crimes; and (3) persons who have been cleared for transfer or release to a third country, whom the United States continues to detain pending transfer. Although the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees may seek habeas corpus review of the legality of their detention, several legal issues remain unsettled, including the scope of habeas review available to Guantanamo detainees, the remedy available for those persons found to be unlawfully held by the United States, and the extent to which other constitutional provisions extend to noncitizens held at Guantanamo. On January 22, 2009, President Barack Obama issued an Executive Order requiring the Guantanamo detention facility to be closed as soon as practicable, and no later than a year from the date of the Order. Some legislative proposals introduced during the 111th Congress would effectuate goals articulated in the Order, whereas others offer alternative approaches to closure of the detention facility and the disposition of detainees. For more information on relevant legislative proposals in the 111th Congress, see CRS Report R40419, Analysis of Selected Legislative Proposals Addressing Guantanamo Detainees, by Anna C. Henning. The closure of the Guantanamo detention facility may raise a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different than the protections owed to persons held at Guantanamo or elsewhere. This may have implications for the continued detention or prosecution of persons who are transferred to the United States. The transfer of detainees to the United States may also have immigration consequences. Notably, some detainees might qualify for asylum or other protections under immigration law. This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer or release of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought to the United States. The report also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions). Issues discussed include detainees right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases.