[Federal Register Volume 74, Number 16 (Tuesday, January 27, 2009)]
[Presidential Documents]
[Pages 4897-4900]
From the Federal Register Online via the Government Printing 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
(s)>
