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No More Guantánamos thanks Jeanne Herrick-Stare, creator of TorturesNotUs and now Policy Counsel for the Center for Victims of Torture, for her compilation and analysis of these materials. Reproduced with permission.

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Legal Issues

Congressional Research Service report, "Closing the Guantanamo Detention Center: Legal Issues," February 11, 2011

111th Congress:  Legislation


Accountability for Bush administration policies and actions:

H.Res. 383:  "Establishing a Select Committee to review national security laws, policies, and practices."
Sponsor:  Rep. Lee, D-CA (introduced 30 April 2009).  Co-sponsors: 2
Referred to:  House Rules Committee.
Last major action:  Referred to committee.
H.R. 104:  "To Establish a National Commission on Presidential War Powers and Civil Liberties."
Sponsor:  Rep. Nadler, D-NY (introduced 6 Jan 2009).  Co-sponsors:  24
Referred to:  House Armed Services Cmtee; House Permanent Select Committee on Intelligence; House Judiciary Committee; House Foreign Affairs Committee.
Last major action:  Referred to committee.

State Secrets:

S. 417:  "A Bill to Enact a Safe, Fair, and Responsible State Secrets Privilege Act"
Sponsor:  Sen. Leahy, D-VT (introduced 11 Feb 2009).  Co-sponsors: 5
Referred to:  Senate Judiciary Committee
Last major action;  Referred to committee.
H.R. 984:  "To Provide Safe, Fair, and Responsible Procedures and Standards for Resolving Claims of State Secrets Privilege"
Sponsor: Rep. Nadler, D-NY (introduced 11 Feb 2009).  Co-sponsors: 6
Referred to: House Judiciary Committee.
Last major action:  Referred to committee.

G'Bay  detainee transfers to U.S. facilities:

H.R. 633: "To prohibit the use of funds to transfer enemy combatants detained by the United States at Naval Station, Guantanamo Bay, Cuba, to the Naval Consolidated Brig, Miramar, California, or the Camp Pendleton Base Brig, Camp Pendleton, California, or to construct facilities for such enemy combatants at such locations."
Sponsor: Rep. Hunter, R-CA52nd (introduced 22 Jan 2009).  Co-sponsors: 3
Committees: House Committee on Armed Services.
Latest major action:  Referred to committee.
S. 291: "Guantanamo Bay Detention Facility Safe Closure Act of 2009"
Sponsor:  Sen. Brownback, R-KS (introduced 21 Jan 2009).  Co-sponsors:  2.
Committees:  Armed Services Committee.
Latest major action:  Referred to committee.
This bill would require 90-day notice on closure of G'Bay or transfer of detainees from that facility to a facility within the 50 U.S. states.  It would also mandate a study on security, logistics, and alternatives before taking action on closure or transfer.

Presidential signing statements:

S. 875:  "A bill to regulate the judicial use of presidential signing statements in the interpretation of Acts of Congress."
Sponsor:  Sen. Specter, D-PA (introduced 23 April 2009).  Co-sponsors:  2
Committees:  Judiciary Committee.
Last major action:  Referred to committee.
This bill would instruct the courts not to rely on presidential signing statements when interpreting the meaning of any statute.

Multi-topic legislation: 

S. 147:   "A bill to require the closure of the detention facility at Guantanamo Bay, Cuba, to limit the use of certain interrogation techniques, to prohibit interrogation by contractors, to require notification of the International Committee of the Red Cross of detainees, and for other purposes. " 
Sponsor:  Sen. Feinstein, D-CA (introduced 6 Jan 2009).  Co-sponsors: 3.
Committees: Senate Select Committee on the Intelligence.
Latest major action:  Referred to committee.
Sen. Feinstein's introductory remarks and the text of the bill as introduced are preserved in this Congressional Record pdf.
H.R. 374:  "Lawful Interrogation and Detention Act."
Sponsor:  Rep. Harman, D-CA (introduced 9 Jan 2009).  Co-sponsors:  4
Committees:  House Select Intelligence Committee.
Latest major action:  Referred to committee.
[Ed. note:  As introduced, H.R. 374 is identical to S. 147, except that S. 147 includes a provision that G'Bay detainees be held under the laws of war - a provision not included in H.R. 374. Given the variety of circumstances under which G'Bay detainees were arrested / captured / bound over to the U.S. authorities, together with the limitation of basic procedural rights provided by the laws of war, this legislation is stronger WITHOUT the provision.].
H.R. 1315:  'Terrorist Detainees Procedures Act."  
Sponsor: Rep. Schiff (D-CA), introduced 4 Mar 2009.  Co-sponsors:  0.
Committees:  House Judiciary Committee.
Last major action:  Referred to committee.
This bill would close G'Bay; establish a new procedure under military judges to replace the CSRT for determination of detainee status; repeal the Military Commissions Act of 2006; and require the President to report to Congress all correlative statutes that should be revised.

111th Congress:  Hearings/Reports/Letters

28 Apr 2009:  House Judiciary Committee.  Chairman Conyers (D-MI) and Rep. Nadler (D-NY), joined by 14 other Democratic members of the committee signed a letter to Attny Gen. Holder, requesting appointment of special counsel to investigate and, where appropriate, prosecute, allegations of torture used against detainees during the Bush administration.
22 Apr 2009:  Senate Select Intelligence Committee, Sen. Rockefeller (D-WV), Chair.  Newly-declassified narrative regarding advice provided by DoJ to the CIA on the legality of the CIA's use of certain interrogation techniques, dating from 2002-2007.  (This narrative was under review and denied declassification during the Bush administration.  It was not approved for declassification until the Obama administration.  Because of this time delay, it does not include information contained in the four memos that were declassified and released 16 Apr 2009.)
4 Mar 2009:  Senate Judiciary Committee, Sen. Leahy (D-VT), Chair.  Hearing on the use of a nonpartisan commission of inquiry concerning troubling post-9/11 U.S. use of indefinite detention, disappearances, torture, rendition to torture, and failure to honor U.S. treaty and constitutional obligations.  Link to Sen. Judiciary Cmtee website includes testimony submitted by witnesses, as well as statements by Sens. Leahy and Feingold.

110th Congress:  Hearings/Reports

22 Apr 2009:  Senate Armed Services Committee.  Sen. Levin (D-MI), Chair.  "Inquiry Into the Treatment of Detainees in U.S. Custody,"  Summaries of portions of this 263-page report were released earlier and were the subject of committee hearings (see below). The New York Times article is a good summary of and report about the SASC's revelations.
17 June and 25 Sept 2008:  Senate Armed Services Committee, Sen. Levin (D-MI), chair.  These hearings were part of the investigation pursued by the SASC on the topic:  The Treatment of Detainees in U.S. Custody.(html version; here's a link to the pdf version).  The committee published an Executive Summary and Conclusions in Dec 2008, as well as a report in two parts, Part I (June) and Part II (Sept).  Here's the NYTimes article summarizing the reports.
6 June 2008:  Letter requesting appointment of a special prosecutor to investigate whether Bush administration policies on interrogation techniques violated federal criminal law.  Signed by 56 members of the House of Representatives to AG Mukasey.

110th Congress: Legislation

[Ed. note:  These entries will be edited / deleted when the entries are overcome by actions by the 111th Congress and the new administration.]

Habeas restoration: 

To Restore Habeas Corpus for Individuals Detained ... at Guantanamo Bay, Cuba ... (H.R. 2826, Rep. Skelton, D-MO), a bill to restore recognition of the protections of habeas corpus for U.S. detainees at Guantanamo.  Its corollary (although not identical) measure in the Senate is The Habeas Corpus Restoration Act (S. 185, Sen. Specter, R-PA).
Enemy Combatant Detention Review Act of 2008 (H.R. 6705, Rep. Smith, R-TX, with Reps. Boehner, R-OH, Blunt R-MD, and Hunter, R-CA).  This is a Republican effort to modify habeas procedures in U.S. federal courts post-Boumediene, to be applied to those deemed "enemy combatants" by the President.  Note:  explicitly acknowledges the existence of armed conflict status with al Qaeda and the Taliban, perhaps serving as congressional authorization for executive branch actions.  Senate corollary is S. 3401, introduced by Sens. Graham (R-SC) and Lieberman (I-CN).

Interrogation Techniques: 

To Amend the Detainee Treatment Act ... [to include waterboarding in the definition of cruel, inhuman, and degrading treatment] (H.R. 5460, Rep. Eshoo, D-CA).  

Reformation of the MCA:  

Restoring the Constitution Act (S. 576, Sen. Dodd, D-CT; H.R. 1415, Rep. Nadler, D-NY).  Would amend certain provisions of the Military Commissions Act antithetical to prevention of torture and abusive conduct. Section-by-section description here.


Rendition to Torture:  

Torture Outsourcing Prevention Act (H.R. 1352, Rep. Markey, D-MA).  Addresses U.S. extraordinary rendition of enemy combatant suspects to detention and interrogation in  countries known to have practiced torture, under "assurances" of humane treatment.
Restoring America's Integrity Act (S. 3437, Sen. Feinstein, D-CA, with Sens. Feingold, D-WI, Hagel, R-NE, Rockefeller, D-WV, Whitehouse, D-RI, and Wyden, D-OR).  Would require ICRC (Red Cross) access to all detainees held by U.S. [addressing secret detentions, "ghost detainees," and disappearances in U.S. custody].

Videotaping interrogations: 

Detainee Interrogation Recording Act of 2007 (H.R. 4660, Rep. Holt, D-NJ).  As the name implies, requires recording of U.S.  interrogation sessions.

U.S. Statutes (selected)

Military Commissions Act of 2006 ("MCA"), Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006)
  • CRS report: for Congress  The Military Commissions Act of 2006:  Analysis of Procedural Rules and Comparison with Previous Department of Defense rules and the Uniform Code of Military Justice  (CRS:  RL33688)
Detainee Treatment Act  of 2005. Part of the Department of Defense Appropriations Act of 2006 (Title X, H.R. 2863)(42 U.S.C. 2000dd; Public Law 109-163).  Prohibits the “cruel, inhuman, or degrading treatment or punishment” of detainees and provides for “uniform standards” for interrogation. The Act also removed the federal courts’ jurisdiction over detainees wishing to challenge the legality of their detention, stating that “no court, justice or judge shall have jurisdiction to hear or consider” applications on behalf of Guantanamo detainees.  (description from the Council on Foreign Relations).
  CRS Report for Congress:  "Interrogation of Detainees:  Requirements of the Detainee Treatment Act ," updated 23 Jan 2009 (order code RL 33655).
Authorization for the Use of Military Force  (Pub.L. 107-40, 115 Stat. 224).  18 Sept 2001.  Congressional joint resolution authorizing U.S. use of military force in response to the 9/11 attack.  The Obama administration bases continued detention of suspected al-Qaida and Taliban irregular fighters on this authorization.  See 13 Mar 2009 government filing in G'Bay habeas cases, D.C. federal district court).
War Crimes Act of 1996, 18 USC 2441.  The law initially criminalized grave breaches of the Geneva Conventions but was amended without a hearing the following year to include violations of Common Article 3.
  CRS Report for Congress:  "The War Crimes Act: Current Issues," updated 22 Jan 2009(order code RL 33662).
Classified Information Protection Act ("CIPA"), 18 USC app. 3 sec. 1 et seq.  The procedure, originally enacted in 1980, by which federal courts protect classified information during criminal cases.