[Federal Register Volume 76, Number 47 (Thursday, March 10, 2011)]
[Presidential Documents]
[Pages 13277-13281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5728]



[[Page 13275]]

Vol. 76

Thursday,

No. 47

March 10, 2011

Part II





The President





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Executive Order 13567--Periodic Review of Individuals Detained at 
Guant[aacute]namo Bay Naval Station Pursuant to the Authorization for 
Use of Military Force



Notice of March 8, 2011--Continuation of the National Emergency With 
Respect to Iran
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                         Presidential Documents 
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  Federal Register / Vol. 76, No. 47 / Thursday, March 10, 2011 / 
Presidential Documents  

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 Title 3--
 The President

[[Page 13277]]

                Executive Order 13567 of March 7, 2011

                
Periodic Review of Individuals Detained at 
                Guant[aacute]namo Bay Naval Station Pursuant to the 
                Authorization for Use of Military Force

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, including the Authorization for Use of 
                Military Force of September 2001 (AUMF), Public Law 
                107-40, and in order to ensure that military detention 
                of individuals now held at the U.S. Naval Station, 
                Guant[aacute]namo Bay, Cuba (Guant[aacute]namo), who 
                were subject to the interagency review under section 4 
                of Executive Order 13492 of January 22, 2009, continues 
                to be carefully evaluated and justified, 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. Scope and Purpose. (a) The periodic review 
                described in section 3 of this order applies only to 
                those detainees held at Guant[aacute]namo on the date 
                of this order, whom the interagency review established 
                by Executive Order 13492 has (i) designated for 
                continued law of war detention; or (ii) referred for 
                prosecution, except for those detainees against whom 
                charges are pending or a judgment of conviction has 
                been entered.

                    (b) This order is intended solely to establish, as 
                a discretionary matter, a process to review on a 
                periodic basis the executive branch's continued, 
                discretionary exercise of existing detention authority 
                in individual cases. It does not create any additional 
                or separate source of detention authority, and it does 
                not affect the scope of detention authority under 
                existing law. Detainees at Guant[aacute]namo have the 
                constitutional privilege of the writ of habeas corpus, 
                and nothing in this order is intended to affect the 
                jurisdiction of Federal courts to determine the 
                legality of their detention.
                    (c) In the event detainees covered by this order 
                are transferred from Guant[aacute]namo to another U.S. 
                detention facility where they remain in law of war 
                detention, this order shall continue to apply to them.

                Sec. 2. Standard for Continued Detention. Continued law 
                of war detention is warranted for a detainee subject to 
                the periodic review in section 3 of this order if it is 
                necessary to protect against a significant threat to 
                the security of the United States.

                Sec. 3. Periodic Review. The Secretary of Defense shall 
                coordinate a process of periodic review of continued 
                law of war detention for each detainee described in 
                section 1(a) of this order. In consultation with the 
                Attorney General, the Secretary of Defense shall issue 
                implementing guidelines governing the process, 
                consistent with the following requirements:

                    (a) Initial Review. For each detainee, an initial 
                review shall commence as soon as possible but no later 
                than 1 year from the date of this order. The initial 
                review will consist of a hearing before a Periodic 
                Review Board (PRB). The review and hearing shall follow 
                a process that includes the following requirements:

(1) Each detainee shall be provided, in writing and in a language the 
detainee understands, with advance notice of the PRB review and an 
unclassified summary of the factors and information the PRB will consider 
in evaluating whether the detainee meets the standard set forth in section 
2 of this order. The written summary shall be sufficiently comprehensive to 
provide adequate notice to the detainee of the reasons for continued 
detention.

[[Page 13278]]

(2) The detainee shall be assisted in proceedings before the PRB by a 
Government-provided personal representative (representative) who possesses 
the security clearances necessary for access to the information described 
in subsection (a)(4) of this section. The representative shall advocate on 
behalf of the detainee before the PRB and shall be responsible for 
challenging the Government's information and introducing information on 
behalf of the detainee. In addition to the representative, the detainee may 
be assisted in proceedings before the PRB by private counsel, at no expense 
to the Government.

(3) The detainee shall be permitted to (i) present to the PRB a written or 
oral statement; (ii) introduce relevant information, including written 
declarations; (iii) answer any questions posed by the PRB; and (iv) call 
witnesses who are reasonably available and willing to provide information 
that is relevant and material to the standard set forth in section 2 of 
this order.

(4) The Secretary of Defense, in coordination with other relevant 
Government agencies, shall compile and provide to the PRB all information 
in the detainee disposition recommendations produced by the Task Force 
established under Executive Order 13492 that is relevant to the 
determination whether the standard in section 2 of this order has been met 
and on which the Government seeks to rely for that determination. In 
addition, the Secretary of Defense, in coordination with other relevant 
Government agencies, shall compile any additional information relevant to 
that determination, and on which the Government seeks to rely for that 
determination, that has become available since the conclusion of the 
Executive Order 13492 review. All mitigating information relevant to that 
determination must be provided to the PRB.

(5) The information provided in subsection (a)(4) of this section shall be 
provided to the detainee's representative. In exceptional circumstances 
where it is necessary to protect national security, including intelligence 
sources and methods, the PRB may determine that the representative must 
receive a sufficient substitute or summary, rather than the underlying 
information. If the detainee is represented by private counsel, the 
information provided in subsection (a)(4) of this section shall be provided 
to such counsel unless the Government determines that the need to protect 
national security, including intelligence sources and methods, or law 
enforcement or privilege concerns, requires the Government to provide 
counsel with a sufficient substitute or summary of the information. A 
sufficient substitute or summary must provide a meaningful opportunity to 
assist the detainee during the review process.

(6) The PRB shall conduct a hearing to consider the information described 
in subsection (a)(4) of this section, and other relevant information 
provided by the detainee or the detainee's representative or counsel, to 
determine whether the standard in section 2 of this order is met. The PRB 
shall consider the reliability of any information provided to it in making 
its determination.

(7) The PRB shall make a prompt determination, by consensus and in writing, 
as to whether the detainee's continued detention is warranted under the 
standard in section 2 of this order. If the PRB determines that the 
standard is not met, the PRB shall also recommend any conditions that 
relate to the detainee's transfer. The PRB shall provide a written summary 
of any final determination in unclassified form to the detainee, in a 
language the detainee understands, within 30 days of the determination when 
practicable.

(8) The Secretary of Defense shall establish a secretariat to administer 
the PRB review and hearing process. The Director of National Intelligence 
shall assist in preparing the unclassified notice and the substitutes or 
summaries described above. Other executive departments and agencies shall 
assist in the process of providing the PRB with information required for 
the review processes detailed in this order.

[[Page 13279]]

                    (b) Subsequent Full Review. The continued detention 
                of each detainee shall be subject to subsequent full 
                reviews and hearings by the PRB on a triennial basis. 
                Each subsequent review shall employ the procedures set 
                forth in section 3(a) of this order.
                    (c) File Reviews. The continued detention of each 
                detainee shall also be subject to a file review every 6 
                months in the intervening years between full reviews. 
                This file review will be conducted by the PRB and shall 
                consist of a review of any relevant new information 
                related to the detainee compiled by the Secretary of 
                Defense, in coordination with other relevant agencies, 
                since the last review and, as appropriate, information 
                considered during any prior PRB review. The detainee 
                shall be permitted to make a written submission in 
                connection with each file review. If, during the file 
                review, a significant question is raised as to whether 
                the detainee's continued detention is warranted under 
                the standard in section 2 of this order, the PRB will 
                promptly convene a full review pursuant to the 
                standards in section 3(a) of this order.
                    (d) Review of PRB Determinations. The Review 
                Committee (Committee), as defined in section 9(d) of 
                this order, shall conduct a review if (i) a member of 
                the Committee seeks review of a PRB determination 
                within 30 days of that determination; or (ii) consensus 
                within the PRB cannot be reached.

                Sec. 4. Effect of Determination to Transfer. (a) If a 
                final determination is made that a detainee does not 
                meet the standard in section 2 of this order, the 
                Secretaries of State and Defense shall be responsible 
                for ensuring that vigorous efforts are undertaken to 
                identify a suitable transfer location for any such 
                detainee, outside of the United States, consistent with 
                the national security and foreign policy interests of 
                the United States and the commitment set forth in 
                section 2242(a) of the Foreign Affairs Reform and 
                Restructuring Act of 1998 (Public Law 105-277).

                    (b) The Secretary of State, in consultation with 
                the Secretary of Defense, shall be responsible for 
                obtaining appropriate security and humane treatment 
                assurances regarding any detainee to be transferred to 
                another country, and for determining, after 
                consultation with members of the Committee, that it is 
                appropriate to proceed with the transfer.
                    (c) The Secretary of State shall evaluate humane 
                treatment assurances in all cases, consistent with the 
                recommendations of the Special Task Force on 
                Interrogation and Transfer Policies established by 
                Executive Order 13491 of January 22, 2009.

                Sec. 5. Annual Committee Review. (a) The Committee 
                shall conduct an annual review of sufficiency and 
                efficacy of transfer efforts, including:

(1) the status of transfer efforts for any detainee who has been subject to 
the periodic review under section 3 of this order, whose continued 
detention has been determined not to be warranted, and who has not been 
transferred more than 6 months after the date of such determination;

(2) the status of transfer efforts for any detainee whose petition for a 
writ of habeas corpus has been granted by a U.S. Federal court with no 
pending appeal and who has not been transferred;

(3) the status of transfer efforts for any detainee who has been designated 
for transfer or conditional detention by the Executive Order 13492 review 
and who has not been transferred; and

(4) the security and other conditions in the countries to which detainees 
might be transferred, including a review of any suspension of transfers to 
a particular country, in order to determine whether further steps to 
facilitate transfers are appropriate or to provide a recommendation to the 
President regarding whether continuation of any such suspension is 
warranted.

                    (b) After completion of the initial reviews under 
                section 3(a) of this order, and at least once every 4 
                years thereafter, the Committee shall review

[[Page 13280]]

                whether a continued law of war detention policy remains 
                consistent with the interests of the United States, 
                including national security interests.

                Sec. 6. Continuing Obligation of the Departments of 
                Justice and Defense to Assess Feasibility of 
                Prosecution. As to each detainee whom the interagency 
                review established by Executive Order 13492 has 
                designated for continued law of war detention, the 
                Attorney General and the Secretary of Defense shall 
                continue to assess whether prosecution of the detainee 
                is feasible and in the national security interests of 
                the United States, and shall refer detainees for 
                prosecution, as appropriate.

                Sec. 7. Obligation of Other Departments and Agencies to 
                Assist the Secretary of Defense. All departments, 
                agencies, entities, and officers of the United States, 
                to the maximum extent permitted by law, shall provide 
                the Secretary of Defense such assistance as may be 
                requested to implement this order.

                Sec. 8. Legality of Detention. The process established 
                under this order does not address the legality of any 
                detainee's law of war detention. If, at any time during 
                the periodic review process established in this order, 
                material information calls into question the legality 
                of detention, the matter will be referred immediately 
                to the Secretary of Defense and the Attorney General 
                for appropriate action.

                Sec. 9. Definitions. (a) ``Law of War Detention'' 
                means: detention authorized by the Congress under the 
                AUMF, as informed by the laws of war.

                    (b) ``Periodic Review Board'' means: a board 
                composed of senior officials tasked with fulfilling the 
                functions described in section 3 of this order, one 
                appointed by each of the following departments and 
                offices: the Departments of State, Defense, Justice, 
                and Homeland Security, as well as the Offices of the 
                Director of National Intelligence and the Chairman of 
                the Joint Chiefs of Staff.
                    (c) ``Conditional Detention'' means: the status of 
                those detainees designated by the Executive Order 13492 
                review as eligible for transfer if one of the following 
                conditions is satisfied: (1) the security situation 
                improves in Yemen; (2) an appropriate rehabilitation 
                program becomes available; or (3) an appropriate third-
                country resettlement option becomes available.
                    (d) ``Review Committee'' means: a committee 
                composed of the Secretary of State, the Secretary of 
                Defense, the Attorney General, the Secretary of 
                Homeland Security, the Director of National 
                Intelligence, and the Chairman of the Joint Chiefs of 
                Staff.

                Sec. 10. General Provisions. (a) Nothing in this order 
                shall prejudice the authority of the Secretary of 
                Defense or any other official to determine the 
                disposition of any detainee not covered by this order.

                    (b) This order shall be implemented subject to the 
                availability of necessary appropriations and consistent 
                with applicable law including: the Convention Against 
                Torture; Common Article 3 of the Geneva Conventions; 
                the Detainee Treatment Act of 2005; and other laws 
                relating to the transfer, treatment, and interrogation 
                of individuals detained in an armed conflict.
                    (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.

[[Page 13281]]

                    (d) Nothing in this order, and no determination 
                made under this order, shall be construed as grounds 
                for release of detainees covered by this order into the 
                United States.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    March 7, 2011.

[FR Doc. 2011-5728
Filed 3-9-11; 11:15 am]
Billing code 3195-W1-P