Protecting America Through Lawful Detention of Terrorists

Executive Order 13823 of January 30, 2018

Protecting America Through Lawful Detention of
Terrorists

By the authority vested in me as President by the
Constitution and the laws of the United States of
America, it is hereby ordered as follows:

Section 1. Findings. (a) Consistent with long-standing
law of war principles and applicable law, the United
States may detain certain persons captured in
connection with an armed conflict for the duration of
the conflict.

    (b) Following the terrorist attacks of September
11, 2001, the 2001 Authorization for Use of Military
Force (AUMF) and other authorities authorized the
United States to detain certain persons who were a part
of or substantially supported al-Qa'ida, the Taliban,
or associated forces engaged in hostilities against the
United States or its coalition partners. Today, the
United States remains engaged in an armed conflict with
al-Qa'ida, the Taliban, and associated forces,
including with the Islamic State of Iraq and Syria.
    (c) The detention operations at the U.S. Naval
Station Guant[aacute]namo Bay are legal, safe, humane,
and conducted consistent with United States and
international law.
    (d) Those operations are continuing given that a
number of the remaining individuals at the detention
facility are being prosecuted in military commissions,
while others must be detained to protect against
continuing, significant threats to the security of the
United States, as determined by periodic reviews.
    (e) Given that some of the current detainee
population represent the most difficult and dangerous
cases from among those historically detained at the
facility, there is significant reason for concern
regarding their reengagement in hostilities should they
have the opportunity.

Sec. 2. Status of Detention Facilities at U.S. Naval
Station Guant[aacute]namo Bay. (a) Section 3 of
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), ordering the closure of
detention facilities at U.S. Naval Station
Guant[aacute]namo Bay, is hereby revoked.

    (b) Detention operations at U.S. Naval Station
Guant[aacute]namo Bay shall continue to be conducted
consistent with all applicable United States and
international law, including the Detainee Treatment Act
of 2005.
    (c) In addition, the United States may transport
additional detainees to U.S. Naval Station
Guant[aacute]namo Bay when lawful and necessary to
protect the Nation.
    (d) Within 90 days of the date of this order, the
Secretary of Defense shall, in consultation with the
Secretary of State, the Attorney General, the Secretary
of Homeland Security, the Director of National
Intelligence, and the heads of any other appropriate
executive departments and agencies as determined by the
Secretary of Defense, recommend policies to the
President regarding the disposition of individuals
captured in connection with an armed conflict,
including policies governing transfer of individuals to
U.S. Naval Station Guant[aacute]namo Bay.
    (e) Unless charged in or subject to a judgment of
conviction by a military commission, any detainees
transferred to U.S. Naval Station Guant[aacute]namo Bay
after the date of this order shall be subject to the
procedures for periodic review established in 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), to determine whether continued law of war
detention is necessary to protect against a significant
threat to the security of the United States.

Sec. 3. Rules of Construction. (a) Nothing in this
order shall prevent the Secretary of Defense from
transferring any individual away from the U.S. Naval
Station Guant[aacute]namo Bay when appropriate,
including to effectuate an order affecting the
disposition of that individual issued by a court or
competent tribunal of the United States having lawful
jurisdiction.

    (b) Nothing in this order shall be construed to
affect existing law or authorities relating to the
detention of United States citizens, lawful permanent
residents of the United States, or any persons who are
captured or arrested in the United States.
    (c) Nothing in this order shall prevent the
Attorney General from, as appropriate, investigating,
detaining, and prosecuting a terrorist subject to the
criminal laws and jurisdiction of the United States.

Sec. 4. General Provisions. (a) Nothing in this order
shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or
the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.

    (b) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
    (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 30, 2018.