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Executive Order on Periodic Review

Executive Order on Periodic Review

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Published by: tracynimj on Mar 07, 2011
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03/07/2011

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THE WHITE HOUSEOffice of the Press SecretaryFor Immediate Release March 7, 2011EXECUTIVE ORDER- - - - - - -PERIODIC REVIEW OF INDIVIDUALSDETAINED AT GUANTÁNAMO BAY NAVAL STATION PURSUANT TO THEAUTHORIZATION FOR USE OF MILITARY FORCEBy the authority vested in me as President by theConstitution and the laws of the United States of America,including the Authorization for Use of Military Force ofSeptember 2001 (AUMF), Public Law 107-40, and in order to ensurethat military detention of individuals now held at theU.S. Naval Station, Guantánamo Bay, Cuba (Guantánamo), who weresubject to the interagency review under section 4 of ExecutiveOrder 13492 of January 22, 2009, continues to be carefullyevaluated and justified, consistent with the national securityand foreign policy interests of the United States and theinterests of justice, I hereby order as follows:Section 1. Scope and Purpose . (a) The periodic reviewdescribed in section 3 of this order applies only to thosedetainees held at Guantánamo on the date of this order, whom theinteragency review established by Executive Order 13492 has(i) designated for continued law of war detention; or(ii) referred for prosecution, except for those detaineesagainst whom charges are pending or a judgment of convictionhas been entered.(b) This order is intended solely to establish, as adiscretionary matter, a process to review on a periodic basisthe executive branch's continued, discretionary exercise ofexisting detention authority in individual cases. It does notcreate any additional or separate source of detention authority,and it does not affect the scope of detention authority underexisting law. Detainees at Guantánamo have the constitutionalprivilege of the writ of habeas corpus, and nothing in thisorder is intended to affect the jurisdiction of Federal courtsto determine the legality of their detention.(c) In the event detainees covered by this order aretransferred from Guantánamo to another U.S. detention facilitywhere they remain in law of war detention, this order shallcontinue to apply to them.Sec. 2. Standard for Continued Detention . Continued lawof war detention is warranted for a detainee subject to theperiodic review in section 3 of this order if it is necessary toprotect against a significant threat to the security of theUnited States.Sec. 3. Periodic Review . The Secretary of Defense shallcoordinate a process of periodic review of continued law of wardetention for each detainee described in section 1(a) of this
 
2order. In consultation with the Attorney General, the Secretaryof Defense shall issue implementing guidelines governing theprocess, consistent with the following requirements:(a) Initial Review . For each detainee, an initial reviewshall commence as soon as possible but no later than 1 year fromthe date of this order. The initial review will consist of ahearing before a Periodic Review Board (PRB). The review andhearing shall follow a process that includes the followingrequirements:(1) Each detainee shall be provided, in writing andin a language the detainee understands, with advancenotice of the PRB review and an unclassified summaryof the factors and information the PRB will considerin evaluating whether the detainee meets the standardset forth in section 2 of this order. The writtensummary shall be sufficiently comprehensive to provideadequate notice to the detainee of the reasons forcontinued detention.(2) The detainee shall be assisted in proceedingsbefore the PRB by a Government-provided personalrepresentative (representative) who possesses thesecurity clearances necessary for access to theinformation described in subsection (a)(4) of thissection. The representative shall advocate onbehalf of the detainee before the PRB and shall beresponsible for challenging the Government'sinformation and introducing information on behalfof the detainee. In addition to the representative,the detainee may be assisted in proceedings beforethe PRB by private counsel, at no expense to theGovernment.(3) The detainee shall be permitted to (i) present tothe PRB a written or oral statement; (ii) introducerelevant information, including written declarations;(iii) answer any questions posed by the PRB; and(iv) call witnesses who are reasonably available andwilling to provide information that is relevant andmaterial to the standard set forth in section 2 ofthis order.(4) The Secretary of Defense, in coordination withother relevant Government agencies, shall compile andprovide to the PRB all information in the detaineedisposition recommendations produced by the Task Forceestablished under Executive Order 13492 that isrelevant to the determination whether the standard insection 2 of this order has been met and on which theGovernment seeks to rely for that determination. Inaddition, the Secretary of Defense, in coordinationwith other relevant Government agencies, shall compileany additional information relevant to thatdetermination, and on which the Government seeks torely for that determination, that has become availablesince the conclusion of the Executive Order 13492review. All mitigating information relevant to thatdetermination must be provided to the PRB.
 
3(5) The information provided in subsection (a)(4)of this section shall be provided to the detainee'srepresentative. In exceptional circumstances where itis necessary to protect national security, includingintelligence sources and methods, the PRB maydetermine that the representative must receive asufficient substitute or summary, rather than theunderlying information. If the detainee isrepresented by private counsel, the informationprovided in subsection (a)(4) of this section shallbe provided to such counsel unless the Governmentdetermines that the need to protect national security,including intelligence sources and methods, or lawenforcement or privilege concerns, requires theGovernment to provide counsel with a sufficientsubstitute or summary of the information. Asufficient substitute or summary must provide ameaningful opportunity to assist the detainee duringthe review process.(6) The PRB shall conduct a hearing to consider theinformation described in subsection (a)(4) of thissection, and other relevant information provided bythe detainee or the detainee's representative orcounsel, to determine whether the standard insection 2 of this order is met. The PRB shallconsider the reliability of any information providedto it in making its determination.(7) The PRB shall make a prompt determination, byconsensus and in writing, as to whether the detainee'scontinued detention is warranted under the standard insection 2 of this order. If the PRB determines thatthe standard is not met, the PRB shall also recommendany conditions that relate to the detainee's transfer.The PRB shall provide a written summary of any finaldetermination in unclassified form to the detainee, ina language the detainee understands, within 30 days ofthe determination when practicable.(8) The Secretary of Defense shall establish asecretariat to administer the PRB review and hearingprocess. The Director of National Intelligence shallassist in preparing the unclassified notice and thesubstitutes or summaries described above. Otherexecutive departments and agencies shall assist in theprocess of providing the PRB with information requiredfor the review processes detailed in this order.(b) Subsequent Full Review . The continued detention ofeach detainee shall be subject to subsequent full reviews andhearings by the PRB on a triennial basis. Each subsequentreview shall employ the procedures set forth in section 3(a) ofthis order.(c) File Reviews . The continued detention of eachdetainee shall also be subject to a file review every 6 monthsin the intervening years between full reviews. This file reviewwill be conducted by the PRB and shall consist of a review ofany relevant new information related to the detainee compiled bythe Secretary of Defense, in coordination with other relevantagencies, since the last review and, as appropriate, informationconsidered during any prior PRB review. The detainee shall be

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