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United States: Three Executive Orders Affecting Detention of Enemy Combatants

(Feb. 26, 2009) On January 22, 2009, President Barack Obama signed three executive orders relating to persons detained by the United States as enemy combatants.

One executive order mandates closure within one year of the detention facility at the U.S. Naval Station at Guantanamo Bay, Cuba. It requires U.S. Government officials to review the status of each detainee at Guantanamo to determine whether the Government should continue to hold the detainee, transfer or release him to a third country, or prosecute him for criminal offenses. The executive order halts all military commission proceedings pending this status review. The executive order requires that detainees be held in conformity with article 3 of the Geneva Conventions. (Review and Disposition of Individuals Detained at the Guantanamo Naval Base and Closure of Detention Facilities, Executive Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 27, 2009), available at http://edocket.access.gpo.gov/2009/pdf/E9-1893.pdf.)

A second executive order establishes an interagency Special Task Force on Detainee Disposition to identify “lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations” that “are consistent with the national security and foreign policy interests of the United States and the interests of justice.” The Special Task Force is required to report its findings to the President within 180 days. (Review of Detention Policy Options, Executive Order No. 13,493, 74 Fed. Reg. 4901 (Jan. 27, 2009), available at http://edocket.access.gpo.gov/2009/pdf/E9-1895.pdf.)

A third executive order provides that all U.S. Government interrogations of detainees in an armed conflict comply with common article 3 of the Geneva Conventions and the standards set forth in the Army Field Manual interrogation guidelines. It forbids U.S. Government officials from relying on any interpretation of the law regarding interrogations issued by the U.S. Department of Justice between September 11, 2001, and January 20, 2009. It requires the CIA to close any detention facilities it operates and orders all U.S. Government agencies to provide the International Red Cross with access to detainees. It also establishes an interagency Special Task Force on Interrogation and Transfer Policies to review whether further guidance beyond the Army Field Guide is necessary and to review the practice of transferring detainees to third countries to ensure that such practice does not result in torture and otherwise complies with the laws, international obligations, and policies of the United States. (Ensuring Lawful Interrogations, Executive Order No. 13,491, 74 Fed. Reg. 4893 (Jan. 27, 2009), available at http://edocket.access.gpo.gov/2009/pdf/E9-1885.pdf.)