Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force

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.

(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.

    (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

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.

    (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.