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
Guantánamo 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
Federal Register
Vol. 76, No. 47
Thursday, March 10, 2011
Title 3—
Executive Order 13567 of March 7, 2011
The President
Periodic Review of Individuals Detained at Guantánamo 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, Guantánamo Bay, Cuba (Guantánamo), 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 Guantánamo 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 Guantánamo 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.
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(c) In the event detainees covered by this order are transferred from
Guantánamo 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.
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(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.
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(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.
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(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;
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(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
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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.
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(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.
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(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.
THE WHITE HOUSE,
March 7, 2011.
[FR Doc. 2011–5728
Filed 3–9–11; 11:15 am]
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