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 250 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.
The incoming Obama Administration has stated that the closure of the Guantanamo detention
center will be a priority, and that it will work with Congress to craft legislation to effectuate the
facility?s closure and clarify the legal status of detainees transferred to the United States. 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 in the event of executive
and/or 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.